Keith Mack
The question of whether lying is against federal election law has been a topic of debate in American politics. While negative campaigning and mudslinging are common, there have been legal challenges to false statements made about political candidates during elections. In 2014, the Supreme Court considered a case, Susan B. Anthony List v. Driehaus, which challenged an Ohio law prohibiting false statements about candidates during campaigns. The case attracted attention due to concerns about restricting free speech rights under the First Amendment. While some states have laws banning false campaign speech, the government generally cannot regulate the content of political ads, and candidates are liable for their statements. Social media platforms may set their own policies, banning misleading or false claims. Ultimately, voters should be skeptical and fact-check political statements, as politicians are not legally prohibited from lying in most cases.
| Characteristics | Values |
|---|---|
| Lying during a campaign a crime? | The Supreme Court is yet to decide |
| Lying about military service a crime? | No, the Supreme Court struck down the Stolen Valor Act of 2005 |
| Lying about ballot procurement/casting/tabulation a crime? | Yes, punishable by a fine or imprisonment or both |
| Social media platforms liable for political ad lies? | No, but they may choose to ban misleading or false claims |
| Broadcast channels liable for candidate ad lies? | No, but they are responsible for other election-related content |
| Lying about political candidates during campaigns a crime? | The Supreme Court is yet to decide on Ohio's law barring such statements |
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What You'll Learn
Free speech and the First Amendment
Free speech is a cornerstone of American democracy, as enshrined in the First Amendment of the US Constitution. The First Amendment protects the freedom of speech, the freedom of the press, and the right to assemble and petition the government. In the context of political campaigns and elections, the First Amendment guarantees the right of candidates to express their views and engage in political discourse without fear of censorship or retribution.
However, the question of whether lying during an election campaign can be considered a crime has been a subject of debate and legal scrutiny. Several states, including Ohio, Arkansas, Louisiana, and North Carolina, Minnesota, Washington, and Massachusetts, have laws that seek to prohibit false statements or claims made by candidates during campaigns. These laws aim to uphold the integrity of the electoral process and protect voters from being misled or deceived.
The First Amendment, while protecting free speech, also grants certain exceptions where speech may not be protected. For instance, defamation or speech that incites imminent lawless action may fall outside the scope of the First Amendment. In the context of political campaigns, if a candidate's statement is proven to be false and made with "actual malice," it could potentially constitute defamation. However, the burden of proof in such cases is very high, and it must be demonstrated that the statement was made with knowledge of its falsity or with reckless disregard for the truth.
The Supreme Court has weighed in on the matter, striking down laws that criminalize lying in specific contexts, such as the Stolen Valor Act of 2005, which made it illegal to lie about receiving military honors. The Court has also expressed skepticism about laws that broadly restrict false statements in political campaigns, citing concerns over the government becoming the arbiter of truth in political debate, which could infringe on free speech rights.
In conclusion, while the First Amendment protects free speech in political campaigns, it does not provide absolute immunity for candidates to make false or misleading statements. The line between protected political speech and unlawful speech that causes harm remains a complex and evolving area of law, with social media platforms and broadcast channels also playing a role in shaping the landscape of political advertising and discourse.
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Defamation laws
While there are laws against defamation, politicians have a lot of leeway when it comes to making exaggerated or misleading campaign claims. This is because political speech is considered "foundational" under the First Amendment, and attempts to legislate against lying by politicians have been struck down by the courts. For instance, in 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, which criminalized lying about receiving military honors. Similarly, the Washington State Supreme Court wrote in a 2007 ruling that "the notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment."
However, this does not mean that defamation laws do not exist or are never applied in the context of political campaigns. Defamation is a false statement that is proven to be made with "actual malice," meaning "knowledge that it was false or with reckless disregard" for the truth. In the case of a public figure, such as a political candidate, defamation must be proven false by clear and convincing evidence. While it may be challenging to meet this burden of proof, it is not impossible.
The application of defamation laws in the context of political campaigns has been considered by the Supreme Court in the case of Susan B. Anthony List v. Driehaus. This case involved an anti-abortion group that planned to launch a billboard campaign accusing a Democratic representative of supporting taxpayer-funded abortions due to his support for President Obama's health care overhaul. The representative, Steven Driehaus, urged the Ohio Elections Commission to block the ads, arguing that they were false under Ohio law, which makes it illegal to knowingly or recklessly make false statements about a candidate during an election. The case attracted national attention and sparked a debate about the restriction on free speech under the First Amendment.
While the Supreme Court did not rule directly on the constitutional issue, it considered the narrower question of whether the law could be challenged before it was enforced. The outcome of this case could have had implications for similar laws in at least 15 states. It is worth noting that even Ohio's attorney general, Republican Mike DeWine, expressed concerns about the law, suggesting that it may chill constitutionally protected political speech.
In addition to defamation laws, there are also election laws that impose criminal penalties for certain types of false statements or actions. For example, under 52 U.S.C. § 20511, it is a crime to knowingly procure, cast, or tabulate ballots that are materially false, fictitious, or fraudulent under state law, with potential fines and imprisonment of up to five years.
