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Saturday, February 8, 2014

Does the BIG LIE Threaten Democracy Itself?

There is something about Gov. Chris Christie’s problems that fascinates me.  Perhaps it’s better said that everything about his case is fascinating.  But, one thing stands out to me: if he is lying (and that is yet-to-be-determined), and he knew about the bridge closure being for some sort of political revenge, why are some people, including members of his own party, calling for his resignation? Let me put it in other words:

    --is lying considered “bad” when it involves a sitting official, but not when used as a political strategy to win office?
    --is impeachment or resignation considered appropriate for a lie told about conduct or motivation by a public official, but a candidate is free to lie whenever he/she deems it appropriate?

I raise these questions simply because attitudes toward lying by politicians seem not only contradictory, but downright incongruous.  After all, is it not the leaders of the Republican Party that have gathered together in fancy restaurants as well as in less fancy back rooms to work out strategies for using the Big Lie technique to prevent President Obama from winning a second term, and then to tarnish his reputation and legacy as President after he won re-election?  Those meetings have been well-publicized, and do not need added proof here.  But, in case you missed it, there is now a concerted effort by certain office-holding Republicans to make sure that the President, by the time he leaves office, is known as a liar, a tyrant, a socialist dictator, a man involved in numerous scandals (Ben Ghazi, IRS, NSA), a man not to be trusted, a failure as President or worse, an illegitimate President, who deserves to be impeached because he is "lawless!"  You are going to be hearing these contemptuous lies for the next two years (and most likely beyond that if favorability ratings begin to rise after the President leaves office!).  If a sitting official like Governor Christie is apt to be held impeachable or at least censured for his behavior, are these officials immune to such penalties?

Let us pause for a moment to recall the “Big Lie” technique. Wikipedia puts it in a nutshell for us: 
The Big Lie is a propaganda technique. The expression was coined by Adolf Hitler, when he dictated his 1925 book Mein Kampf, about the use of a lie so "colossal" that no one would believe that someone ‘could have the impudence to distort the truth so infamously.’ Hitler asserted the technique was used by Jews to unfairly blame Germany's loss in World War I on German Army officer Erich Ludendorff.” 

Let us listen to Hitler’s own words, as he expounds on why the technique is so successful.
“All this was inspired by the principle--which is quite true within itself--that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying.”  —Adolf Hitler, Mein Kampf, vol. I, ch. X

It is chilling to read his words, given the situation we now find in our political arena.  This propaganda technique is alive and well, and has infected our governmental and economic systems to such an extent that we are practically immune to its consequences.  The major consequence of the repeated use of this propaganda technique is that truth backed up by factual evidence is very difficult to discern or to find.  Have we succumbed to a Facebook- twitter- Instagram- instant comment syndrome that ignores facts, but promotes fantasy and fiction?  Have we abandoned the scientific method as a basis for discerning what is factual and what is simply hypothetical or theoretical? Have we so long accepted the propaganda of product advertising that we cannot discern what is evidence-based from what is simply emotionally or psychologically appealing?  The answers to all these questions are perhaps debatable, but we know in our hearts that the influence of this propaganda technique cannot be ignored. Look at some of the evidence from Wikipedia regarding popular culture:

George Orwell's novel Nineteen Eighty-Four refers to the Big Lie theory on several occasions. For example:
‘The key-word here is ‘blackwhite.’ Like so many Newspeak words, this word has two mutually contradictory meanings. Applied to an opponent, it means the habit of impudently claiming that black is white, in contradiction of the plain facts.’
Definition of ‘doublethink’: ‘To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then when it becomes necessary again, to draw it back from oblivion for just so long as it is needed....’

Frank Zappa continually referred to ‘the Big Lie’ in his book, ‘The Real Frank Zappa Book.’ He used it to describe organized religion, government, and the music industry. The song ‘When the Lie's So Big’ from Zappa's 1989 album Broadway the Hard Way also dealt with the concept.

Richard Belzer defines The Big Lie, in his book ‘UFOs, JFK, and Elvis: Conspiracies You Don't Have To Be Crazy To Believe,’ this way: ‘If you tell a lie that's big enough, and you tell it often enough, people will believe you are telling the truth, even when what you are saying is total crap.’

In Six Days of War, by Michael Oren, ‘The Big Lie’ is used in a similar context to describe the widespread accusation (primarily by Syria and Egypt), that the Arab defeats during the Six Day War were a consequence of direct United States and United Kingdom military intervention, especially from their air-posts in Libya.

In 2002, French journalist Thierry Meyssan wrote a controversial book called 9/11: The Big Lie, which argued that the 9/11 attacks were the result of a conspiracy by the United States government.

