—Andrea Scoseria Katz, NYU School of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
The problem with lying in politics, the philosopher Hannah Arendt once pointed out, isn’t that people start to take the lies seriously, but rather that “nobody believes anything any longer”:
A people that no longer can believe anything cannot make up its mind. It is deprived not only of its capacity to act but also of its capacity to think and to judge. And with such a people you can then do what you please.
During the COVID-19 pandemic, with millions of stricken people being turned away from overburdened health care systems and forced to seek remedies, financial help, medical advice, or just good news where they can, public lying can be a matter of life or death—a fact that hasn’t stopped scores of unscrupulous actors from peddling falsehoods to profit from the crisis: TV personalities and internet influencers touting their own “remedies,” “detox diets,” or “immune-boosting” vitamins to ward off the disease, religious leaders in South Korea, Brazil, and Mexico downplaying the dangers of COVID-19, or cybercriminals posing as authorities from the UK government or the World Health Organization to steal people’s personal data.
But nothing compares to the phenomenon of heads of state taking to the podium to spout untruths. This includes authoritarian China, where it turns out that the government may have underreported the total of domestic coronavirus cases by a factor of four; embattled Venezuela, where, in a video since deleted by Twitter, President Nicolás Maduro touts a “natural brew” to fight the virus; and Brazil and the United States, two otherwise robust democracies headed by illiberal populists who figure among the world’s worst offenders in sheer mendacity. After initially dismissing the severity of the virus, both Jair Bolsonaro and Donald Trump have attempted to muzzle negative press coverage of the crisis, silenced their own experts’ medical guidance, and advocated untested drugs as a cure for the infection, Trump even conjecturing last week that exposure to UV light or ingesting disinfectant by injection could be cures for COVID-19, a baseless claim alarmed experts rushed to debunk.
The point of these sorts of lies—groping for quick fixes while claiming credit and avoiding responsibility; dismissing “inconvenient” facts; stigmatizing criticism, debate, and the free press—is, above all, to tighten the government’s hold on power. Taken altogether, the assault on truth isn’t just nihilistic; it is authoritarian. When the politically powerful lie, as Arendt points out, they erode the people’s ability to “make up its mind”—in other words, they undermine the consent of the governed, the very basis of democracy itself. At a time when governments have been dealt unprecedented emergency powers over the economy and society alike, protecting the people from the contagion of the virus and virus-related lying is a political and legal problem.
For now, defenses invoking legal limits on this sort of harmful false speech have tended to come from three sectors: the press, social media platforms, and to a limited extent, government itself.
A free press’s oppositional and fact-checking role is often taken for granted in liberal democracies; newer, at least in the famously speech-protective United States, is the idea that the press can self-censor by refusing to publish misinformation. On March 13, news networks CNN and MSNBC cut away from their live broadcast of the daily White House coronavirus briefing when President Trump began playing a video produced by aides casting his handling of the epidemic in a favorable light. “To play a propaganda video at taxpayer expense in the White House briefing room is a new—you can insert your favorite word here,” said CNN anchor John King. Since then, a number of news outlets—Yahoo News, The New York Times, the Washington Post, among others—have suspended livestream transmission of these briefings and are instead showing only portions they deem “newsworthy.”
Since the COVID-19 pandemic hit, social media giants like Facebook, Instagram, and Twitter have broadened their guidelines against harmful misleading speech—though whether there is much appetite to enforce these rules against heads of state is less certain. Facebook pledges to remove false content “that can contribute to imminent physical harm” and to flag and demote the rest. Twitter’s new policy on misinformation requires taking down tweets that deny established scientific fact, incite people to defy recommended medical guidance, threaten to cause panic or social unrest, or promote “alleged cures” known to be ineffective, “even if made in jest.” (The hashtag #InjectDisinfectant is now blocked, for example.) Although new guidelines appear to cover false content promoted by officeholding COVID-deniers, so far enforcement has been limited to Twitter’s removal of President Maduro’s “natural brew” to cure COVID-19, and Facebook’s recent deletion of videos of the Brazilian president chatting with his supporters in a supermarket and promoting hydroxychloroquine. (To date, none of President Trump’s coronavirus-related tweets have been deleted, so far as is known.)
