RUTHFULLY YOURS

• Unless he has lied on government forms, it is unlikely that he can be successfully prosecuted or civilly sued. His victims are primarily the voters who cast ballots for a person who was very different from who they believed him to be.
• No congressman has ever been removed for defrauding voters, but if there were ever a case for doing so, this would be it. The House would be reluctant to use that nuclear option because it would subject many incumbents to scrutiny for their electoral lies.
• The dangers of punishing general falsehoods is demonstrated by the laws of other countries. In Poland it is a crime to state that the Polish people participated in the Holocaust, although that statement is absolutely true as a matter of history. Polish people not only collaborated with Nazis, some continued to kill Jews even after the Nazis left. The Polish parliament has declared the historic truth to be a punishable lie.
• In Turkey, it is a crime to say that the Armenian genocide occurred. In France it is a crime to say that this very same event did not occur.
• The alternative to freedom of speech is necessarily some form of censorship. Throughout history censorship by governments, churches and other powerful institutions has been the rule. It has not worked. Nor has untrammeled free speech worked perfectly. But history has clearly demonstrated that censorship is far more dangerous to liberty than is free speech.
• “[W]e have nothing to fear from the demoralizing reasoning of some, if others are left free to demonstrate their errors…” – Thomas Jefferson, July 3, 1801.
• [A]s long as truth tellers are able to respond to liars, we have far more to fear from censorship than from free speech.

Congressman George Santos has lived a life of lies. He has lied about his early life, his academic record, his business experience, his wealth, his heritage, his personal life and his criminal record. He is fortunate that the vast majority of these lies have not been under oath. Nor have they defamed specific individuals. Unless he has lied on government forms, it is unlikely that he can be successfully prosecuted or civilly sued. His victims are primarily the voters who cast ballots for a person who was very different from who they believed him to be.

No congressman has ever been removed for defrauding voters, but if there were ever a case for doing so, this would be it. The House would be reluctant to use that nuclear option because it would subject many incumbents to scrutiny for their electoral lies.

It is possible therefore that George Santos will not be held legally accountable for his lies, especially the most egregious ones which got him nominated and elected to Congress.

Some will be surprised to learn that the First Amendment to the Constitution protects most lies. It allows Anti-Semites to deny the Holocaust. It protects sexists and racists mendaciously engaging in false and malicious hate speech. It does not allow Congress to enact laws protecting the memory of soldiers who died in defense of our country. It allows ignorant people to claim that the earth is flat and that astronauts never landed on the moon.

Although lying when not under oath and when not attacking a specific individual is not a crime in America, it is in other countries that punish the falsification of history and hate speech directed at groups rather than individuals. We have chosen a different way that is not without costs. Pervasive falsity in the public arena is the price we pay for freedom of speech and the marketplace of ideas.

The dangers of punishing general falsehoods is demonstrated by the laws of other countries. In Poland it is a crime to state that the Polish people participated in the Holocaust, although that statement is absolutely true as a matter of history. Polish people not only collaborated with Nazis, some continued to kill Jews even after the Nazis left. The Polish parliament has declared the historic truth to be a punishable lie.

In Turkey, it is a crime to say that the Armenian genocide occurred. In France it is a crime to say that this very same event did not occur.

It is for historians — not judges or juries — to determine the truth or falsity of historic claims, just as it is the job of scientists to pass judgement on the accuracy of scientific claims.

Over the past several years, there have been false claims about COVID, vaccines and other medical issues. Lying about such matters can cause significant harm.

Significant harm can also be caused by false claims regarding elections. In Brazil, such claims about the most recent election contributed to violence. In our own country, false claims about the 2020 presidential election have exacerbated divisions among our citizens.

Allowing George Santos to live his life of lies without legal accountability is the heavy price we pay for denying the government the power to censor. What Winston Churchill once said about democracy can be paraphrased to apply to freedom of speech: the worst policy, “except for all the [others] that have been tried from time to time.”

The alternative to freedom of speech is necessarily some form of censorship. Throughout history, censorship by governments, churches and other powerful institutions has been the rule. It has not worked. Nor has untrammeled free speech worked perfectly. But history has clearly demonstrated that censorship is far more dangerous to liberty than is free speech. Thomas Jefferson may have overstated it when he wrote the following in a letter 25 years after the Declaration of Independence: “[W]e have nothing to fear from the demoralizing reasoning of some, if others are left free to demonstrate their errors…” He was surely correct, however, that as long as truth tellers are able to respond to liars, we have far more to fear from censorship than from free speech.

So let us continue to condemn George Santos in the court of public opinion but let us not criminalize his lies, unless they fall within narrow exceptions.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast.