Balkinization: What To Do About Government Lies?

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

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