When it comes to assessing government checks and balances against coronavirus-related lying by politicians, there are two complicating factors. One is the relative rarity of the combination of a robust checks-and-balances system with a head of state known to be a liar (few governments have shown the latter propensity during the epidemic, although some have exploited the crisis to push troubling institutional changes). The other is the fact that constitutional checks are often subject to political controls, as in the U.S., where reaction to the virus has been refracted through party ideology, and where the official response to Trump’s coronavirus-related falsehoods remains muted, limited to calls by opponents in Congress for hearings and greater oversight over the Administration’s inept handling of the virus generally, as well as isolated whistleblower lawsuits alleging politicization of federal medical agencies.
Notwithstanding its president’s attempted attacks on government oversight bodies, civil society, and the free press, Brazil, a constitutional system in which public prosecutors enjoy greater independence, and sitting politicians have weaker protection from lawsuits, provides a better example of legal checks against presidential lying. For instance, after Bolsonaro’s son lied about his father’s results on a COVID-19 test, a federal court ordered the hospital where the test was conducted to produce the results. A few weeks later, after attempting to silence his own Minister of Health and Chief of Police (the latter allegedly in relation to a nepotism investigation involving Bolsonaro’s own son), Bolsonaro decided to fire the pair, a move that led to, not just the widely scrutinized resignation of his celebrity Minister of Justice, Sergio Moro, but also speculation that Bolsonaro may soon face legal reprisal for the firings.
Ultimately, it was Arendt’s view that lying in politics is driven by man’s desire for control over the modern world—and limited by our sheer incapacity to alter reality, “for which there is no substitute,” as she put it. “No matter how large the tissue of falsehood that an experienced liar has to offer, it will never be large enough, even if he enlists the help of computers, to cover the immensity of factuality.”
This is a comforting thought. The risk, however, in the age of coronavirus, is that by the time reality manages to catch up to the falsehoods, the scale of the human tragedy will be too great.
Andrea Scoseria Katz, Lies in the Time of Corona: Attempts to Inoculate
Truth from a Pandemic, Int’l J. Const. L. Blog, Apr. 29, 2020, at: http://www.iconnectblog.com/2020/04/lies-in-the-time-of-corona-attempts-to-inoculate-truth-from-a-pandemic/
 Hannah Arendt: From an Interview, New York Review of Books (Oct. 26, 1978), at https://www.nybooks.com/articles/1978/10/26/hannah-arendt-from-an-interview/.
 See, on this theme, Thomas da Rosa de Bustamante & Emilio Peluso Neder Meyer, Bolsonarism & Covid-19: Truth Strikes Back, Int’l J. Const. L. Blog, Mar. 24, 2020, at: http://www.iconnectblog.com/2020/03/bolsonarism-and-covid-19-truth-strikes-back (“A constitutive element of the new forms of illiberal populism is a carefully planned attempt to undermine Rawlsian public reason by changing the forms of action of liberal institutions.”)
 Juliano Zaiden Benvindo, Bolsonaro’s Attacks on Brazilian Environmental Agencies: When “Money Talks” May be the Last Word, Int’l J. Const. L. Blog, Aug. 28, 2019, at: http://www.iconnectblog.com/2019/08/bolsonaros-attacks-on-brazilian-environmental-agencies-when-money-talks-may-have-the-last-word/. Additionally, at least one academic suggests that an “empirical turn” by Brazil’s Supreme Court—that is, producing opinions grounded in, and citing, serious scientific studies—could be a tool for pushing back against Bolsonaro’s brand of “post-truth” politics, Debora Diniz, Symposium – The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism: The Empirical Turn in the Brazilian Supreme Court: Getting it Right, Int’l J. Const. L. Blog, June 28, 2019, at: http://www.iconnectblog.com/2019/06/symposium-the-brazilian-supreme-court-and-the-protection-of-democracy-in-the-age-of-populism-the-empirical-turn-in-the-brazilian-supreme-court/.
 Hannah Arendt, Lying in Politics: Reflections on the Pentagon Papers, N.Y. Rev. of Books(Nov. 18, 1971), at https://www.nybooks.com/articles/1971/11/18/lying-in-politics-reflections-on-the-pentagon-pape/.