Now, the Big Lie is everywhere, but mainly as it is applied within the context of the hatred of President Obama.  Yet, we continue to ignore the Big Lie's effects upon our political system, even after we realize that we have had in place “truth-in-advertising” laws for some time now.  In other words, we have recognized the deleterious effects of lies upon us as consumers of products and services, but seem incapable of applying that same standard to our political ads and electioneering speeches. The first amendment right of free speech should not extend to the telling of lies to gain political power or elective office for that is a perversion of a right in order to gain power that can be used to destroy that very right and all the others we hold dear.  Unfortunately, that larger issue has not been dealt with to any great extent.  Instead, we have focused on areas of reform that tend to deal with transparency and disclosure of donors and backers.

There is, in both the House and Senate, a piece of legislation, called the “Disclose Act” (HR 5175) which addresses the issues of transparency and disclosure of election financing.  This is one way to begin putting some truth back into the election process.  As a direct response to the Citizens United decision, it would amend the Federal Election Campaign Act of 1971 “to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes” and would also require unions and corporations to disclose their top five donors when spending more than $10,000. And, Just recently, Reps. John Sarbanes (MD) and John Larson (CT) introduced legislation to create a system of public financing of elections for Congress.  It is called "Government By The People" (H.R. 20) and it leans toward giving back to the small donor the ability to influence the system through many small donations, by
-- Encouraging the participation of everyday Americans in funding campaigns by providing a $25 My Voice Tax Credit,
-- Establishing a Freedom From Influence Matching Fund to amplify low-dollar contributions. Candidates would be eligible for matching funds only by agreeing to limits on large donations;
-- Providing candidates with additional resources in the homestretch of a campaign so that outside special interest spending doesn’t dominate the airwaves and drown out the messages of citizen-backed campaigns.

This is all fine and good, because it begins to reform election financing, and to reduce the overall influence of big money on the election process.  But, what about the larger issue of “Truth in advertising” that seems to have been “hands-off” for quite some time?  According to Lippmannwouldroll .com posted by Matthew L. Schafer on June 22, 2010: 

“Perhaps surprisingly, election advertisements are not required to follow the same truth in advertising laws that govern commercial advertisements.  In order to protect consumers, the commercial advertiser is required to be truthful and non-deceptive; have evidence to back up claims; and to be fair.
“Political advertisements, however, are not governed by any truth in advertising rules.  “[Instead,] they can legally lie about almost anything they want,” Brooks Jackson (of FactCheck.org) argues. “In fact, the Federal Communications Act even requires broadcasters who run candidate ads to show them uncensored, even if the broadcasters believe their content to be offensive or false.”
“While based on providing First Amendment protection to political candidates, a scan of recent advertisements shows the consequences of “free-range” political advertisements.  The range of abuse in political advertisements, known for their low budgets and poor production quality, varies greatly.  Some advertisements contain outright lies, while others are simply ridiculous in nature.  While it would be impossible to regulate the “ridiculousness” of the advertisements, Congress could–at the very least–hold politicians to the same standards that the FTC holds corporations. 
An ad is deceptive if misleading statements or omitted information affect a consumer's purchasing decision or product use. An ad or business practice is unfair if it causes unavoidable consumer injury that is not outweighed by the benefit.   And, If you've been wronged by deceptive or unfair advertising, you can seek justice through the federal government."

It is, of course, questionable for the government to dictate matters of truth.  However, there are already evidentiary measures for truth-telling in courts; why can’t they be applied to false political ads and speeches?  In law, rules of evidence govern the types of evidence that are admissible in a legal proceeding, as well as the quality and quantity of evidence that are necessary to fulfill the legal burden of proof.  What are some of those rules of evidence?  Well, here are a few taken from the Federal Rules of Evidence (FRE)  governing the admission of facts by which parties in the U.S. Federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments.

"In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. (Evid. Code § 351; Fed. Rules Evid. 402.)  When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.

There are four traditional types of evidence: real, demonstrative, documentary, and testimonial (summarized for us on FindLaw.com):
REAL EVIDENCE.
Real evidence is a thing the existence or characteristics of which are relevant and material. It is usually a thing that was directly involved in some event in the case. The written contract upon which an action is based is real evidence both to prove its terms and that it was executed by the defendant.

DEMONSTRATIVE EVIDENCE.
Demonstrative evidence is just what the name implies--it demonstrates or illustrates the testimony of a witness. It will be admissible when, with accuracy sufficient for the task at hand, it fairly and accurately reflects that testimony and is otherwise unobjectionable. Typical examples of demonstrative evidence are maps, diagrams of the scene of an occurrence, animations, and the like. Because its purpose is to illustrate testimony, demonstrative evidence is authenticated by the witness whose testimony is being illustrated

DOCUMENTARY EVIDENCE.
Documentary evidence is often a kind of real evidence, as for example where a contract is offered to prove its terms. When a document is used this way it is authenticated the same way as any other real evidence--by a witness who identifies it or, less commonly, by witnesses who establish a chain of custody for it. However, because they contain human language, and because of the historical development of the common law, documents present special problems not presented by other forms of real evidence, such as when they contain hearsay.   In addition, some documents, such as certified copies of public records, official documents, newspapers, periodicals, trade inscriptions, acknowledged documents to prove the acknowledgment, certificates of the custodians of business records, and certain commercial paper and related documents are, to one extent or another, self authenticating.