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Social media platform policies
In the United States, there have been several attempts to legislate against lying by politicians, but they have been struck down by the courts, citing the First Amendment right to free speech. This has resulted in politicians' lies being generally legal, with social media platforms playing a significant role in disseminating false claims and shaping public opinion.
Social media platforms have become crucial tools for political organizing and spreading election-related information and disinformation. While each platform has its own policies regarding election misinformation, their enforcement has been inconsistent, impacting elections worldwide, especially in the US. Platforms like Facebook (Meta), Instagram, TikTok, Twitter, and YouTube have faced scrutiny for their inadequate policies and inconsistent enforcement.
Meta's policies, encompassing Facebook, Instagram, and WhatsApp, prohibit politicians from posting misinformation about voting and content inciting violence. They have also implemented labels and third-party fact-checking for premature claims of victory, although these policies are subject to change. Meta's ad library provides transparency regarding political ads, which are subject to stricter content moderation.
YouTube's election misinformation policy covers external links in content and prohibits reposting previously removed content or sharing content from terminated or restricted users. YouTube enforces a strike system, terminating channels after three strikes. Political ads must adhere to Google's ad policies, including verification requirements.
Twitter, under Elon Musk's ownership, has experienced flux in its misinformation policies. The platform laid off a portion of its Trust and Safety team, dissolved the Trust and Safety Council, and made cuts to its global content moderation workforce, potentially impacting its ability to combat misinformation effectively.
Other platforms, like Gab, lack explicit policies related to elections or misinformation. Gab's Terms of Service forbid illegal content and unlawful threats, including sharing personal information (doxing). Truth Social, another platform, values free expression and moderates content to prevent illegal and prohibited material.
While platforms have made efforts to address election misinformation, they often react to misinformation rather than proactively preventing it. Inconsistent enforcement across mobile and web interfaces and a focus on moderation during election cycles contribute to the challenge. The spread of false narratives and claims that undermine democratic processes remains a significant concern, highlighting the need for more comprehensive and consistently enforced policies on social media platforms.
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Election disclosure requirements
While lying in itself may not be against federal election law due to the First Amendment right to free speech, there are election disclosure requirements in place that mandate the disclosure of the sources of funding for campaigns. These disclosure requirements were introduced in 1974 with amendments to the Federal Election Campaign Act (FECA) following the Watergate scandal.
The disclosure requirements are intended to allow interested parties, such as the media and the public, to examine records that would otherwise be hidden from them. This results in closer scrutiny of facts and figures and the relationships between political actors. For example, in a 2016 case, the Grocery Manufacturers Association was accused of violating state campaign disclosure laws.
The Supreme Court has upheld the constitutionality of disclosure requirements, finding that the government's interests in transparency outweigh potential burdens on minor parties. In the case of McConnell v. Federal Election Commission (2003), the Court upheld increased disclosure requirements for advertisements mentioning specific candidates within 60 days of an election and for "soft money" contributions not coordinated with the campaigns.
However, there is ongoing debate about the extent to which disclosure requirements impinge on First Amendment freedoms of speech and association. Some states have their own laws regarding the reporting and retention of campaign contribution information, and these laws vary in their level of transparency.
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Ballot fraud
While voter fraud is a genuine concern, extensive research reveals that it is very rare. The Brennan Center's report, 'The Truth About Voter Fraud', demonstrates that most allegations of fraud are baseless, and the few remaining allegations point to irregularities and other forms of election misconduct. Similarly, a 2025 opinion piece in the Washington Post reflects on the 2020 election, stating that there was almost no fraud, including in places where ballot dropboxes were used. The piece also notes that mail-in ballots were not a significant vector for cheating, despite claims to the contrary.
However, it is important to acknowledge that no form of voting is immune to abuse. Studies have found that fraud is slightly more common with mail ballots than in-person voting. For example, during the 2020 election, batches of ballots were added to the vote count simultaneously in some cities and states, which shifted the running count. While this could be perceived as suspicious, it is essential to understand the context. In Wisconsin, for instance, the largest city, Milwaukee, reported all of its results at once, overwhelmingly favouring Biden and giving him the lead. This was not due to any conspiracy but rather a reflection of the valid ballots cast.
Despite the rarity of voter fraud, false allegations of fraud can have detrimental effects, making it harder for eligible Americans to participate in elections and undermining free and fair access to the ballot box. Therefore, while addressing voter fraud is essential, it is equally crucial to implement solutions that do not impose unnecessary barriers on lawful voters.
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Frequently asked questions
Lying during a campaign is generally considered legal due to the First Amendment right to free speech. However, there are exceptions. For example, in Ohio, it is illegal to make false statements about a political candidate during an election campaign. There are also laws against defamation, but the burden of proof is very high when it comes to public figures.
Candidates cannot be punished by the government for lying in political advertisements due to the First Amendment protection of political speech. However, if the lie falls into a category of unprotected speech, the candidate could be held liable. Social media platforms may also choose to ban misleading or false claims that could interfere with people's ability to vote.
Yes, lying about military service or medals has been deemed illegal. In 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, which criminalized lying about receiving military honors.
