Norton is the Rothgerber chair in Constitutional Law at the University of Colorado Boulder.
When regular people lie, sometimes their lies are detected, sometimes they're not. Legally speaking, sometimes they're protected by the First Amendment and sometimes not, like when they commit fraud or perjury.
But what about when government officials lie?
I take up this question in my recent book, "The Government's Speech and the Constitution." It's not that surprising that public servants lie they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.
My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.
Consider, for instance, police officers who falsely tell a suspect that they have a search warrant, or falsely say that the government will take the suspect's child away if the suspect doesn't waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the Fourth, Fifth and Sixth Amendments.
If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government's critics. During the 1950s and 1960s, for example, the Mississippi State Sovereignty Commission spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency "harassed individuals who assisted organizations promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist."
And some lawsuits have accused government officials of misrepresenting how dangerous a person was when putting them on a no-fly list. Some judges have expressed concern about whether the government's no-fly listing procedures are rigorous enough to justify restricting a person's freedom to travel.
Can the Constitution stop the government from lying to the public? theconversation.com
When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.
But in other situations, it can be difficult to find a direct connection between the government's speech and the loss of an individual right. Think of government officials' lies about their own misconduct, or their colleagues', to avoid political and legal accountability like the many lies about the Vietnam War by President Lyndon Johnson's administration, as revealed by the Pentagon Papers.
Those sorts of lies are part of what I've called "the government's manufacture of doubt." These include the government's falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign's connections to Russia, Donald Trump claimed his predecessor that Barack Obama had wiretapped him during the campaign, even though the Department of Justice confirmed that no evidence supported that claim.
Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through outrageous and often unfounded claims that contributed to a culture of fear in the country.
When public officials speak in these ways, they undermine public trust and frustrate the public's ability to hold the government accountable for its performance. But they don't necessarily violate any particular person's constitutional rights, making lawsuits challenging at best. In other words, just because the government's lies hurt us does not always mean that they violate the Constitution.
There are other important options for protecting the public from the government's lies. Whistleblowers can help uncover the government's falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, Watergate's "Deep Throat" source for The Washington Post's investigation, and Army Sgt. Joseph Darby, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies.
Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led McCarthy's colleagues to formally condemn his conduct as "contrary to senatorial traditions and ethics."
In addition, the press can seek documents and information to check the government's claims, and the public can protest and vote against those in power who lie. Public outrage over the government's lies about the war in Vietnam, for example, contributed to Johnson's 1968 decision not to seek reelection. Similarly, the public's disapproval of government officials' lies to cover up the Watergate scandal helped lead to President President Richard Nixon's 1974 resignation.
It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Related Articles Around the Web
See the original post:
Can the Constitution stop the government from lying to the public? - The Fulcrum