TESTIMONIAL EVIDENCE.
Testimonial evidence is the most basic form of evidence and the only kind that does not usually require another form of evidence as a prerequisite for its admissibility. See Evid. Code § 702(b); Fed R. Evid. 602. It consists of what is said in the court at the proceeding in question by a competent witness.

One might simply say that Federal Laws of Evidence should be systematically and wholly taken over by the Federal Election Commission to enforce rules for political speech.  At the very least, we ought not to shy away from realizing that we already possess the rudiments for promulgating the existence of rules for acceptable political advertising and "speechifying."

So, let us get to the main point.  It should not be all that difficult to petition the FEC asking them to formulate rules for the conduct of truth in political advertising.  Do they have the power to formulate such a code of ethics, so to speak?   Well, basically, it's not that simple.  Wikipedia provides us with a summary of the FEC, and some clues to an answer:

"The Federal Election Commission (FEC) is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act.  It describes its duties as "to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections."

"Although the Commission's name implies broad authority over U.S. elections, in fact its role is limited to the administration of federal campaign finance laws. It enforces limitations and prohibitions on contributions and expenditures, investigates and prosecutes violations (investigations are typically initiated by complaints from other candidates, parties, "watchdog groups," and the public), audits a limited number of campaigns and organizations for compliance, and administers the presidential campaign fund, which provides public funds to candidates for president and nominating conventions."

That particular duty statement does not leave much room for hope that the FEC would even see "truth in political advertising" as part of its duties.  But, there’s more...
"The Commission is made up of six members, who are appointed by the President of the United States, and confirmed by the United States Senate. Each member serves a six-year term, and two seats are subject to appointment every two years. By law, no more than three Commissioners can be members of the same political party and at least four votes are required for any official Commission action. Critics of the Commission argue that this structure regularly causes deadlocks on 3 -3 votes, but others argue that deadlocks are actually quite rare, and typically based on principle rather than partisanship."  Current members include two appointed by President Obama and four members appointed by George W. Bush.  The Chairmanship of the Commission rotates among the members each year, with no member serving as Chairman more than once during his or her term.  The current Chair is an Obama appointee.

"Critics of the FEC, including campaign finance reform supporters such as Common Cause and Democracy 21, have complained that it is a classic example of regulatory capture where it serves the interests of the ones it was intended to regulate. The FEC's bipartisan structure renders the agency ‘toothless.’ Critics also claim that most FEC penalties for violating election law come well after the actual election in which they were committed. To complete steps necessary to resolve a complaint - including time for defendants to respond to the complaint, time to investigate and engage in legal analysis, and finally, where warranted, prosecution - necessarily takes far longer than the comparatively brief period of a political campaign."

This rather narrow mission of the FEC leaves just one alternative, perhaps and that is, legislation designed to regulate first and third party political advertisements that disseminate lies and unfounded distortions.  To be more specific, since speech cannot be regulated in the same way as products or services, let us say that what should be required of political speakers in discussing another candidate is verifiable documentation of any charge, allegation, personal description or characterization, any citing of "facts" against a candidate or office-holder; and that any citing of hypotheticals, postulations, theories or opinions must likewise be undistorted and able to be documented.  Any candidate or office-holder who fails the 3-part test for truth, non-distortion and fairness could be subject to fine or imprisonment, or be made to pay for equal time on the airways and the internet to rebut the undocumented speech, or some other penalty.

In other words, a candidate would still be free to say anything he or she desires, but undocumented claims against a person or his family, his office or his candidacy and his record could be deemed to constitute an unfair and distorted or harmful mode of campaigning.  It should be up to Congress and the FEC to define what constitutes adequate documentation, and within what time frame it must be presented when challenged. This would apply to direct attack ads, third party or issue ads, political speeches and documentaries about a particular candidate.

Free speech must be protected, but lying speech is destructive of society's norms and of its most cherished values and institutions.  To say that any type of speech should be free and unrestricted is to put our system of government at risk.  The Big Lie technique is not acceptable political speech.  It is as destructive to our system of laws as is the crime of perjury!   It gnaws at the roots of our system of laws and freedoms and eventually eats them away.  We cannot go on ignoring the current attempts by radical Republicans to use the propaganda technique of the Big Lie to gain power.  It is not only a question of fairness, it is a question of survival.  In this case, the protection of the freedom to lie and dissemble, and to bear false witness, is paramount to protecting the very vice against which major religions and common law have warned since human history began.  Unrestricted lying is equivalent to a cancerous growth, because it inexorably alters the fundamental pillars of society: trust, justice, truth, honesty and mutual responsibility for one another, all of which hang in the balance, to say nothing of the relationship with a faithful Creator or Source of Truth. 

Soon, I expect to post more on this subject and to cite examples, not only of the types of political communications that should be so regulated, but to present further examples of what happens to societies that condone lying as an acceptable norm of conduct for its leaders.