International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

EDITORIAL

 

Truth Matters

Dr. James G. Apple

 

By: James G. Apple, Editor-in-Chief, International Judicial Monitor

In the current political climate and culture in the United States, one of the most dangerous developments that occurred during the recent campaign for president, dangerous especially for the legal system on which democracy and democratic principles rest, was the wholesale abandonment of the search for truth and truth telling. In the recently concluded presidential election, and even in some lesser elections for federal and state offices, the use of “fake news” and “false facts,” became prominent techniques for degrading and disgracing opponents and promoting self without restraint. One of the new president's senior advisors adopted another term for statements put out by the President's office that were patently false: "alternative facts." That phrase and the other phrases referred to above are but euphemisms for "lies." Lying in the extreme became a popular method of electioneering and was apparently approved by too many voters.

Editions of the Washington Post newspaper regularly contain a column called “The Fact Checker,” where a journalist examines and analyses the assertions and representations made by political candidates to determine if they are true or false. If false, the author awards for each infraction a “Pinocchio” to the candidate who is found guilty of the specific act of lying or misrepresentation of the truth. Although a number of candidates in both parties were included in these surveys and received this dubious award multiple times, one party and one candidate in the recent elections were particularly egregious in the number of times that lies and falsehoods were included in their campaign speeches and political presentations and subsequently identified. Lying and the spread of falsehoods became commonplace. It no longer mattered what the political candidates said, or on what basis charges of lying were denied, if it served their political ends. Accusations of lying and denials of lying would be uttered without any attempt to justify them by reference to facts or events.

Of course asserting falsehoods, and denying claims of lying, have been in the political culture of the United States almost from its beginning, as they have been and are in the political cultures of other countries. But lying and the spreading of falsehoods in the recent political campaigns in the U.S. reached epidemic proportions in the past one and one half years. The real danger of this development is not just the effects it is having on and within American politics. The real danger is the possibility, or maybe even probability, that the rise of lying and the spread of falsehoods, their acceptance by many of those in the body politic, and the decline of truth telling and the search for truth by candidates and their followers, will spread to other parts of American society, to institutions, organizations and individuals which and who are not directly connected with the American political culture. The lack of respect for the search for truth and truth telling could very well lead to the spread of this disease, infecting America’s legal institutions and those who comprise them. Such a spread could ultimately destroy them.

The search for truth and truth telling are essential principles on which the U.S. legal system is based. The accuracy of this assertion is demonstrated by an act that occurs every day in courtrooms around the nation, in both civil and criminal trials.  That act is the swearing of witnesses in trials before they are allowed to testify. In all tribunals, from traffic courts to trial courts in localities big and small, the judge or court clerk requires a witness to respond affirmatively to the question: “Do you solemnly swear (or affirm) that the testimony you are about to give is the truth, the whole truth, and nothing but the truth.” If lying and the spread of falsehoods infects the part of the legal process where the search for justice officially begins, in the trial courts, there can be no justice, because justice ultimately depends on the search for truth and truth telling. Tolerance of lying adversely affects the chance for justice to prevail. Without justice the whole legal system fails.

In other parts of the legal process, there are actions that require truth telling: before courts, trial and appellate, by lawyers. In presentations before courts lawyers are obligated in making their arguments to tell the truth about disputed and undisputed facts, and about the status of the laws applicable to the case. Severe penalties await those who fail in this obligation. If judges and juries can no longer rely on the testimony of witnesses and the presentations of lawyers, because they are infected with or contaminated by a culture that accepts the telling of lies and the spread of falsehoods as routine, done without danger of censure, and recognized as acceptable characteristics of the legal process, then the U.S. legal system is doomed.

It is understandable why the legal process rests so much on the search for truth and truth telling. The end result of the legal process, as stated above, is supposed to be justice for the parties and for the communities of which they are a part. And justice is achieved through a devotion to truth and truth telling by judges, lawyers and witnesses, not through a culture which accepts, without the danger of censure and penalties, lying and the spread of falsehoods. Acceptance of and reliance on “fake news” and “false facts” can only lead to injustice.

When U.S. Supreme Court Justice Louis D. Brandeis was a practicing lawyer (known as the “people’s lawyer” because of the clients he represented) he approached all of the cases in which he was involved by asking and pursuing the answer to the question: What are the facts? He knew that he would not be able to achieve a just result unless he had a command of all of the facts of a case.  By using that approach to legal representation he achieved a success in his law practice not reached by many. And he was noted for the fairness with which he represented his clients and the way he attained success in his law practice. It is not hard to imagine what Justice Brandeis would have achieved as a lawyer and judge if he were contstanly faced with a supposition that the “facts” which he gathered and on which he was relying were often lies and falsehoods. For Justice Brandies, the path to justice required a culture that valued truth and the search for it in the gathering and presentation of “true facts.”

