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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What To Do About Government Lies?
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Monday, March 16, 2020
What To Do About Government Lies?
Guest Blogger For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019). Nathan Cortez
On February
26th, President Trump stood before reporters for only the second official White
House press briefing of his term, and the first in which he actually took
questions. The rare briefing was occasioned by COVID-19, the novel coronavirus
spreading through the country. President Trump was there to address the federal
government’s response.
What followed was a predictable stream of
nonsense.
He claimed that new cases in the U.S. are “going very substantially down, not
up.” He promised that U.S. researchers are “rapidly developing a vaccine” and
that we “will essentially have a flu shot for this in a fairly quick manner.”
And he gave the impression that the fatality rate for the “regular flu” is “much
higher” than for the new coronavirus.
Each
statement was demonstrably wrong, which
quickly became apparent as scientists from the CDC and NIH contradicted Trump.
Shortly thereafter, the administration announced that all public statements and
media appearances by government health officials would have to be cleared through Vice
President Pence. Can we trust the Trump administration to give us accurate and
timely information on COVID-19? Can we trust it not to lie or misrepresent crucial
facts?
No one has
written more extensively or thoughtfully about the government’s own speech than
Helen Norton. Her book, The Government’s Speech and the Constitution, is the
culmination of nearly two decades of work focused largely on “the use and abuse
of the government’s expressive powers.” Her work is particularly important
right now, as those powers are wielded by the Trump administration with unusual
haste, hostility, and disregard for truth. Here I’ll focus on Norton’s
discussion of “government lies” and what, if anything, we can do about them.
The book
begins with Norton emphasizing, in her characteristically clear way, that the government
is an “unusually powerful speaker” whose speech “has unusual capacity for both
value and harm precisely because of its governmental source.” Government
speech, she tells us, has unique power to inform, challenge, teach, and
inspire. But it also has unique power to threaten, deceive, distract, and vilify.
President Trump’s press briefing on COVID-19 showed both extremes. The public
has an obvious acute interest in receiving timely and accurate information
about the outbreak. What we received instead were false and misleading
statements minimizing the outbreak for self-serving purposes. Although
minimizing unnecessary fear is a valid public health goal, any reassurances
should be evidence-based. Earlier the
same day, ironically, Trump used Twitter to blame Democrats
and the media for stoking market fears for their own advantage.
Are there
constitutional or other remedies for government lies? Norton is perhaps unique
among scholars in giving sustained attention to the nature of government lies
and potential responses. Her book ties together threads from notable recent
articles such as The Government’s Lies and the Constitution, 91 Ind.
L.J. 73 (2015); Government Lies and the Press Clause, 89 Colo. L.
Rev. 453 (2018); and The Government’s Manufacture of Doubt, 16 First
Am. L. Rev. 342 (2018).
Although the
entire book deserves attention, I’ll focus on two chapters that address why
government lies are both inherently problematic and inherently difficult to
remedy. Chapter 4 (The Government’s
Speech and Due Process) focuses on the range of harms caused by “government
lies,” which she defines as deliberate or reckless false assertions of fact
made with the intention that the listener believe them to be true. Such lies
can deprive citizens of constitutionally-protected liberty or property rights,
inflict reputational harms, and inflict more expressive, dignitary harms. Chapter
7 (Responding to the Government’s
Destructive Speech) focuses on what can be done in response to the
government’s destructive expressive choices, looking first at potential
constitutional remedies (limited), then at nonconstitutional remedies, such as statutory
interventions, political remedies, and counterspeech (also limited, but perhaps
less so).
As an
administrative law scholar, I naturally turn to procedure as a constraint on
government discretion (perhaps with too much
faith,
as Nick Bagley argues). Elsewhere, I’ve argued that when administrative
agencies abuse their control over information¾what I call “information
mischief”¾the most
effective constraints might be procedural, particularly internal agency
policies and norms.
But can
process itself solve the problem of government lies? Can process deter or
constrain a President who lies so shamelessly? In this year’s State of the
Union, President Trump claimed “We will always protect patients with
preexisting conditions” when in fact his administration has done precisely the
opposite.
State of the Union speeches are vetted exhaustively, but obviously no one
filtered out the lie. Moreover, what process
could constrain Trump from lying on Twitter? Indeed, his staff has tried to keep him off
Twitter,
or at least blunt his worst impulses there, to no avail.
We can’t
muzzle the President, nor should we want to. Norton posits that government
speech is “valuable” not necessarily because it is “good, wise, or accurate,”
but because it furthers a specific constitutional value, such as democratic self-governance
and accountability (engaging seminal work by Meiklejohn). More
specifically, she notes that “the government’s expressive choices are valuable
… because of what they offer the public: information that furthers democratic
self-governance by enabling the public to identify and thus evaluate the
government’s priorities and performance.”
And this
broad conception of “value” necessarily includes government speech that is
false, inaccurate, or purposefully misleading. When the Trump administration
boasts repeatedly that it is protecting patients with preexisting medical
conditions while actually trying to repeal such protections, many see the lie.
