George Will has a provocative non-partisan column in circulation this week in which he discusses two laws currently facing judicial. In California, water district board member Xavier Alvarez is challenging a federal "Stolen Valor" law that criminalizes his false claim, made while campaigning, that he had served 25 years in the Marine Corps and had won the Congressional Medal of Honor. In Ohio, the Susan B. Anthony List political action committee is challenging a state law that allows a former congressman to sue them for claiming that he'd voted for taxpayer-funded abortions. Will notes that Alvarez's claims were "rubbish," while the Ohio case hinges on a disputed interpretation of the "Obamacare" legislation. He also points out that Supreme Court precedent extends First Amendment protection to many kinds of untruthful speech. Will quotes (but doesn't cite) the 1964 New York Times Co. v. Sullivan case, in which the Warren Court, overruling a libel conviction against the newspaper, established "malice" as the determinant of libel or defamation. In the majority opinion, as quoted by Will, the Court stated that "constitutional protection does not turn upon the truth, popularity or social utility of the ideas and beliefs which are offered." In a section unquoted by Will, but consistent with his reading, the Court affirms that "erroneous statement is inevitable in free debate."
Will believes that Alvarez shouldn't be culpable for his lies because they were, self-evidently, not defamatory. But he leaves an opening for the Court to uphold the law, whether he meant to or not, by including among the "four traditional categories of unprotected speech" the category of fraud. Unless Will defines fraud differently from the rest of us, he would seem to agree that Alvarez's statement is fraudulent. But the context of the legal category of "fraud" may not extend to a person making false claims about his past.
In Ohio, Will seems satisfied that the case against the Anthony List is a matter of "he said, they said," incapable of objective resolution. He assumes the List's right to dispute whether the President's executive order "purportedly limiting the funding of abortions" is no more than the "symbolic gesture" it was dubbed by Planned Parenthood. The courts' concern should not be whether the List's charge is true, but whether it is "sincere." Will himself (in this column, at least) draws no conclusions about the order, nor does he seem to think that he needs to. Whether anyone can definitively say that the order excludes abortion from funding under "Obamacare" is irrelevant. Skeptics are free under the First Amendment always to question whether the order is effective or sincere, according to Will's reasoning. They are, by implication, always free to question the sincerity of any political speech or act, or to infer from such acts any conspiratorial agenda they sincerely perceive. It would make no difference to Will, if not to Ohio, if the List's charge could be proved as fraudulent as Alvarez's claims about himself.
All of this is disturbing, and the most disturbing part is the way Will's opinions seem to follow from his understanding of democracy. "For weeks before the election," he writes, "voters heard [the congressman's] dispute with the Susan B. Anthony List, then voted against him. Isn't that how political arguments should be settled?" George Will isn't usually the most vocal champion of democracy -- he's on record having written that the nation would be better off if fewer people voted -- but here he endorses an extreme form of democracy that should be abhorrent to a conservative. He says, in effect, that the people have an inalienable right to resolve a dispute without regard for the truth. Even more disturbing is the kernel of truth in that opinion. Democracy in its purest form presumes an utter indifference to results; it makes no difference what the people choose, only that they choose for themselves. But if democracy, like any political form, is a means to the end of human survival, is democratic indifference really acceptable? I grant that certain questions of "values" will never have a definitive, objectively truthful answer, but I reject the postmodernist insinuation that no meaningful question has an objective answer based on something more than someone's will to power. Society has to be committed to truth, and democracy should be capable of dedication to truth without compromising anybody's civic freedom. Lying about your past should disqualify you from political office. Disputes over the meaning of law should be capable of objective and definitive resolution. "Who gets to judge political truth?" asks the headline over Will's column in a local paper. If the question is sincerely asked, the answer may be everybody, or somebody, but the heart of the answer is that the judgment has to be made.