After Alvarez, the state may no longer have the power to ban or punish malicious false campaign speech, whether made by candidates or others. The result of this conclusion is that we are likely to see more false campaign speech in elections, including some brazen lies. With candidates’ pants increasingly on fire, and with the wooden noses of campaign consultants growing ever longer, the question is whether counterspeech—from opposing candidates, the media, and perhaps the government—will be enough to give voters the tools they need to make intelligent choices. I take solace in Jack Shafer’s depressing observation that most voters don’t expect honesty from their politicians, and therefore they are less likely to be misled by them.
Richard L. Hasen,
A Constitutional Right to Lie in Campaigns and Elections?,
74 Mont. L. Rev.
Available at: http://scholarship.law.umt.edu/mlr/vol74/iss1/4