Can candidates lie & get away with it? See if First Amendment rules vary for GA elections

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Political speech is protected by the First Amendment.

Credit: freestocks.org

Like it or not, free speech includes protection for most lies and false statements, and there is no broad exception for dishonesty. As the election mud-slinging grows increasingly vile the closer Nov. 5 draws, First Amendment issues arise, of which there are few exceptions.

According to the First Amendment of the Constitution of the United States, “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble.”

Voters are subjected to a litany of information (and often misinformation) about candidates meant to sway their decisions, and frankly, there is not much the First Amendment disallows.

Discerning whether or not the candidates violate the First Amendment exists in a complicated, and sometimes impenetrable, legal space. However, generally speaking, most elements of smear campaigns are protected as free speech, according to the law.

In fact, public figures have less protection against defamation than private citizens. To violate the First Amendment, there must be “actual malice” that requires prior knowledge of a falsehood that was made with reckless disregard for the truth and the intent to deceive.

There are a few things that are not protected

The First Amendment does not protect certain kinds of rhetoric, whether it be campaign-related or not.

• Defamation: false statements of fact that harm someone’s reputation are not protected (except for the “malice standard”)
• Incitement: speech intended to incite lawless action
• True threats: statements that communicate a serious intent to commit unlawful violence against an individual or group
• Fraud: intentionally false statements made to deceive voters or gain financial advantage
• Harassment: if the campaign involves repeated, targeted actions that cause substantial emotional distress or fear for safety

Political speech gets the highest level of protection

To voters, it may seem logical that candidates must meet the highest levels of truth and veracity in their speeches or campaign materials, but that is simply not the case. In some instances, even hate speech is protected and is only illegal if it falls into one of the other categories.

The Supreme Court has historically set a precedent of leniency when it comes to matters regarding free speech, upholding the Founding Fathers’ emphasis on protecting political speech for many reasons.

• It is fundamental to democracy. In a perfect system, it allows the public to make informed decisions about leaders and government.
• It allows for autonomy of choice and makes space for a marketplace of ideas.
• It prevents censorship by government agencies and sometimes can work in favor of the public interest.

How can you protect yourself from false information during an election?

The best and most efficient way to circumvent a smear campaign and all the mud-slinging is to be responsible for your own education. It is often human nature to take sides and fall victim to confirmation bias, but the stakes are often too high when it involves an election.

There are a few strategies you can use to help filter the ugly out:

• Fact check. Use reliable, non-partisan websites to verify information. Cross-reference accusations or claims across different sources.
• Evaluate the credibility of a source. Read the “about us” section of websites and look for organizations that don’t have a political agenda of their own. Rely on original or primary sources.
• Be skeptical of all accusations. Seek out concrete and specific evidence to support a claim.
• Be willing to examine a larger context. Do not trust quotes or blurbs taken out of their original context.
• Clue into manipulation tactics: emotional, timing, propaganda.
• Hone your media literacy. Look at everything from a critical and analytical perspective.

This story comes to GPB through a reporting partnership with Macon Telegraph.