Free Speech

Do Politicians Have a First Amendment Right To Lie to You?

Plus: Missouri's "Don't Say Gay" bill, exempting parents from income tax, and more...

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Pinocchio doll
(Photo by Jametlene Reskp on Unsplash )

Do politicians have a First Amendment right to lie on the campaign trail? Probably so, suggests a federal court in a new ruling.

North Carolina's ban on dishonesty in political campaigns is "facially unconstitutional," the U.S. Court of Appeals for the 4th Circuit said.

The appeals court's ruling isn't a final judgment. Rather, the court held that a lower court was wrong not to temporarily halt enforcement against the state's attorney general as his challenge to the law finished playing out. But in doing so, appeals court judges also held that the attorney general's challenge was likely right on the merits of the case and that it was difficult to imagine him losing.

The case stems from the attempted prosecution of Josh Stein, North Carolina's Democratic attorney general (and, now, a candidate for governor). Stein was up for reelection in 2020 and ran against Republican Forsyth County District Attorney Jim O'Neill. One of Stein's campaign ads said "O'Neill left 1,500 rape kits on a shelf."

O'Neill alleged this criticism was inaccurate because police—not prosecutors—are in charge of processing rape kits.

He filed a complaint with North Carolina's Board of Elections, accusing Stein of violating a 1931 North Carolina law that criminalizes "derogatory" campaign ads that candidates know "to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election."

The board didn't recommend criminal charges be brought. Nonetheless, Wake County District Attorney Lorrin Freeman planned to propose charges before a state grand jury last summer.

Going on the offensive, Stein sued to stop the prosecution. A district court declined to issue a preliminary injunction against the law.

Now, the 4th Circuit Court of Appeals has handed Stein a preliminary victory, overturning the district court's denial of the injunction and declaring the law he was to be charged under "likely unconstitutional for two reasons."

"First, the Act appears to criminalize at least some truthful statements—a result the First Amendment forbids," wrote Judge Toby J. Heytens, pointing out that the court could not find "any source suggesting 'derogatory' refers exclusively to factually false statements." Because of this, the law could have "chilling effects on truthful speech during political campaigns."

"Second, even if the Act reaches only false statements, it makes impermissible content-based distinctions in selecting which speech to forbid," Heytens wrote.

The law doesn't, for instance, ban "inflating a candidate's credentials or promoting self-aggrandizing falsehoods, nor does it touch knowing falsehoods that undermine the perception of electoral integrity without referencing a particular candidate." And "under this statute, speakers may lie with impunity about businesspeople, celebrities, purely private citizens, or even government officials so long as the victim is not currently a 'candidate in any primary or election.' That is textbook content discrimination," which the First Amendment forbids.

The appeals court vacated the district court's order denying a preliminary injunction and sent the case back to the district court "for further proceedings consistent with this opinion."

FREE MINDS

Missouri's version of Florida's "Don't Say Gay" bill says only licensed mental health professionals can talk to students about sexual orientation or gender identity. The proposal, which got a hearing in front of the Missouri Senate Education and Workforce Development Committee earlier this week, "would ban teachers from discussing gender identity or sexual orientation at any grade level, no matter the class subject," reports The Kansas City Star:

It would limit any public or charter school staff member from discussing gender identity or sexual orientation unless they are a mental health care provider and have permission from a parent.

It would go further than Florida's "Don't Say Gay" law that passed last year. In Florida, the law prohibits instruction on gender identity and sexual orientation in kindergarten through third grade, but Missouri's does not specify a grade level.

Critics of the bill say it would prohibit LGBTQ teachers from discussing their spouses because it could indicate their sexual orientation. They say it could also ban books from being taught if they include LGBTQ characters or topics, and forbid discussion of gender identity and sexual orientation in health classes.

Missouri state Sen. Mike Moon, the Ash Grove Republican behind the bill, said the intention of the bill is to allow mental health professionals to counsel students instead of staff members who may not be trained properly.

