Of all the many compelling arguments in favor of the freedom of speech, the most important perhaps is that governments cannot — and should not — be in the business of attempting to define truth. A decent respect for both History and the inevitable pitfalls of human nature teach us well that there is no such thing as neutral power or benign force. Even if men were capable of wholly objective and dispassionate judgment, they would, it seems, remain incapable of elevating their verdicts above their preferences and their interests. Cincinnatus is largely a myth: The smartest and best among us have ambition, too, I’m afraid.
Even if man were perfectable, it would also remain true that there exists no reasonable or reliable manner in which a determination of “truth” might be set in aspic. Free-speech absolutists such as myself are often asked why it “should be legal” for Americans to deny the Holocaust when we “know” that it happened. In large part, the answer to this is that punishing speakers for dissenting from a proposition necessarily involves establishing such a proposition: something that governments are not equipped to do. There are, after all, many shades of Holocaust revisionism: one man might say “the whole thing is a hoax,” another might say that he believes that the number of dead was closer to five million than to six million, and yet another might question a feature of the historiography or the motivations of a particular author who is currently in favor with the majority. Who will decide which man goes to jail? Hopefully, nobody in particular. Truth may well be an objective and absolute thing, but scientific, historical, and political arguments as to its nature thrive most organically in the open public square. They do not prosper when subjected to the whims of the Ministry of Truth.
A case before the Supreme Court today, Susan B. Anthony List v Driehaus, goes to the very heart of this issue, addressing the question of whether the First Amendment prohibits the prosecution of those who “lie” during political campaigns. As is its wont, the press has had a field day in its coverage, suggesting almost uniformly that the court is deciding whether dishonesty is protected by the Constitution. As is traditional in coverage of Supreme Court cases, this characterization rather spectacularly misses the mark. As Michael Carvin and Yaakov Roth write today in the Journal, what is really at stake is neither whether one should lie nor whether one has “the right to lie,” but
who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.
People often disagree about what is the “truth,” particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as “half-true”—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting “false” statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries. . . .
Astute observers of the current legal landscape will note the parallel here with National Review’s own defense case against Michael Mann, an intolerant and prickly climate-scientist who is currently engaged in an attempt to weaponize the libel laws against those who would dissent from his position and criticize his style. As in Susan B. Anthony List, the material question here is not whether Mann is correct, but whether our courts and our legislatures are the appropriate venues in which such questions might be resolved. They are not. Here, as elsewhere, our nine lawyers-in-black should side with the defenders of liberty — and emphatically so. The integrity of the republic depends upon it.