Citizens United gave speech to power. It never gave truth to anyone.
Why isn't our Body Politic just as important?
Isn't it MORE important?
The United States has no such law. It cannot have one, according to the current Supreme Court's reading of the First Amendment. Political speech is the most protected category of expression under American constitutional doctrine, and the Court has repeatedly signaled that the government has almost no power to regulate it based on its truth or falsity. We are, by law, a country where you may lie about your political opponents without limit, so long as the lie does not meet the high bar of defamation, which requires proof of actual malice and damages that are notoriously difficult to establish for public figures.
This was always a flaw in the American system. But it was a manageable flaw, held in check by practical barriers: journalism, peer accountability, the sheer logistics of mass communication. Then came Citizens United v. Federal Election Commission, decided in 2010 by a five-to-four Supreme Court majority, and the flaw became a wound. A wound that has not stopped bleeding since.
The Logic That Ate Itself
Citizens United rests on a foundational claim: that corporations are persons under the First Amendment, and that political spending is a form of speech, and therefore that limiting how much a corporation can spend on political messaging is an unconstitutional restriction on free expression. Justice Anthony Kennedy wrote the majority opinion. He argued that the government had no business deciding which speakers were worthy of constitutional protection and which were not. To restrict corporate speech, he said, was to create a two-tiered system in which some voices could be silenced by the state.
This reasoning has a seductive internal logic. If you accept the premise that corporations are persons with speech rights, the rest follows. The problem is the premise itself, and the downstream contradiction it creates that nobody in the majority seemed to notice, or chose to acknowledge.
If corporations are people, and corporations compose the body politic through their spending and messaging and political participation, then the body politic is people. Not metaphorically. Legally. Structurally. The architecture of democratic participation that Citizens United helped to build is one in which artificial legal entities, backed by concentrations of wealth that no actual human being commands, flood the political commons with messaging that is subject to no truth standard whatsoever.
The body politic, understood as the aggregate of citizens who form a political community and participate in its governance, has now been reconstituted to include entities that cannot vote, cannot serve, cannot be imprisoned, cannot die, and have no direct stake in the outcome of the society their money shapes. And those entities speak into that political commons with the full protection of the First Amendment, spreading whatever messages serve their financial interests, true or false, fair or fabricated.
The UK looked at this problem and said: lies about candidates are an affront to the democratic process. We criminalize them because the body politic, which is made of actual people with actual lives, deserves to make decisions based on something approaching reality.
The United States, post-Citizens United, has said the opposite, functionally if not explicitly: the body politic is open to all comers, including artificial persons with unlimited resources, and we will not discriminate based on the truthfulness of their messages. The marketplace of ideas will sort it out.
The marketplace of ideas has not sorted it out. It has instead been cornered by the best-funded vendors, who have discovered that lies are cheaper to produce than truths, faster to spread than corrections, and significantly more effective at generating the emotional states that drive political behavior.
The Affront Against the Body Politic
The British legal tradition's language is worth sitting with. Section 106 frames false statements about candidates as an affront against the body politic. Not merely as a harm to the individual candidate, which defamation law would address. As an affront against the collective process of democratic governance. Against the body politic as such.
This is a meaningful distinction. When you lie about a candidate's personal character during an election, you are not merely injuring that person. You are corrupting the information environment in which citizens make decisions. You are polluting the commons. You are committing what amounts to a fraud against the electorate, who are entitled to make their choices based on something resembling reality.
American law does not recognize this category of harm. We have libel and slander, which protect individuals. We have fraud statutes, which protect commercial relationships. We have perjury laws, which protect judicial proceedings. But we have no legal mechanism that says: lying to voters about their candidates is an offense against democracy itself.
Citizens United made this absence catastrophic by removing the practical constraints that had kept it from fully metastasizing. Before 2010, the money that could be spent on political messaging was limited. Political organizations had to identify themselves. Coordination rules created at least some friction between wealthy donors and campaign messaging. None of this was a truth requirement. But it slowed the machine.
After Citizens United, dark money flowed into super PACs. The infrastructure of political lying scaled. A single donor or a single industry could now fund a campaign of disinformation at a level that no opposing voice, however well-funded by normal human standards, could match. The asymmetry between a lie and its correction, which was always present, became overwhelming. A lie can be produced for the cost of a press release. A correction requires research, verification, dissemination, and an audience already disposed to receive it. At scale, with unlimited money behind the lie and none guaranteed for the correction, the lie wins most of the time.
Prescience and Its Discontents
Justice John Paul Stevens wrote a dissent in Citizens United that has aged with uncomfortable precision. He argued that the Court's ruling would damage the integrity of elected institutions. He argued that corporations are not members of the political community in any meaningful sense. He argued that the identity of the speaker is relevant to the government's interest in preventing corruption and the appearance of corruption.