 

There is now a great need for judges and lawyers to speak out strongly for the preservation of the search for truth and truth telling in the legal process and a condemnation of lying and spreading of falsehoods so prominent now in America’s political culture and seemingly acceptable to far too many citizens. There is too much danger that the deleterious developments in U.S. political culture will spread beyond it.

When I was a beginning college student in the mid-1950s at a university that embraced a strict honor code, I was introduced to a system that provided a definition of honor for the purposes of the University – that I as a student would not lie, cheat or steal. Those were values that I had encountered unofficially in the grammar school and high school I attended, and in my family life. The honor code of the university I attended brought me face to face with concepts of honor as a code that had to be accepted and followed as a condition for admittance to the university and remaining at it.

As I grew older I would periodically reflect on the honor code of my university, and how it had affected me and how it would affect me in the future. It became a moral compass for me as I lived my life. I was particularly focused on the first of the three prescriptions in the honor code, the restraint on lying. I thought about the fact that all education, whether primary, secondary, or university, rests on the fundamental principles of truth telling, and the search of truth.

In my musings I would reflect on the reasons why the search for truth and truth telling are so important for the process of education. If teachers and professors did not have an obligation to seek and transmit truth in their teachings, and students could not rely on a belief that what they were being taught was true, and were forced to conclude that what they were being taught had a probability of being false, what would be the value of education? They could not rely on the information that was being transmitted to them as a basis for their future careers and how they would relate to the world during their lives. If student decisions about their lives and careers were based on lies and falsehoods rather than truth, then education would serve no purpose, would be of little or no value for students in preparing them for their future occupations or professions and roles in their communities.

What would happen in an educational institution that did not have the search for truth and truth telling as a framework for its existence? What would happen if a teacher or professor did not have the devotion to the search for truth and truth telling. An engineer would build bridges that would fall down because the designer did not have the correct equations to account for prospective loads. A doctor would prescribe the wrong medicine to a patient because he or she did not learn about and make the correct diagnosis of the patient’s malady. A lawyer would lose his or her case because of misinformation conveyed in a law school class. A physicist would cause an experiment for a new technology to fail because he or she did not understand the necessary mathematics. A businessman would be driven to bankruptcy because he or she was not taught the importance of proper marketing techniques. The list could go on and on – how much U.S. educational culture, and the educational culture of other countries, requires and depends on the search and dissemination of truth and truth telling.

The spread of this disease of falsifying information to other parts of U.S. society is already happening. The New York Times recently exposed the actions of a North Carolina man and recent graduate, Class of 2016, of Davidson College, an excellent small college in North Carolina. This particular young man was looking for a way to make money for living expenses after graduation. He decided in September, 2016 to prepare fake news stories that he placed on a web site that accused the Democratic nominee for president of the United States of an attempt to “rig” the election by the creation of tens of thousands of fraudulent votes that had been found in a warehouse in Ohio. This “news” story, completely false and later branded as such by Ohio election officials, was inspired by a recent speech of the Republican nominee for president. The perpetrator of this act, the young recent college graduate, stated to journalists after his authorship was discovered, that he had two emotions springing from his actions. One was some remorse about what he had done. The other was pride that he was able to pull off the fake news story gambit and receive financial rewards for having done so. He earned $22,000 with this fakery and the story was picked up by the social media and spread widely, a development that might have affected the outcome of the presidential election.

One of the tenets in the Code of Ethics for professional educators as promulgated by the Association of American Educators is “The professional educator endeavors to present facts without distortion, bias, or personal prejudice.” That is a command for truth telling, addressed to all who are involved in the teaching profession. The educational system of the United States is put in peril by the growth and acceptance of lying and spreading falsehoods in the U.S. political culture. Acceptance of such behavior in the political culture can easily be viewed as acceptable practices by students and followed by them, as demonstrated by the recent college graduate in North Carolina. Teachers have an obligation similar to that of judges and lawyers to speak out and support and defend an educational system based on the search for truth and truth telling, and condemn the growing tolerance for lying and spreading falsehoods.

Law and education are two of the shining lights of the United States for the world. The current political culture is not. Without law and education, operating in a sphere of integrity, and without being infected by purveyors of and advocates for a discourse of lies and falsehoods, America will lose something that it cannot afford to lose, a devotion to truth. That is what really makes America great. In a culture where lies and the intentional spread of falsehoods are acceptable, America can never be great again.

 
ASIl & International Judicial AcademyInternational Judicial Monitor
© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.