Moon is calling it the "Vulnerable Child Compassion and Protection Act." You can find the full text of the bill (S.B. 134) here. A legislative summary says it would prohibit "any school nurse, counselor, teacher, principal, or other personnel at a public or charter school from discussing gender identity or sexual orientation with a student unless such person is a licensed mental health provider with prior parental permission."

FREE MARKETS

Would you have more kids if it meant never paying taxes again? The New York Times' Jessica Grose looks at Hungary's plan to exempt some mothers from income tax:

In December, the political director for Prime Minister Viktor Orbán tweeted, "women who become mothers before turning 30 will be exempt from paying personal income tax!" That's on top of a raft of other initiatives meant to boost the number of Hungarian babies, including allowing mothers of four or more children to be permanently exempt from paying taxes, a mortgage repayment plan for families with two or more children, a subsidy program for larger families buying seven-passenger cars and allowing grandparents to be eligible for payment for caring for their grandchildren.

As the Hungarian diplomat Andras Doncsev explained in a November talk at Texas A&M University's Bush School of Government and Public Service as part of a conference on what it called "the global birth strike," the Hungarian government is spending over 5 percent of its gross domestic product on family support; it is spending three times the amount on family as it is on its military, he said.

Will it work? The history of pro-natalist policies like these in other countries doesn't bode well for that happening. Jennifer D. Sciubba, author of 8 Billion and Counting: How Sex, Death, and Migration Shape Our World, points out that Hungary's fertility rate has risen from 1.2 to 1.5, but this is still nowhere near replacement level fertility (which is 2.1). Hungary only "managed to raise its super low fertility to just regular ole low fertility."

More from Grose:

When Sciubba and I spoke, she said it almost seems that when a country falls below replacement level, no matter how many family-friendly policies are enacted, it can't get back up again. "I think we need to learn a lot more about that, but that's fascinating," she said. The reason is probably a complicated mix of social and cultural forces that are unique to individual countries. But at its core, it seems to me that no amount of additional financial support would make a person want to be a parent without an intrinsic desire for children that goes beyond any realistic level of compensation. Some people just don't want to be parents when they're allowed to make that choice, and that isn't something that should be or can be changed.

QUICK HITS

• A bipartisan group of senators has reintroduced legislation to repeal the 1991 and 2002 Authorizations for Use of Military Force (AUMFs) that gave a green light to the Gulf War and the Iraq war. "Congress has failed to repeal these AUMFs to prevent potential misuse by future presidents," notes an email statement from Sen. Rand Paul's office. You can find the full bill here.

• Josh Barro looks at "Biden's effective and Clintonesque sowing of fear, uncertainty and doubt about Republicans' stewardship of popular benefit programs."

• Texas is challenging a Biden administration rule requiring pharmacies to dispense abortion drugs to anyone with a valid prescription.

• At least nine states are trying to restrict or criminalize drag shows.

• A former employee of the St. Louis Children's Hospital's Transgender Center writes about the shaky standards for treatment she witnessed there.

• The Biden administration's new Title IX rule becomes public in May, "though it's unclear when it would take effect," notes USA Today. Biden's changes would add gender identity discrimination to the law's purview, expand the definition of sexual harassment (requiring schools to investigate anything that meets this lower bar), and require schools to use the "preponderance of evidence" standard instead of the more stringent "clear and convincing evidence" standard in sexual assault cases.

• An anonymous State Department official says that the Chinese balloon the Pentagon shot down last weekend had "multiple antennas" to collect intelligence and that these were "inconsistent" with weather balloons. Since the balloon was shot down, a number of officials have made anonymous statements about it being a spy balloon. But no official statement on the balloon has been released since it was shot down.

• San Francisco Supervisor Hillary Ronen is urging state legislators to decriminalize prostitution.

• The idea that Americans have only been gaining weight since the 1980s is wrong, suggests Matthew Yglesias.

• A few things that most people get wrong about the brain.