Could Congressman George Santos be prosecuted for lying to voters?

HIS LIES are so profuse that mentioning more than a few would be tedious. Among George Santos’s biggest whoppers—besides his endorsement of Donald Trump’s false assertion that he won the 2020 presidential election—are the claim that his mother was at the twin towers when the 9/11 terrorist attacks happened, that his grandparents fled the Holocaust and that In 2016 several of his employees were killed in a shooting at a gay nightclub in Florida. His résumé is reportedly largely invented.

Only after Mr Santos, a Republican from New York state, was elected to Congress in November was the extent of his deception exposed. He has since admitted to “embellishing” his CV, though he denies being “a criminal who defrauded the entire country and made up this fictional character”. But many Americans believe that lying to voters to win an election is a crime, or at least ought to be. Can Mr Santos be prosecuted for his campaign trail fibs?

The First Amendment protects most speech, including lies. There are exceptions: lies that incite violence, defame, constitute perjury or facilitate financial fraud are unprotected. In general, though, American courts uphold the principle that governments have no right to criminalise speech, however offensive or misleading it may be. The idea is that, in most cases, individuals ought to decide for themselves what is true. Better that than turn the government into an arbiter of truth.

Some states have sought to make an exception for some sorts of lies that politicians tell when they campaign for office. At least 16 have criminalised false campaign speech, such as lies about rival candidates or ballot initiatives. But courts have largely protected lying politicians from conviction. In 2012, in United States v Alvarez, the Supreme Court overturned the Stolen Valor Act, a law that made it illegal to falsely claim to have won military medals. Xavier Alvarez, an elected member of a water-district board in California, appealed against his conviction under the statute. (Mr Alvarez also claimed to have played professional hockey, rescued the American ambassador during the Iran hostage crisis, and married a Mexican starlet.) The Supreme Court sided with him. An “interest in truthful discourse alone” does not warrant a ban on speech “absent any evidence that the speech was used to gain a material advantage,” it ruled. To uphold Mr Alvarez’s conviction would be to give the government “broad censorial power unprecedented…in our constitutional tradition”.

Mr Alvarez told his lies after he had been elected. Suppose he had done so during the campaign, as Mr Santos did. In the eyes of the courts that might not matter. The Supreme Court has not ruled on campaign-trail untruths, but a number of state courts have. Citing Alvarez, appellate courts in Massachusetts, Minnesota and Ohio have struck down laws that criminalised false campaign speech. In Massachusetts the court considered the hypothetical scenario of a candidate who lies about his credentials during a pre-election debate. The solution to such deceit, it held, is counterspeech, not criminal prosecution.

New York is not among the states that criminalises political lying, and it is not clear that the lies of Mr Santos would qualify as criminal behavior in states that have such statutes. So he will not be sent to the slammer for that. He could be charged with a crime if he misappropriated campaign funds for personal use; Investigations of that question are under way. Even a credible criminal charge would not compel him to step down: a member of the House of Representatives can be expelled only by a two-thirds majority of the chamber. Republicans in the House are unlikely to risk diminishing their tiny majority by removing him. That would trigger an election to replace him that they might lose. Whatever Mr Santos’s sins, he will probably stay in Congress—and out of jail—at least until the next election, in 2024.

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