Truth Is Too Slippery, and Too Precious, A Thing to Enforce

The biggest thing missing from ethics codes is lying. Everyone agrees that a government official or employee who lies lacks integrity, but ethics codes almost never prohibit this.

It isn't that lying is okay, it's just very hard to enforce. Defending a lie leads to more lies and other forms of dishonesty. It can get really ugly.

That's why it's better to deal with truth-telling in a positive, unenforceable way in aspirational codes, such as the American Society for Public Administration's code, which is included in the City Ethics Model Code before the enforceable provisions.

Here's an example of what can happen when lying is prohibited. In Wisconsin, according to an article in the Milwaukee Journal Sentinel, judicial candidates are prohibited from lying about their opponents.

One state supreme court candidate's ad talked about the other candidate's defense, as a public defender, of a man accused of molesting a girl. "[The opponent] found a loophole. [The accused] went on to rape another child," the ad said.

The ad did not mention that although the judicial candidate got the conviction overturned on appeal, the state supreme court later upheld the conviction, and the accused served his full sentence before raping another child. The later crime had nothing to do with the judicial candidate's defense.

A complaint was filed by the state judicial commission with respect to this ad. The candidate who ran the ad won the race. It is before a three-judge ethics panel, which will report to the state supreme court, on which the winning candidate sits.

Here's how the now-justice defended himself: According to the article, he said the complaint should be dismissed because it is based on what viewers might have inferred from the ad, rather than what the ad actually said. "The text does not say that offense was committed because Louis Butler succeeded in reversing his conviction. While that may be an inference a given person might draw, the actual statement says Mr. Mitchell 'went on' to commit another offense."

According to the article, the now-justice also argued that the First Amendment protects implications made in political speech, saying that only objectively false statements can be regulated.

In other words, you can lie all you want as long as you can successfully argue that it wasn't a false statement, but a false implication, even if that false implication was clearly intended to give listeners a false belief.

This lie is worse than the first. And that's what trying to enforce against lying usually leads to:  worse and worse lies. And hiding behind the First Amendment, of course.

The First Amendment is very big, and I think the justice will successfully hide behind it. He will then have both the law and the constitution on the side of crafty misrepresentation. Wisconsin will be worse off than if no complaint had been brought.

For more on this topic, see this blog entry called "Truth-Telling."

Robert Wechsler
Director of Research-Retired, City Ethics

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