Deliberative Democracy, Deliberate Lies, & Diversionary Tactics

There is an innocence in lying which is the sign of good faith in a cause.
- Friedrich Nietzsche, Beyond Good and Evil ¹⁰³

[F]or a long time I have not said what I believed, nor do I ever believe what I say,
and if indeed sometimes I do happen to tell the truth, I hide it among so many lies that it is hard to find.
- Niccolo Machiavelli, Letters of Machiavelli ¹⁰⁴

Does it matter whether the Shroud of Turin is fake? Perhaps as an article of faith­­a First Amendment Free Exercise matter­­it is of no moment whether the Cloth of Christ is real. After all, this is the realm of religious belief. But should the same principle hold true when crossing the divide to the free speech guaranty of the First Amendment? Is there room in that realm for a deliberate lie?

Strange as it may seem, this question of lying may be necessary to many free speech theories­­theories that cannot easily be reconciled with our popular culture. In fact, the need for a deliberate lie may well be key to any notion of a First Amendment premised on deliberative democracy. Cass Sunstein, for example, emphasizes the significance of the "civilizing force of hypocrisy" ¹⁰⁵ and exonerates it by claiming that "at least we can say that in a system of public deliberation, everyone must speak as if he were virtuous even if he is not in fact." ¹⁰⁶ Such hypocrisy, the reader is assured, " 'is the tribute that vice pays to virtue.' " ¹⁰⁷ The animating hope is that the lie "might even bring about a transformation in preferences and values, simply by making venal or self­regarding justifications seem off­limits." ¹⁰⁸

The political genius of the "noble lie" traces back to Book III of Plato's Republic. There, Plato assumes that a "good city is not possible ... without a fundamental falsehood; it cannot exist in the element of truth." ¹⁰⁹ The disturbing fact is that "the character of men's desires would make it impossible for a rational teaching to be the public teaching." ¹¹⁰ If even some of the same holds true for a First Amendment lie, then Madisonian deliberative democracy takes on new meaning.

That deliberative democracy animates the modern First Amendment culture is a lie precisely because today's society tends ever more toward the pornographic state. As that state is dedicated primarily to self­ gratification, virtually everything in it wars against the First Amendment norm of reason in the service of the common good. It is a state moved more by the Bacchanalian than the Apollonian, more by collective apathy than civic participation, more by commerce than communication, and more by private intercourse than public discourse. The pornographic state turns the Madisonian deliberative utopia into a debauched dystopia.