Does the US Constitution's free-speech clause also protect bald-faced public lying by politicians and news media? What would be the point?
If doctors practiced their craft like Fox News pundits do theirs, they would long ago have lost their privilege to treat patients.
Which brings me right to the point: Why shouldn’t licensing of journalists be required, as other professionals, such as doctors, already are in many states? And why shouldn’t politicians, as well, be legally required to adhere to basic standards of competency, honesty, and ethics? More on the latter later.
The US Department of Labor’s CareerOneStop website stresses that licensing for certain professions is necessary “to ensure that only competent and ethical individuals practice in an occupation.”
Why should free speech of journalists and politicians be infringed by regulations that only seek to require that their speech be reasonably accurate, honest and ethical?
Many professionals face licensing, ethical oversight
In many if not most states, formal licensing authorized by government-sanctioned oversight organizations is mandatory, for example, for teachers, land surveyors, doctors, lawyers, cosmetologists, nurses, building contractors, counselors, therapists, electricians, and practitioners in other professions.
And there are significant consequences for infractions of applicable licensing rules for each profession.
Also, if a licensed professional were charged with an actual crime, the accused may have to “defend their actions twice”: in a criminal courtroom as well as before relevant state licensing boards, according to Chapman Law Group, a Michigan legal office specializing in defending health-care cases, including licensure infractions.
In health-care professions, in particular, if a licensed employee is convicted of a crime or disciplined on a licensure charge, a wave of punishing consequences can follow, according to The Health Law Firm, which defends in licensure cases. These include:
- a mandatory report to the National Practitioner Data Base (NPDB), which remains active for 50 years;
- a mandatory report to the US Department of Health that is included in a 10-year profile on the DOH’s website; states and other jurisdictions relevant to a defendant’s license may also initiate investigations and/or disciplinary proceedings;
- The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) may move to ban the provider from the Medicare Program (exclusion for many offenses are mandated) or place the licensee on a List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
Why should journalists not be licensed?
So, the question is, why should journalists not be liable to similar oversight of how they comply with the ethics and legalities of their trade, such as rational, reasonable standards for competency, fairness and accuracy, as, say, doctors are answerable to standards of competency, ethics and safety?
Both professions have an enormous impact of the nation’s health and public security.
One difference, which some naysayers see as deal-breaker for oversight, is press freedom guaranteed by the US Constitution’s First Amendment. This is the right of news media—or any individual American—to be free of government interference in the communicative act.
The First Amendment succinctly states that “Congress shall make no law … abridging the freedom of speech, or of the press.”
Whereas professional-code infractions or criminal lawbreaking by lawyers and medical professionals can lead to loss of licensing and limitations on or cancellation of the ability to work in their field, incompetent, unethical, or scofflaw journalists only have to worry about getting fired by their employers.
What happens when a self-styled “journalist” or non-journalist is employed by a media outlet like cable-TV behemoth Fox News, which recent public disclosures in a lawsuit revealed not only encouraged its prime-time pundits to lie to viewers about Donald Trump’ 2022 loss and subsequent bogus electoral fraud complaints, but demanded it.
Fox’s invented drumbeat of governmental subterfuge in that presidential election solidly won by Joe Biden began months before the vote and continued more than a year after.
Fox News lied to keep its ratings, profits high
Many neutral political analysts believe Fox’s shameless, bogus pandering to its lucrative audience, by feeding them not actual news facts but only the false narratives viewers enjoyed—how Fox keeps ratings and profits high—actually helped incite rioters at the deadly January 6, 2022, “stolen election” insurrection at the US Capitol in Washington, D.C.
In other words, there is no one to hold lying Fox pundits accountable to journalistic ethics and professional codes except their bosses—who clearly have zero interest in that.
Even Rupert Murdoch, the Australian chairman of News Corp., Fox’s parent company, in a recent deposition under oath acknowledged that he knew the 2020 vote was not fraudulently determined but did nothing to stop Fox’s prime-time stars from lying about it nightly for months, according to court documents.
