Why?

Imagine if you will, the following impossible scenario: Candidate X says of Candidate Y, “His father was with Lee Harvey Oswald prior to Oswald’s being—you know—shot. … That was reported, and nobody talks about it.”

Shouldn’t this ridiculous, petty, cruel, and destructive lie be punished?

The answer, under First Amendment law, is probably not. The strictly imaginary comment above, however crude and stupid, is nonetheless a statement about an important political issue: determining the presidential nominee of a major party. So, if there is a “hierarchy” of speech under the First Amendment, this allegation starts out at the top. Candidates for president sling all sorts of mud at each other—one candidate, for example, may claim another is planning to “rig the election”; was involved in the “murder” of a government official even though an investigation had found suicide; or was the co-creator, with a sitting president, of a terrorist conspiracy against the United States.

Such allegations—not that anyone would make them—would be contemptible; but I would be worried about a system in which the government could silence them. A statute in Ohio, for example, set up a board to review campaign claims and made it a crime, punishable by up to six months in jail, for any person to make any false statement about a candidate or an election.

A federal court struck the law down in 2014—quite rightly. That’s not because there’s any “constitutional value” in false statements of fact but because the cure—government control of what can be said in politics—is far worse than the disease. To enforce this law, the tribunal would summon the speaker and demand proof that the false statement was not a deliberate lie. That process will inevitably suppress some true statements along with the false and frighten some meritorious speakers into silence; those suppressions are, over time, likely to be skewed toward speech that criticizes government.

Look at it differently. What is it like to be falsely accused of complicity in the Kennedy assassination? Surely it must lead people to shun the victim—and, in a nation full of heavily armed lunatics, may even put the smeared person’s life at risk. If government can’t punish this lie, could the victim sue for defamation (what used to be called “slander” or “libel”)?

At first glance, you’d think so. The law provides some protection for an individual’s reputation. Defamation, in law, is the transmission to others of false statements of fact that would cause others to shun the person defamed. Thus, falsely claiming that someone is a criminal, or an incompetent at his or her job, or afflicted with a contagious disease, or was once governor of New Jersey (kidding!) can usually give rise to a lawsuit and damages.

But even an individual lawsuit uses government power to suppress speech. Even a meritless lawsuit can impose costs on a truthful speaker. And the most important defamation case of the 20th century arose out of a systematic attempt to use defamation suits to suppress reporting on the civil-rights movement. Southern government officials began filing state-court defamation actions whenever national media reported on their doings with articles that contained any mistake of fact, whether innocent or not, important or not. In response, the Court, in a case called New York Times Co. v. Sullivan, created the modern First Amendment doctrine of defamation.