Tervuren, Belgium—The following opinion piece is authored by Thomas K. Murphy, Ph.D., a long-time Department of Defense civilian with significant experience, having worked on several U.S. military locations overseas. Dr. Murphy is a Maryland UOCAVA voter, resident of Belgium, and member of the Democrats Abroad Global Veterans and Military Families (VMF) Caucus.

     The trademark of Trumpism could arguably be defined as the defiling of American political norms; practices that are not written into law but simply followed routinely and historically by both the victor and the loyal opposition. The use of the U.S. Attorney General as a personal legal representative, and seemingly countless other transgressions, leave many with a sense that the foundations of our system of government are not as solid as we may have thought. Violent insurgents in 2021 at the U.S. Capitol were treated as “trespassers” or “tourists,” when far more nefarious goals were clearly evident. I mention only a sample.

     Similarly, the Big Lie has been driven home. Similarly, routine lying seems to carry no consequence, no penalty, as long as it is done outside of the courtroom. 

     What does it mean when government officials lie casually to the public? Indeed, the very act of normal public political speech invariably involves subtle chicanery, a bit of hyperbole, and perhaps a little misdirection or exaggeration—normal politics. 

     This is the traditional gilding of the lily; it is basic and constitutes expected political rhetoric. 

     Intentional, systematic lying is far more sinister and conspiratorial, involving a narrative that may bear no enduring semblance to reality. Extreme examples of the manipulation of reality itself include the Khmer Rouge government of Cambodia in the 1970s, Germany’s Third Reich, and the Soviet Union under Josip Stalin. In each case, state lying was employed as a surrogate for truth.  George Orwell satirized this phenomenon in his classic analysis of totalitarianism, 1984, in which government ministries were renamed for propaganda purposes, such as the Ministry of War becoming the Ministry of Peace and the State Security Ministry becoming the Ministry of Love. 

     Which brings us to the Trump regime. We live today in our own dystopia; a country in which a sizable portion of citizens believe (or at least claim to believe) a series of blatant and “provable” lies about the 2020 election, the Democratic Party, the January 6, 2021, insurrection—of which nearly 1 in 5 rioters were veterans, and the second Trump administration.

 Are these lies untouchable legally? I am beginning to believe not. I contend that systematic, cynical, organized, and propagandistic lying may not constitute protected First Amendment speech, oddly, on the grounds of obscenity.

     Clearly, obscenity legislation, at least in my lifetime, has been devoted to issues involving sexual turpitude and perversity. But obscenity needn’t be confined to these matters. In the twentieth century, American law has addressed obscenity on issues ranging from foul and non-sexualized words to pacifism and anti-war sentiment. More recently, two Supreme Court cases, Roth (1957) and Miller (1972), tried to lay out an obscenity formula for determining what one court member famously said he could only “identify when he saw it.”

    One can trace the word “obscene” to the mid to late 16th century; there, it is described as depicting lasciviousness, to be sure. But there is also the indication that the obscene refers to a rupture of the social order through the violation of general community norms and standards. Obscenity is described as a societal poison, a cancer to the shared social order of a community.  It refers to speech that harms the social order; that which undermines the public good.

     In the late 19th century, U.S. courts relied on obscenity cases on the so-called Hicklin Rule, which stemmed from a British case in 1868. Obscenity was defined as that which “corrupts the minds of those who are open to such immoral influences.”

This interpretation was expanded upon and refined in the U.S. Supreme Court's Roth case of 1957, a split decision penned by William Brennan, which attempted to formulate a set of criteria for distinguishing obscenity from other speech. Some general guidelines were applied about the “prurient (voyeurism into the intimacy of others) interest” provoked by and the redeeming social value provided by such works. Community standards came into play, and a standard was set that cases should be settled on a case-by-case basis.

     The Miller case in 1972 provided a more established framework for determining what constituted a work of obscenity, particularly in clarifying that “community standards” could refer to local groups, rather than national ones. Second, the social value of works was held to a more specific standard of serious literary, cultural, political, artistic, or scientific merit.

      Miller set a three-part standard for the definition of obscene work: the basic guidelines for the establishment of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently-offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

     So, must obscene language be of a sexual nature? I would argue that such a view considers harmful speech too narrowly, as evidenced by two of the three criteria based on the Miller case. If obscene speech is defined as foul, vulgar, or boding ill; if it is depicted as destabilizing to the body politic or community; if it is characterized as indecent and corrupting to the mind, then why need it be constricted to the realm of the sexual? (The famous “7 words” that landed George Carlin in court on obscenity charges in the early 1970s were certainly provocative, and “dirty,” but hardly sexual in any meaningful way.) 

     Speech that advocates extant violence or violent change of government is patently dangerous and corrosive. This is the “No shouting fire in a crowded theater” interpretation by Supreme Court Justice Oliver Wendell Holmes. By the same reasoning, speech that purports intentionally to confuse the populace, that shamelessly lies in ways that cause domestic strife, conflict, and potential death, is certainly not protected speech. Language that prevents the healthy process of government is suspect; that which, over time, seeks, through foul speech, to subvert and undermine that very government with misdirection, deception, and cynicism, may well forfeit its speech freedoms.

So – why tolerate lying in a democracy?

     Steve Bannon once infamously said (and I roughly paraphrase him here) that one useful tactic of propaganda was to “overwhelm and confuse” the public by “throwing as much sh*t at the wall as possible.”

      Such a strategy has, at its base, the goal of destabilizing speech, reason and discussion – as does mirroring, a rhetorical device by which an accuser is charged with the very same activity by the accused. It constitutes classic projection onto the other: I (Trump) am not part of a crime family hiding misdeeds – you are part of a crime family (President Biden) hiding misdeeds.

     It is the political equivalent of a 4-year-old yelling, “I know you are, but what am I?” It is the utilization of our First Amendment against our First Amendment, to pervert and stymie free speech through the utilization of free speech. At some point, the law needs to take into account the cause-and-effect relationship of this strategy.

     There has been much discussion lately about how governments should combat the spread of disinformation on private platforms while respecting freedom of expression. Mark Zuckerberg of Facebook and Elon Musk of X have weighed in heavily, although sometimes inconsistently, on the issue. That discussion has focused on governments’ role as regulators when private actors spread disinformation, and on how governments can regulate that speech.

     However, little attention has been paid to the roles governments themselves play as spreaders of disinformation, and whether they may violate freedom of expression not only in the way that they regulate disinformation, but also in the manner by which they manufacture, endorse, and promulgate that information. The military-connected community has seen multiple examples of this Administration’s inappropriateness and lies over and over and over again. It’s no surprise that the president and his legal spinners are losing court cases left and right.

     Fortunately, our nation can begin to correct this ship’s course by casting a ballot in November. Indeed, the court of public opinion will almost certainly put the final nail in MAGA’s coffin and insert new lawmakers who will hold this administration accountable.

U.S. citizens living abroad, both civilian and military, are highly encouraged to check your voter registration status and request your ballot for any upcoming elections in your home voting state that you are eligible to vote in.

The Global VMF Caucus has over 1,400 members in dozens of countries and proudly consists of veterans, military family members, Department of Defense civilians, other national security professionals, and strong allies of veterans and military family causes. 

For questions pertaining to this statement, please reach out to 
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