The Supreme Court rejected the government’s argument that lies should not be protected by the First Amendment. The court concluded that lies are protected by the First Amendment unless there is a legally recognized harm, such as defamation or fraud, associated with the lie. So the Stolen Valor Act was struck down as an unconstitutional restriction on speech. The court pointed out that some false statements are “inevitable if there is to be open and vigorous expression of views in public and private conversation.”

Crucially, the court feared that the power to criminalize lies could damage American democracy. The court reasoned that unless the First Amendment limits the power of the government to criminalize lies, the government could establish an “endless list of subjects about which false statements are punishable.”

Justice Anthony Kennedy, who wrote the majority opinion in Alvarez, illustrated this danger by citing George Orwell’s dystopian novel “1984,” in which a totalitarian government relied on a Ministry of Truth to criminalize dissent. Our constitutional tradition, he wrote, “stands against the idea that we need” a Ministry of Truth.

George Santos, unlike Xavier Alvarez, lied during an election campaign.

In Alvarez, the Supreme Court expressed concern about laws criminalizing lies in politics. It warned that the Stolen Valor Act applied to “political contexts, where although such lies are more likely to cause harm,” the risk that prosecutors would bring charges for ideological reasons was also high.

The court believed that the marketplace of ideas was a more effective and less dangerous mechanism for policing lies, particularly in politics. Politicians and journalists have the incentives and the resources to examine the records of candidates such as Santos to uncover and expose falsehoods.

The story of George Santos, though, is a cautionary tale for those who hold an idealized view of how the marketplace of ideas operates in contemporary American politics.

Democracy has not had a long run when measured against the course of human history. From the founding of the American republic in the late 18th century until the advent of the modern era, there was a rough division of labor. Citizens selected leaders, and experts played a critical gatekeeping role, mediating the flow of information.

New information technologies have largely displaced the role of experts. Everyone now claims to be an expert who can decide for themselves whether COVID-19 vaccines are effective or who really won the 2020 presidential election. These technologies have also destroyed the economic model that once sustained local newspapers.

Thus, although one local newspaper did report on Santos’ misrepresentations, his election is evidence that the loss of news reporting jobs has damaged America’s democracy.

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