- Lobbying frenzy connected to stimulus sparks backlash | TheHill - The Hill - March 26th, 2020
- Judge rules lawsuit alleging Trump threatened free press can move forward | TheHill - The Hill - March 26th, 2020
- Trumps Coronavirus Briefings Are a Ratings Hit. Should Networks Cover Them? - The New York Times - March 26th, 2020
- Relist Watch: 100 years of solitude - SCOTUSblog - March 26th, 2020
- Donald Trump Must Face First Amendment Suit for Revoking Press Badges - Hollywood Reporter - March 25th, 2020
- Robbins: Freedom of worship and the strange case of Warder Cresson - Vail Daily News - March 25th, 2020
- MuzzleWatch: Breaking down the legal attack against the BDS movement - Mondoweiss - March 25th, 2020
- Coronavirus in Arizona: Mayors, cities can't close parks, essentials without going through Governor Ducey - ABC15 Arizona - March 25th, 2020
- Misplaced outrage over who attends a White House press conference | TheHill - The Hill - March 25th, 2020
- Donald Trump Violated First Amendment by Blocking Critics on Twitter, Appeals Court Affirms - Variety - March 24th, 2020
- Sixteen Stormy Days: Tripurdaman Singh's account of the First Amendment to Indian Constitution makes for... - Firstpost - March 24th, 2020
- Keep Federal COVID-19 Package Focused on the Virus and Its Effects - Mackinac Center for Public Policy - March 24th, 2020
- WEHOville Asks John Duran to Stop Blocking It and WeHo Residents on Social Media - WEHOville - March 24th, 2020
- Letter: Government actions going too far on virus - Grand Forks Herald - March 24th, 2020
- First Amendment - Rights, U.S. Constitution & Freedoms ... - March 19th, 2020
- The First Amendment, a Philosophy Professor, and Pronouns - Daily Nous - March 19th, 2020
- Sunshine Week: It's always your right to know - The Highland County Press - March 19th, 2020
- Relist Watch in the Time of Cholera - SCOTUSblog - March 19th, 2020
- Obey the Law - Justia Verdict - March 19th, 2020
- Transparency is transforming | Columns - Weatherford Democrat - March 19th, 2020
- NIST shared dataset of tattoos thats been used to identify prisoners - Naked Security - March 19th, 2020
- PATRIOT Act Morass: Gains and Stalled Reforms - Project On Government Oversight - March 19th, 2020
- COVID-19: Press Freedom and Government Transparency - RCFP - Reporters Committee for Freedom of the Press - March 19th, 2020
- Trump Isn't the First President to Attack the Press - The Nation - March 19th, 2020
- Rat spotted in Vancouver, Washington - Nwlaborpress - March 19th, 2020
- The Cyberlaw Podcast: Will the First Amendment Kill Free Speech in America? - Lawfare - March 5th, 2020
- The University's First Amendment Rights | Leadership in Higher Education - Inside Higher Ed - March 5th, 2020
- Sen. Blumenthal to receive the First Amendment Defender Award - WTNH.com - March 5th, 2020
- Will the First Amendment Kill Free Speech in America? - Reason - March 5th, 2020
- Donald Trump And Charles Harder Continue Their Assault On The 1st Amendment, Suing The Washington Post - Techdirt - March 5th, 2020
- Do Non-Lawmakers Have A First Amendment Right To Speak Before A Legislative Body? Its A Question In Texas After A Man Testified Wearing A Profane... - March 5th, 2020
- Guest Column: On the 1st Amendment and restrictive resolutions - Oak Ridger - March 5th, 2020
- Sen. Ron Wyden, Rep. Ro Khanna introduce bill to reform Espionage Act - Reporters Committee for Freedom of the Press - March 5th, 2020
- Cuellar holds off primary challenge, and other late calls - Politico - March 5th, 2020
- San Francisco expected to pay $369,000 settlement to Bryan Carmody - Reporters Committee for Freedom of the Press - March 5th, 2020
- EARN IT Act: Instant Reaction - Morning Consult - March 5th, 2020
- Judge: Hearings for Fauquier teen charged in fatal family shootings will remain closed - Fauquier Times - March 5th, 2020
- 'Second Amendment Preservation Bill' Passes Wyoming Committee - Kgab - March 5th, 2020
- Bloomberg Slayed the Myth That Money Buys Elections - National Review - March 5th, 2020
- Negligible 'Never Bernie' - National Review - March 5th, 2020
- Stars and Stripes and the First Amendment - Columbia Journalism Review - February 15th, 2020
- New Graphic Tobacco Warnings and the First Amendment - Newswise - February 15th, 2020
