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Although misinformation is detrimental to a democracy, freedom of speech — guaranteed under the First Amendment — is arguably the most quintessential of American rights. But when it comes to political speech, does that freedom allow for unfettered lying, or is there a legal line to be drawn?
Joshua Sellers, an associate professor at the Sandra Day O’Connor College of Law at Arizona State University, examined the issue in a recent essay, titled “Legislating Against Lying in Campaigns and Elections.” It was part of a symposium held earlier this year at the University of Oklahoma College of Law called “Falsehoods, Fake News and The First Amendment.”
Sellers cited a 2012 U.S. Supreme Court case, United States v. Alvarez, which focused on the constitutionality of the Stolen Valor Act, a federal law approved in 2006 that criminalized false claims of having earned a military medal. In a 6-3 ruling, the court ruled in favor of Xavier Alvarez, a California water board member who had falsely claimed to have been awarded the Congressional Medal of Honor. Although the six justices in the majority had varying rationales for their decision, they agreed that the Stolen Valor Act violated the First Amendment.
Sellers said the decision supported the conclusion that intentional lies are protected, making it extremely difficult to regulate false political speech.
“It’s hard to come up with government regulations that will survive a First Amendment challenge,” he said. “But I still thought it was useful to try to figure out, ‘Well, where is the line between the permissible and the impermissible?’”
Sellers established that line by detailing three types of lies for which he says narrowly drawn restrictions are “doctrinally defensible”:
· When foreign nationals, during a campaign or election, engage in intentionally false speech expressly advocating for or against the election of a candidate.
· When intentionally false speech is used to undermine election administration.
· When a campaign or outside political group intentionally falsifies a mandatory disclosure filing.
The second and third examples, he says, are uncontroversial.
“Intentionally lying to undermine election administration, I think most people can readily understand why it’s problematic, particularly when it comes from, let’s say, a government official,” he said. “Telling somebody the election day is Wednesday when in fact it’s Tuesday, or directing them to the wrong precinct.”
He added, “I think the same goes for the disclosure filings. The Supreme Court has been pretty libertarian in allowing money to flow everywhere, and Citizens United is the best example of that. But in doing that, it has upheld these disclosure regimes. Now, a lot of people critique the disclosure regimes and find them ineffective, but the court has offered a pretty full-throated defense of mandatory disclosure. So I don’t think it’s controversial in the slightest to say that you can’t intentionally lie on one of those disclosure forms and then say you have a First Amendment right to do so.”
And while Sellers says the example regarding foreign nationals isn’t necessarily controversial, he concedes it is more open to debate. He says a law prohibiting foreign nationals from making any contributions or expenditures in relation to an election has been challenged and upheld.
“So that, I think, provides precedent for also prohibiting intentional lies by foreign nationals if they’re knowingly lying about a particular candidate, but I think it’s controversial or debatable in the sense that there are these fundamental questions about whether we want to draw a line between citizens and foreign nationals,” he said. “And even more broadly than that, whether if we are committed to this idea of a marketplace of ideas, and we think that the best cure for flawed speech or incorrect speech is more speech, well then why would we prohibit any speech whatsoever in this context?”
In protecting free speech, the Framers of the Constitution could not have envisioned the world as it is in 2018 — a world with social media, the internet and WikiLeaks — and the ease with which such foreign nationals can disseminate misinformation from anywhere on the planet, potentially affecting America’s elections. But Sellers does not see further regulations on free speech as a viable solution.
“I think the concern about chilling valuable speech is one we should take seriously, and our First Amendment doctrine does that,” he said. “It’s hard to enforce a lot of speech regulations. A number of them contain requirements of intent or knowingness that can be difficult to prove. You don’t know if someone sincerely believes something false to be true or whether they’re trying to mislead people. So it creates an enormous enforcement burden on the government.”
With the nation bitterly divided heading into a high-stakes midterm election, record amounts of money are being spent on campaign advertising. Much of what is being said in those ads, on social media and on the campaign trail is misleading or untrue, often preying on the electorate’s deepest fears and emotions. Recent acts of violence appear to have been inspired by political rhetoric and conspiracy theories.
Sellers says it all points to how susceptible people seem to be to misinformation, and how rampantly it’s being distributed. With freedom of speech — and politicians’ right to lie — firmly protected by the First Amendment, he says Americans must become more discerning.
“I do think that we’re at a time now when these falsehoods are so widespread, and they’re coming from the top down,” Sellers said. “I mean, the president, as The Washington Post has been tracking, lies incessantly, as do many of the people around him. So I think it’s really just a substantial challenge going forward as we think about how to improve our democracy, to think of ways in which we can train people on substantive matters, policy matters, actual disputes, rather than some of these fabricated ones that I think have really caused some of these fractures that we’re dealing with right now in our politics.”