Tag Archives: deception

Compelling Honesty

It’s interesting how many people indignantly wrap themselves in the Free Speech provisions of the First Amendment in order to justify behaviors that–properly understood–aren’t really speech at all.

In all fairness, it can be difficult to distinguish between actions that are intended to communicate a message (protected) from actions that are committed through speech (not protected).

If you describe that cubic zirconium you are selling as an expensive diamond, the fact that your fraud involved the spoken word won’t turn your deception into a free speech issue. On the other hand, if you burn an American flag (assuming it’s yours to burn), you are clearly doing so in order to convey a message. (The content of that message is precisely why people get so angry.)

This little exercise in First Amendment philosophy is an introduction to an interesting case involving Crisis Pregnancy Centers.

Crisis pregnancy centers (CPCs) are pro-life organizations that often offer women incorrect, incomplete or misleading information about their reproductive options.

In response, some localities have passed legislation requiring CPCs to make disclosures to their clients. California, for example, passed the Reproductive FACT Act in 2015. Under this law, CPCs must notify clients of public resources available to prevent or terminate pregnancies. It also mandates that CPCs inform their patients if they are not licensed as a medical facility.

Anti-choice advocates have taken issue with these requirements. The National Institute of Family and Life Advocates has sued California’s attorney general on behalf of CPCs. In November 2017, the U.S. Supreme Court decided it would hear the case.

The question the Court will have to decide is deceptively simple: does requiring Crisis Pregnancy Centers to disclose accurate information that counters or undermines their beliefs violate their First Amendment right to free speech?

At first blush, the idea of requiring speech to be truthful seems like a great idea. (Fox “news” anyone?) In practice, it’s difficult if not impossible to separate opinion from flat-out lying. After all, most lies aren’t as obvious as those constantly being told by Donald Trump and Sarah Huckabee Sanders. In the case of Crisis Pregnancy Centers, however, the intent to mislead is pretty transparent.

A 2016 paper published in the Journal of Pediatric and Adolescent Gynecology found that nearly half of the 85 websites surveyed promoted abstinence-only sexual education. Over 60 percent of these websites provided negative facts about condoms, including minimizing their efficacy and suggesting they break often, and less than 10 percent encouraged the use of condoms to prevent sexually transmitted infections.

A larger examination of 254 CPC websites, published in Contraception in 2014, found that 80 percent provided at least one item of false or misleading information — most commonly, claiming links between abortion and mental health concerns.

A study published in 2017 in Women’s Health Issues focused on the websites of crisis pregnancy centers in Georgia. It reviewed all of the accessible websites of the CPCs in the state and found that more than half had “false or misleading statements regarding the need to make a decision about abortion or links between abortion and mental health problems or breast cancer.” Eighty-nine percent of sites did not indicate that their centers do not offer contraceptives or direct patients to resources where they might find them.

There is considerably more abortion research at the link.

The question that the Justices will have to weigh, however, is unrelated to the issue of reproductive choice–although attitudes about abortion will undoubtedly play an outsized role.

The legal issue to be resolved will apply in areas far removed from reproductive rights. What level of harm to the public justifies government interference with an advocacy organization’s communications? Do the lies being peddled rise to the level of fraud, as in our cubic zirconium example? Or should the risks to the “consumers” of these services be governed by the doctrine of caveat emptor–let the buyer (or in this case, the pregnant woman) beware? Should the imposition of government sanctions require intent–that is, should a finding of culpability require evidence that the people making the false claims know better?

I personally think that organizations willing to lie to women who are already distraught are despicable. But legal analysis must consider the consequences of a decision based upon that sort of emotional reaction.

Can the Supreme Court craft a decision that limits the ability of dishonest folks to prey on vulnerable women, without handing government a cudgel with which to beat the merely opinionated? And if so, what should be the burden of proof?


From the Mouths of Babes….

Okay, so maybe not babes. Actually, graduate students.

Where I teach, at SPEA-IUPUI, students have the option of enrolling in “Directed Studies,” essentially, tutorials in which a professor supervises student research that culminates in a relatively lengthy and (hopefully) analytical paper on a subject that the student wishes to explore.

I recently worked with a student who wanted to understand why lower-income Americans so often vote against their own economic self-interest.

The paper he turned in gave evidence of considerable research, and it made a number of very good points. He gave me permission to share a couple of his more intriguing conclusions.

For example, he looked closely at Paul Ryan’s 2012 proposed budget, and the analysis of that budget by the Congressional Budget office. As widely reported, the plan proposed massive savings to be generated by “adjusting” Medicaid and turning Medicare into a “voucher” system. It also dramatically reduced corporate and individual tax rates, while purportedly “growing overall revenue…What was not included, however, was the way Mr. Ryan intended to grow this revenue.”

These specifics would seem to be particularly important, since the plan made very clear that tax receipts would plummet and defense spending would increase. As my student recognized, however,  actually identifying specifics–in this case, specifying the programs that would be cut and the extent of those cuts–would spell political doom.

“This is an example of calculated policy ambiguity. When presented to less educated voters or those who do not possess the means or time to fact-check its claims, it appears as a viable way to aid our country in the face of mounting debt. However, when examined closely it reveals a strategy of political gamesmanship and a budget plan that would hurt most those its simplified talking points are aimed to attract.”

A second tactic pinpointed in the paper revolved around the deliberate use of religion to divert focus from bread-and-butter issues–the use of hot-button “wedge issues” to obscure the economic harms likely to flow from other, less emotionally-freighted policies and positions. The paper cited research showing that religiosity is more important than income, sex, age or ethnicity in predicting support for conservative causes.

So. Bright shiny objects (Stop the “homosexual agenda”!! Birth control means sex without consequences!! War on Christmas!!) plus “calculated economic ambiguity.”

Sounds about Right.