- COMMENTARY: Focus on when the First Amendment protects ... and when it doesn't - Crow River Media - February 15th, 2020
- Its Illegal to Take Drone Photos of Cattle Feedlots in Texas. Press Groups Say That Violates the First Amendment. - The Texas Observer - February 15th, 2020
- FIRST FIVE: Focus on when the First Amendment protects and doesn't - hays Post - February 15th, 2020
- Amend the Hatch Act and Restore Federal Workers' First Amendment Rights - FedSmith.com - February 15th, 2020
- Our View: Be more inclusive for all holy days - The Register-Guard - February 15th, 2020
- How to save journalism - The Boston Globe - February 15th, 2020
- Pelosi, a Ripped Speech, and the Records Debate - FactCheck.org - February 15th, 2020
- ZACHARY: First Amendment advocates warn of media oversight - Tifton Gazette - January 27th, 2020
- Letters mis-stating the First Amendment and Trump flags - Villages-News - January 27th, 2020
- Witness to the PERSECUTION | Columns | Journal Gazette - Fort Wayne Journal Gazette - January 27th, 2020
- Other voices: Money, speech and truth - St. Paul Pioneer Press - January 27th, 2020
- Over the line in comedy | My View - Santa Fe New Mexican - January 27th, 2020
- Social Studies in the real world: Raceland teacher takes his class on field trip to fiscal court - The Independent - January 27th, 2020
- Reporters Face New Threats From the Governments They Cover - The New York Times - January 27th, 2020
- The First Amendment and Supreme Court | Opinion | dailyitem.com - Sunbury Daily Item - January 25th, 2020
- President Trump Restores the Original Intent of the First Amendment - CNSNews.com - January 25th, 2020
- Letter to the Editor: Supporting the We the People Amendment - Wicked Local - January 25th, 2020
- Gazette opinion: Senate restrictions are an insult to First Amendment - KPVI News 6 - January 25th, 2020
- Could Trump Muzzle John Bolton? The Limits of Executive Privilege, Explained - The New York Times - January 25th, 2020
- Throwback Thursday: The First Amendment's Freedom of Assembly in Action in Nutley NJ - TAPinto.net - January 24th, 2020
- It Violates the First Amendment to Criminalize Immigration Advocacy or Giving Advice to Illegal Immigrants - Cato Institute - January 24th, 2020
- Shattering the First Amendment - The Riverdale Press - January 24th, 2020
- The Unacknowledged Clash Between the Supreme Courts Interpretation of the Religion Clauses and the - Justia Verdict - January 24th, 2020
- Guest column: First Amendment on the docket at the Supreme Court - The Mercury - January 24th, 2020
- City of Scottsdale and The Satanic Temple take the stands in First Amendment-based case - FOX 10 News Phoenix - January 24th, 2020
- Hearing Wednesday: EFF Urges Court To Rule That Blogger's Opinion of Open Source Licensing Agreement is Protected by the First Amendment - EFF - January 24th, 2020
- Choice in education could have impact on 2020 vote - Boston Herald - January 24th, 2020
- GOP candidates outline platforms in their first 14th District debate - Northwest Herald - January 24th, 2020
- HB 2093 Introduced to Nullify Any Violation of 2nd Amendment Laws - Prescott eNews - January 24th, 2020
- Salman Rushdie, Jonathan Franzen, Amy Tan and Over 160 More Call for Babson Adjunct Professor to Be Reinstated - Boston magazine - January 24th, 2020
- AG Ferguson leads multistate lawsuit over new Trump Administration effort to allow release of 3D-printed guns - Access Washington - January 24th, 2020
- Lobby Day attracts 2A advocates from the NRV and beyond - Southwest Times - January 24th, 2020
- Op-ed: Did the University forget about the first amendment? - The Michigan Daily - January 18th, 2020
- Facebooks Soleimani Ban Flies in Face of First Amendment - Common Dreams - January 18th, 2020
- Trump Takes Steps to Protect the Right to Pray in Schools - CNSNews.com - January 18th, 2020
- Breaking down the first amendment lawsuit against Florida State Representative Spencer Roach - Fox 4 - January 18th, 2020
- 10 years later, Americans stand opposed to Citizens United | TheHill - The Hill - January 18th, 2020
- Letter: It's the First Amendment that needs sanctuary protection - Verde Independent - January 18th, 2020