With Fact-Checks Like These, How Does Truth Stand A Chance?

Authored by Jonathan Turley,

“You are entitled to your opinion. But you are not entitled to your own facts.”

That famous line from Sen. Daniel Patrick Moynihan (D-N.Y.) remains a virtual mantra for politicians and pundits. Yet, judging from the presidential debate between former President Donald Trump and Vice President Kamala Harris, we have officially entered the post-truth political era.

ABC News has been widely criticized for the bias of the two moderators Linsey Davis and David Muir. Even liberal outlets acknowledged that the two journalists seemed inclined to “fact check” only Trump. In the meantime, they allowed clearly false statements from Harris to go unchallenged.

Three of the unchecked claims are being widely disseminated by supporters, including some in the media. Here are three legal “facts” that are being repeated despite being clearly untrue.

“Crime is down under the Biden-Harris administration.“

One of the most notable slap downs by ABC followed Trump commenting that crime rates have drastically risen during the Biden-Harris administration. Muir immediately balked and declared: “As you know, the FBI says overall violent crime is coming down in this country.”

Harris and her allies have been repeating the claim by ABC. But the actual statistics show that Trump was right. The Justice Department’s released survey found that, under the Biden administration, there has been a significant increase in crime. Violent crime was up 37 percent from 2020 to 2023, rape is up 42 percent, robbery is up 63 percent and stranger violence is up 61 percent. Other reports had shown startling increases such as a doubling of carjackings in D.C. in 2023.

“Harris has not supported transgender operations for undocumented migrants.”

Some of the greatest mocking in the media concerned Trump’s statement that Harris has supported transgender conversion treatment for undocumented persons. New Yorker staff writer Susan Glasser immediately wrote “What the hell was he talking about? No one knows, which was, of course, exactly Harris’s point.”

On CNN, Wolf Blitzer declared how “outlandish” it was for Trump to make such a claim.

But it’s true.

In 2019, Harris told the ACLU that she not only supported such operations but actively worked for at least one such procedure to take place. When it was reported by Andrew Kaczynski on CNN, host Erin Burnett was gobsmacked by the notion of taxpayer-funded gender transition surgeries for detained migrants. “She actually supported that?” Burnett exclaimed.

Even the New York Times later admitted that the “wildest sounding attack line” from Trump was “basically true.”

Harris does not support the right to abortion in the final three months of a pregnancy.  

Trump also hit Harris on her no-limits position on abortion rights, allowing women the right to abort a baby up to the moment of birth. Trump said Harris supports laws allowing abortions in “the seventh month, the eighth month, [and] the ninth month,” to which Harris retorted: “C’mon,” “no,” and “that’s not true.”

The hosts again said that Trump was making up his criticism of late-term abortions, including the risk of babies being born but allowed to die.

But in fact, many states, including Minnesota under Gov. Tim Walz (D), protect the right of a woman to abort a baby into the ninth month. While it is often said that this is left to the mother and her doctor, the law gives the decision to the mother.

Late-term abortions are relatively rare, but they do occur. A Centers for Disease Control and Prevention report estimated in 2019 that about 4,882 abortions were performed that year at least 21 weeks or later into pregnancy.

More than a dozen states, in fact, allow on-demand abortions after a baby is viable and can even survive outside of the womb. Nine of those states permit abortions throughout the entirety of pregnancy. Harris has supported these state laws and certainly did not answer the question on what limits she would support, other than saying that she supports Roe v. Wade.

Clearly, many late-term abortions occur to protect the life of the mother. However, you can have (as both Trump and Harris support) exceptions to protect the life of the mother without allowing abortions up to the moment of birth.

To be sure, Trump did not help himself with his wilder claims.

These included debunked accounts of Haitian migrants eating people’s pets in Ohio, which Ohio’s Republican governor, Mike Dewine, has denied.

The issue is not fact-checking, but the failure to do so equally and accurately.

ABC actually disseminated false information under the mantle of fact-checking, and that’s a real problem.

Moderator Linsey Davis admitted later that ABC did not want a repeat of what had happened in the last debate, wherein Trump was given free rein and the moderators limited themselves to asking questions and enforcing time limits. CNN was praised in that debate across the political spectrum for being even-handed.

What is most striking about this election is that none of this seems to matter. Indeed, even the debate did not matter. While Trump can legitimately object to a three-against-one debate format, Harris’s victory was clearly not dependent on bad calls by the refs. However, there has been little overall movement in the polls, even though 67 million people were watching.

The era of post-truth politics is evident in Harris repeating false claims about Trump’s support for “Project 2025” and debunked claims regarding his comments about an extreme-right Charlottesville rally in 2017. Leading Democrats continue to make these false claims, in some cases despite knowing that they are false.

On the other side, Trump is making promises he has to know can never be fulfilled. For example, he has pledged to make flag-burning a federal crime with a penalty of two years’ incarceration. The Supreme Court, including conservatives like the late Justice Antonin Scalia, has ruled that flag burning is protected speech under the First Amendment. Neither a president nor Congress can change the meaning of the Constitution without amending it.

With the help of the media, we have reduced our election to a political Slurpee. It’s all sugar rush and no nutritional value. We now have pundits supporting the idea of no further debates and even arguing that Harris shouldn’t give any interviews because it’s too risky.

Rep. James Clyburn (D-S.C.) explained that Harris should avoid one-on-one media interviews because “sometimes, you drill down into a question until there’s a word that’s uttered that can be used in a negative way.” I suppose, as president, she will need to insist on meeting foreign leaders only in CNN town hall events.

If you do not say anything, there are no facts to check. The election then becomes a vote over whether you are for or against “joy.”

What is clear from the ABC debate is that citizens are on their own in the election to find actual facts and substance in the super-sized Slurpee of the 2024 election.

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Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).