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Sunday, July 15, 2018

July 20 (Bloomberg) — You know the U.S. presidential campaign has entered its silly season when both sides have settled into the longstanding summer tradition of accusing the other of lying.

Let’s assume for the sake of argument that each side is serious — each isn’t just saying the other is lying; each earnestly believes that the other is lying. In a regulated world, the obvious question is this: Why let them get away with it?

It’s important to understand how serious an affront to discourse lying is. When we claim that a candidate has lied, we are not saying that he misspoke, or is poorly informed, or misunderstands. We are saying that he is intentionally trying to deceive the voters.

Intentional deceit is often a civil offense, sometimes even a crime. You can go to prison if you deceive potential investors about your company’s financial position. You might say that elections are different because, as the Supreme Court has repeatedly affirmed, in political campaigns we see the “fullest and most urgent application” of the First Amendment. On the other hand, the justices have also warned us that lying “is at odds with the premises of democratic government.”

Just last year, in Nevada Commission on Ethics v. Carrigan, the court ruled that there is no violation of the First Amendment when a state prohibits an elected official from voting on issues on which he has a conflict of interest. A legislator’s vote isn’t speech, the justices explained, and is cast only as a trustee for the public: “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”