Key Takeaways
- False political speech is generally protected by the First Amendment unless it meets the standard for defamation.
- Public figures and officials must prove actual malice: that the speaker knew a statement was false or acted with reckless disregard for whether it was true.
- Defamation suits have produced major recent judgments, but they are slow and costly, which leaves candidates in local races with fewer practical defenses.
Campaign ads stretch the truth all the time. When does a political lie become something the law can punish?
In this TalksOnLaw Brief, Joel Cohen talks with Barbara McQuade, professor at the University of Michigan Law School and former United States Attorney for the Eastern District of Michigan, about where the law draws the line on false political speech.
Defamation Is the Line
For better or for worse, Professor McQuade explains, the First Amendment allows people to lie in politics unless a statement meets the standard for defamation. A false claim that harms someone's reputation can be actionable. But when the target is a public figure or public official, the plaintiff must prove actual malice: that the speaker knew the statement was false or acted with reckless disregard for its truth. Statements with a kernel of truth, where the gist is accurate, are often protected.
Who Can Fight Back
At the highest levels of politics, she notes, candidates have rapid-response operations and intense press scrutiny to answer false claims. Her greater concern is lower-level races, such as city and municipal elections, where candidates lack the resources to respond, and where a defamation suit usually concludes long after the election is over.
Recent Successes
Professor McQuade points to defamation cases that have held speakers accountable, including the Sandy Hook families' judgments against Alex Jones, the verdict that Georgia election workers Ruby Freeman and Shaye Moss won against Rudy Giuliani, and E. Jean Carroll's verdicts against Donald Trump. Lies in politics, she concludes, are likely here, but that does not mean there is no remedy.
What to Know Now
The actual malice standard from New York Times v. Sullivan (1964) remains the law. In March 2025 the Supreme Court declined, without noted dissent, to hear Steve Wynn's petition asking it to reconsider Sullivan, although Justices Thomas and Gorsuch have previously questioned the precedent. Ruby Freeman and Shaye Moss reached a settlement with Rudy Giuliani in January 2025 after winning a jury verdict of about $148 million. In E. Jean Carroll's cases, the Supreme Court declined in June 2026 to hear Donald Trump's appeal of the $5 million verdict; the Second Circuit upheld the $83.3 million judgment, and Trump asked the Supreme Court to review it in July 2026. Supporters of the actual malice rule say it protects robust debate about public officials; critics argue it makes falsehoods about public figures too hard to remedy.
