In the context I know best, union elections, the National Labor Relations Board has similarly refused to intervene when employers or unions misrepresent the facts. Working people, in both union and political elections, “are capable of recognizing ...
Republican presidential candidate Donald Trump gestures as he speaks at a campaign rally. (AP Photo / Ross D. Franklin)
Seventy-eight percent of the factual claims made by presidential candidate Donald Trump that were checked by non-partisan Polifact were â€œmostly falseâ€ or worse. The report, issued on June 29, rated more of Trumpâ€™s statements â€œpants on fireâ€ than those of all other candidates combined.
Trumpâ€™s disrespect for the truth brings to mind Justice Anthony Kennedyâ€™s description of a respondent in a 2012 Supreme Court decision: â€œLying was his habit.â€ And, though it did not concern Trump, United States v. Alvarez, together with the rules governing misrepresentation during union elections, contains important lessons for the current presidential campaign.
The Alvarez decision established the First Amendment right of politicians to lie, a handy right for the presumptive Republican nominee. Striking down the federal Stolen Valor Act, the Court reversed the conviction of a local government official who falsely claimed to have been awarded the Congressional Medal of Honor. In ringing terms, the Court declared that the â€œremedy for speech that is false is speech that is true.â€¦ The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.â€
In the context I know best, union elections, the National Labor Relations Board has similarly refused to intervene when employers or unions misrepresent the facts. Working people, in both union and political elections, â€œare capable of recognizing campaign propaganda for what it is and discounting it,â€ the board concluded.
While the notion that truth will win out may sound good, it presents two problems in the case of Trumpâ€™s whoppers.
First, critical to the exposure of the lie in Alvarez, as well as those of many candidates for office, is an uninhibited press. But Trump has created a blacklist of media outlets rivaling Richard Nixonâ€™s enemies list. The Washington Post, Univision, The Des Moines Register, the New Hampshire Union Leader, and many other papers and websites, prestigious and upstart, have been banned from Trump events. While these bans are largely symbolic, they are ominous indicators of what a President Trump might do to prevent exposure of his lies.
Second, and more problematic, the cruelest lie being told by Donald Trump is that we can â€œmake America great againâ€ through racial, ethnic, and religious exclusion and discrimination. Here as well, there is a lesson from union elections. While the NLRB does not police misrepresentation generally, it has recognized that appeals to racial prejudice are different because â€œ[t]hey inject an element which is destructive of the very purpose of an election.â€ The board found that â€œprejudice based on color is a powerful emotional forceâ€ and that â€œa deliberate appeal to such prejudice is not intended or calculated to encourage the reasoning faculty.â€
Of course, in presidential and other political elections, appeals to racial prejudice are permitted, indeed, they are protected by the First Amendment. â€œIt is only the sense of decency of the candidateâ€¦and the maturity of the electorate,â€ the board observed, â€œwhich places restraint uponâ€ the manipulation of prejudice.
Trump appears to have no such â€œsense of decency.â€ Yet my experience in talking to working people all over the country tells me that they do have the â€œmaturityâ€ to rise above our basest instincts and understand that their legitimate anxietiesâ€”produced by decades of flat or falling wages, declining job quality, and retirement insecurityâ€”are being manipulated. Speaking clearly about the real economic challenges working people face and common-sense solutions like strengthening their unionsâ€”as well as calling out racist demagoguery for what it isâ€”is the best remedy for Trumpâ€™s lies.
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