Using the First Amendment as a shield for deception
News Corp. is desperately gripping the First Amendment as a shield against charges that it spread lies via its Fox News subsidiary defaming Dominion Voting Systems by falsely alleging that the company’s voting machines switched votes and other transgressions. News Corp.’s counsel argued recently in a public statement:
Dominion brought this lawsuit to punish FNN for reporting on one of the biggest stories of the day—allegations by the sitting President of the United States and his surrogates that the 2020 election was affected by fraud. The very fact of those allegations was newsworthy.
Fox attorneys argue that when voting-technology companies denied the allegations being made by Trump and his surrogates, Fox News aired those denials, while some Fox News hosts offered protected opinion commentary about Trump’s allegations.
Fox’s counterclaim is based on New York’s “anti-SLAAP” law. Such laws are aimed at protecting people trying to exercise their First Amendment rights from being intimidated by “strategic lawsuits against public participation. …
According to Dominion, FNN had a duty not to truthfully report the President’s allegations but to suppress them or denounce them as false. Dominion is fundamentally mistaken. Freedom of speech and freedom of the press would be illusory if the prevailing side in a public controversy could sue the press for giving a forum to the losing side.
Richard Nixon once said, “If the president does it, it’s legal.” Likewise, Trump apologists are claiming that if the president says it—not matter how false or dangerous—it’s OK (and, by extension, because it’s ostensibly news, it’s also OK to publish it, even if it’s bogus).
READ: The U.S. Has Never 100% Upheld the First Amendment (And Still Doesn’t)
However, US libel law prohibits news organizations from broadcasting or publishing information they know to be false and not reporting that fact—which is exactly what Fox News has done for months in the right-wing-fueled “Stop the Steal” movement regarding the supposedly “stolen” but demonstrably fair 2020 election.
Whether a jury will see the lie in court is another question entirely.
Difficulty extreme to convict media, public figures of libel
It is extremely difficult in the US to hold public figures and their allies accountable for flim-flam, as evidenced recently when Trump attorney Jenna Ellis, who helped spearhead the defeated ex-president’s fraudulent election gambit, admitted in court to serial public “misrepresentations” during that initiative. Lying, in other words.
In his opinion against Ellis, Colorado’s presiding disciplinary Judge Byron Large wrote:
The parties agree that Respondent, through her conduct, undermined the American public’s confidence in the presidential election, violating her duty of candor to the public.
Yet, Ellis’ punishment was surprisingly mild: a formal censure from the court and a related $224 fine—but she was not disbarred and can still practice law in Colorado.
Such “duty of candor” should not just be a professional requirement for public figures and their representatives, but a legal mandate with tough penalties for deterrence.
At present, it’s not.
Onetime Trump personal attorney and former New York City Mayor Ruddy Giuliani had his District of Columbia law license suspended in 2022 (it’s being appealed). Late that year, the District’s Bar Association recommended that Giuliani be disbarred. In attempting to overturn results of the 2020 presidential election, the association concluded that Giuliani “weaponized his law license to bring a frivolous action in an attempt to undermine the Constitution.”
With more than 60 such “frivolous” court actions filed—and roundly rejected by courts—there’s presumably a lot more legal exposure out there for Trump minions.
In the meantime, Trump and his allies, and Fox News faux news opinionators, continue to spread lies with virtual impunity.
Laws, enforcement against public dishonesty weak
Inadequate laws and a weak enforcement are largely impotent in the face of an avalanche of mendacity targeted at dismantling our democracy and transforming it into a quasi-fascist state.
It’s unworkable to require that a crime must be committed (e.g. the Capitol insurrection) before purposeful lying by powerful pols and entertainers masquerading as journalists are held to account, as in the Fox case, or even real journalists lying for whatever reason.
To paraphrase Shakespeare, “the lying is the thing,” not the crime it may or may not be complicit in. Lying should be a punishable infraction in and of itself. Freedom of speech should not—and, in fact, under libel laws does not—protect reckless mendacity from penalty.
But there is a very high bar for successful prosecution, as evidenced by the failure so far of the system to hold Donald Trump accountable for his serial public lying that has incited violence and spread widespread ignorance.
Why give a pass to politicians, media for dangeruos dishonesty?
Why should journalistic or political mendacity and malpractice that threatens public safety and national security be viewed and handled differently than, say, wrongdoing among doctors, nurses, accountants, lawyers, engineers and other professionals?
Because the Constitution guarantees free speech cannot mean that it also protects lies, malfeasance and subterfuge at the expense of all Americans. Free speech is not absolute, as courts have long held. There are and should be limits.
