In the first presidential campaign following the controversial United States Supreme Court decision in Citizens United, much attention was given to the record amount of money spent on the election - close to $3 billion. Ideally, more money spent on campaigning would permit more speech and add to the public discourse, and allowing more speech would encourage and permit bad speech to be countered with good speech. In 2012, however, claims arose that the candidates were being more negative than ever, including resorting to outright deception.
Many states have laws on the books that prohibit knowingly false campaign speech on material facts when there is a showing of actual malice, but the impact of these laws is unclear. In 2012, in the midst of the discussion surrounding the negative or untrue campaign speech, the United States Supreme Court quietly denied certiorari to a case that held one such law unconstitutional. That same month, the Court decided Alvarez v. United States, which held that the government could not punish a person for knowingly telling a lie without a showing of actual harm. Ultimately, it seems that the Supreme Court’s actions are the death knell for the remaining false campaign speech statutes. Accordingly, this Article will argue that the Supreme Court needs to reconsider the protection for false speech. The Article forwards a new legal test that parallels the political speech doctrine with the commercial speech doctrine by giving less protection to knowingly false campaign speech.
Jason Zenor, A Reckless Disregard for the Truth? The Constitutional Right to Lie in Politics, 38 Campbell L. Rev. 41 (2016).