When Trump claims during a press conference that the government’s response to
COVID-19 is going swimmingly, many of us know to take his statements with a boulder-sized
grain of salt.
But what
about those who believe him? Those who take his speech at face value? Is the
speech valuable then? Does it really further democratic self-governance, or
does it hinder it? Do government lies necessarily allow the public to identify
and evaluate government performance, or do they more frequently obscure such
evaluation? Is all government speech necessarily “democracy-enhancing”? As
Norton herself notes in a previous article, Manufacturing
Doubt, government lies are particularly problematic because they can create
an epistemological problem, sowing confusion and discord.
For example, Norton
discusses how Trump has lied repeatedly about winning the popular vote in 2016,
when Hillary Clinton received nearly three million more votes (65.8 million to
62.9 million). And fittingly, Norton cites Hannah Arendt’s work, Crises of the Republic, which
deconstructed the lies of the Johnson and Nixon administrations regarding
Vietnam, as exposed by the Pentagon Papers. The credibility
gap
that Arendt wrote about then has returned with the COVID-19 virus. In
fact, calling it a “gap” today seems generous. A more appropriate word, to
borrow from Jack Balkin and Sandy Levinson, might be executive “rot” given repeated
speech from the administration that undermines public trust.
Yet, as
Norton observes, sometimes the truth or falsity of government speech determines
whether such speech violates constitutional rights. For example, in Planned Parenthood v. Casey, 505 U.S. 833
(1992), the Supreme Court upheld a Pennsylvania law requiring doctors to
provide “truthful, non-misleading information” about abortion procedures and
alternatives like adoption. The Court found that the law didn’t impose an undue
burden on women because it was designed to “ensure an informed choice.” The
Court took at face value Pennsylvania’s claim that the law was designed to
enable informed consent. Of course, informed consent requires accurate
information; otherwise it isn’t truly informed.
When state governments make false or
misleading statements about abortion, like the Arizona law forcing
abortion providers to say falsely that nonsurgical abortion is reversible once
the procedure has begun, it crosses a constitutional line.
Still, Norton
acknowledges that constitutional remedies for government speech are available
only rarely. Although government lies “threaten distinct and especially serious
damage,” this doesn’t make them unconstitutional. Standing is a particular
barrier given the lack of concrete, specific harms to individuals. The
remedies, as she details in Chapter 7, are more statutory and political, such
as “aggressive congressional oversight, … enhanced statutory protections for
whistle-blowers who expose government falsehoods, and pushback from the press
and the people themselves, even impeachment.” Searching for “nonconstitutional
responses” is worthwhile, Norton argues, given how much the government’s
expressive powers have grown and how “disturbing” their abuses can be.
But
nonconstitutional responses are also lacking. The Federal Tort Claims Act doesn’t
allow suits against the government for defamation. The Federal False Statements
Act prohibits lying to government officials, including lies by other government speakers, but only
if the lies are “predictably capable of affecting” government decision-making. Certain
government speakers, such as judges, licensed attorneys, and prosecutors are
often required by statute to be truthful, or at least observe heightened duties
of candor than the general public. And inspectors general and ombudspersons
might draw attention to government lies, as in the case of the VA Office of
Inspector General documenting how the VA misrepresented the frequency of
patient deaths, clinic waiting times, and other metrics of patient care at the
Phoenix VA Health System. But none of these nonconstitutional mechanisms deter
lying by the Trump administration.
Thus, Norton
calls on government counterspeech that draws attention to government lies. Or,
failing that, she calls for government speakers to exercise their “own
self-restraint,” noting that “[t]he more powerful the government actors
involved, the more they should choose their words carefully.” Of course, our
current President lacks any semblance of self-restraint and is shockingly
careless with his words. What is left?
In a previous
article, Government Lies and the Press
Clause, Norton closes with a powerful passage from a 1973 book examining
the lies of the Johnson and Nixon administrations. The passage rings all too
true today:
[T]he politics of lying had changed the politics of America. In place of trust, there was widespread mistrust; in place of confidence, there was disbelief and doubt in the system and its leaders. The consent of the governed is basic to American democracy. If the governed are misled, if they are not told the truth, or if through official secrecy and deception, they lack information on which to base intelligent decisions, the system may go on¾but not as a democracy. After nearly two hundred years, this may be the price America pays for the politics of lying.
David Wise, The Politics of Lying: Government Deception, Secrecy,
and Power
18 (1973). Norton follows by observing that “[a] government that respects and
serves its people does not lie to them.” The only reliable responses, it seems,
are political and practical rather than legal or administrative: fighting
misinformation with information; fighting lies with truth. Norton’s book is an indispensable
contribution to better understanding the modern fight.
Nathan Cortez is Callejo Endowed Professor and Gerald J. Ford Research Fellow at SMU Law School. You can reach him by e-mail at ncortez at smu.edu
Posted 9:30 AM by Guest Blogger [link]
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