The website USLegal offers, in an explanatory statement about revoking medical licenses, a compelling structure for “free-speech” limits and their enforcement, writing:
The state has the power to revoke a license to practice medicine granted to a physician for good cause. The state power to revoke the license of a medical practitioner stems from the general police power to prescribe all reasonable regulations that necessarily affect the public health, safety, and morals. … Revocation is … justified in instances where the license holder has been guilty of improper or unlawful conduct.
Courts have held that the purpose of an action seeking revocation of a doctor’s certificate is not to punish the doctor, but rather to protect the public. … The general defenses against a revocation of license include denial of due process, violation of equal protection clause, compelling self-incrimination, etc.
However, courts have held in a number of cases that the “state had a legitimate interest in protecting its citizens from incompetent physicians, and requiring doctors suspected of being incompetent to attend an investigatory hearing or submit to reexamination was rationally related to that interest, so neither a statute nor a board’s treatment of a physician violated the equal protection clause.
Would holding prominent liars accountable harm free speech?
Likewise, revoking a journalist’s (or media organization’s) professional credentials or a politician’s ability to campaign and run for office would in appropriate circumstances be justifiable, not to punish wrongdoers but to protect “the public health, safety, and morals” of Americans. If the January 6 Capitol attack had been avoided by government cracking down on the tidal wave of political lying in the US leading to the 2020 election, would the crackdown have been justified?
It would not have affected good-faith free speech in the least, only false speech, which—like crying “Fire!” in a fire-free theater—is not and shouldn’t be protected under American law.
Naysayers may complain, “So, who decides what’s true and what’s false?”
Throughout the run-up to the 2020 vote, as Trump and his supplicants and base supporters warned that if he lost, the election was rigged, and then claiming election fraud after he was defeated fair and square, the facts unerringly proved that there had been no shenanigans other than Trump’s. Indeed, the then-president’s own election czar, a Republican, and others emphasized it had been among the most “secure” elections in American history.
Is America unable to ensure honesty in politics, media?
Is it too much for America to require that its news media and politicians be at least demonstrably honest in their public comments and communications—and those of their underlings? Was the Constitution written to protect free speech as well as the dangerous, fraudulent kind?
Prohibiting recklessly bogus speech would not threaten the First Amendment’s free-speech ideal.
All the Founders hoped to achieve with the free-speech clause was to keep government from interfering in the free flow of ideas in society—to allow all Americans to publicly speak freely. But not, I’m certain, to lie freely and endanger others.
Who among us truly believes the Founders envisioned the First Amendment being a shield for this kind of existentially hazardous political and ideological subterfuge?
They wanted to encourage and protect the unhindered spread of honorable ideas, not disinformation.
The Constitution, Bible are temporal, not divine
The Constitution, like the Bible, is man-made, not sacred. And it should be allowed to be adjusted over time to the realities of evolving American society.
This includes the new reality of social media, which, as they say, can spread a lie around the world before the truth can even get its pants on. Meanwhile, human beings remain as gullible as ever. In Ben Franklin’s day, life and information moved at oxcart speed; today it’s like a rocket.
What is not helping us stop the lies is dated, oxcart-speed interpretation of the First Amendment, now centuries old, that is increasingly irrelevant and perilous to the republic. Remember January 6: an event incited by lies and the president who expansively promoted them.
Let’s consider making gratuitous lying by media and public officials a crime and exact punishing penalties.
And let’s legally license journalists and hold them accountable to reasonable ethical and professional national standards, of which honesty, accuracy and balanced fairness are at the top of the list.
After all, it’s not just coincidence that lying is one of the paramount prohibitions of the biblical Ten Commandments in a land first colonized by devout Christians.
Honestly, what could be a more primary American value than honesty?
We can’t solve this public dishonesty problem by hiding behind a hoary founding document whose specifics have grown increasingly obsolete. If we, perhaps understandably, fear government involvement in overseeing media and politicians, let’s delegate oversight and enforcement authority—as with medical licensing—to professional boards in conjunction with the judiciary, and guided by relevant legislative statutes.
What we’re doing now clearly isn’t working, as we watch our democracy being steadily undermined and sneakily dismantled.