He was not listened to. He was in the minority.
Justice Stevens was talking about corruption in the financial-influence sense, the familiar concern that money in politics buys favorable policy outcomes. This is real and it is serious. But there is a second form of corruption that the Citizens United framework enabled and that the majority did not adequately weigh: the corruption of the information environment itself.
When unlimited money can be spent on political messaging with no truth requirement attached, the information environment becomes systematically corrupted. Not by any single act of lying, but by the structural incentive that unlimited money creates for producing and amplifying lies that serve the funder's interests. The marketplace of ideas fails not because people are stupid but because the market has been cornered. A monopoly on information is not less dangerous to democracy than a monopoly on voting.
We have built, through a combination of constitutional doctrine and corporate law and the economics of digital media, a system in which the most powerful speakers in the political commons are entities with no democratic accountability, no obligation to truth, and no limit on spending. We call this freedom of speech. The British, with their quaint little criminal statute about lying to voters, might call it something else.
The Flaw That Was Always There
It would be too easy to lay all of this at the feet of Citizens United. The decision accelerated and amplified a problem that was baked into the American approach to political speech from the beginning. The First Amendment's resistance to government regulation of political content has always meant that the United States would not build the kind of legal infrastructure around political truth that other democracies have. The trade-off was made. The idea was that free speech would be self-correcting, that the truth would win in open competition, that democracy would be resilient enough to absorb even vigorous disinformation.
That was not an insane bet to make in 1791, or even in 1950. The information environment was slow enough, local enough, and expensive enough to produce and distribute that the self-correcting mechanisms had time to operate. There were fewer actors, with lower reach, who could spread political lies. The town square had a manageable size. The body politic could, more or less, sort things out.
The digital information environment, post-Citizens United, is not a town square. It is a planetary-scale amplification system with no editorial standards, governed by engagement algorithms that systematically reward the emotionally inflammatory over the factually accurate, accessible to anyone with money and a message, including artificial legal persons with unlimited resources and no stake in the society they are shaping.
The flaw was always there. We chose not to close it because we valued something else: the principle that government should not be in the business of deciding what is true in political discourse. That principle is not without merit. Governments lie too. Governments abuse truth ministries. The instinct to keep the state out of the business of political epistemology has a real history behind it.
But the instinct has produced a structure that, under current conditions, advantages exactly the actors who are most willing to lie and most able to fund the amplification of those lies. The self-correcting market we hoped for has not materialized. What has materialized is a machine for the industrial production of political unreality, protected by the same constitutional guarantees that were meant to keep citizens free.
What Accountability Looks Like, and What It Would Require
The UK model is not a perfect solution. Section 106 applies to false statements about candidates' personal character, not to false statements about policy, or about history, or about the imagined consequences of the opponent's governance. It is limited in scope and has its own ambiguities. Prosecutions under it are relatively rare. It is not a truth machine. It is a specific, bounded legal acknowledgment that certain kinds of political lying are offenses against the democratic process.
What would it require to build something comparable in the United States? At minimum, it would require a different constitutional jurisprudence, one willing to recognize that political communities have a legitimate interest in the factual integrity of electoral discourse. It would require the Court to acknowledge that the body politic, which Citizens United has now constitutionally reconstituted to include artificial persons, is composed at its core of actual human beings who are materially harmed when the information environment in which they make decisions is systematically corrupted.
It would also require a political will that is currently absent, because the actors who benefit most from the current system are the ones most likely to block any attempt to change it. Unlimited money in politics buys, among other things, the political influence to keep unlimited money in politics.
But the contradiction sits there, regardless of whether anyone has the will to resolve it. If corporations are people under the First Amendment, and if those corporate persons now constitute a significant part of the body politic's voice, then the body politic is, legally speaking, people. And the body politic deserves what actual democratic theory has always said it deserves: a political commons in which factual accountability is not optional.
Citizens United gave speech to power. It gave amplification to money. It never gave truth to anyone. And a democracy that cannot distinguish, legally or structurally, between its citizens and its corporations, between speech and disinformation, between political argument and political fraud, is a democracy in the process of hollowing itself out from the inside.
The British have a word for what happens when you lie about a candidate to voters. They call it an offense. We have a word for it too. We call it protected speech. The difference between those two answers is the difference between a democracy that believes it has something worth protecting and one that has decided the protection itself is too dangerous to attempt.
We chose the latter. We are living with the results.
Cheers! Sláinte! Na zdravie!
JZ Murdock is a retired Senior Technical Writer/IT administrator, and an active award-winning author/ filmmaker, documentarian, and writer based in Bremerton, Washington.
He publishes commentary on the state of things at murdockinations.com and on his creative works over at Substack. He also posts on Slasher.com on the horror genre.
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