Today the Knight Institute is publishing the first of four sets of essays presented at our “Lies, Free Speech, and the Law” symposium held at Columbia Law School in April 2022. This symposium, the culmination of a year-long project on lies and the law spearheaded by our 2021-22 Senior Visiting Research Scholar Genevieve Lakier, explored how the law regulates, or should regulate, false and misleading speech.
The four essays just published, by the legal scholars Helen Norton, Deborah Pearlstein, Mark Tushnet, and Eugene Volokh, focus on doctrinal and definitional questions about the regulation of lies in public discourse: What is the First Amendment status of false speech? What rules do or should apply to different kinds of false speech, like intentional lies, mistaken statements, or opinions based on falsehoods? What justifications exist for those rules? These are critically important questions to answer because the First Amendment provides the primary constraint on the government’s power to punish speakers who deceive.
In this post, I summarize some of the authors’ arguments and highlight ways in which their essays connect with one another. I hope my summary will spur you to read the essays themselves. The essays are insightful and rich, and they address questions that are at the center of many public debates today.
How Current Law Regulates Lies
To begin, the authors review the kinds of lies that courts have found may be regulated or punished without violating the First Amendment. Volokh notes, for example, that the Supreme Court has found it permissible to punish “defamation, perjury, fraudulent attempts to get money, speech actionable under the false light tort, and lies that inflict severe emotional distress.” Further, lower courts “have generally allowed liability or punishment for lies about others’ products or property,” as well as lies to government officials, lies about one’s professional credentials (including lies by political candidates), and lies about political endorsements.
Pearlstein notes that, even within the category of lies that has been at the center of political debate over the last six years—lies about whether elections are secure, whether all votes are counted, whether the game is rigged—there are already a number of legal mechanisms available to combat these lies, and many of them are currently in use. For example, Robert Mueller headed a formal government investigation into, among other things, online disinformation campaigns targeting particular voters. Several foreign nationals have been charged with criminal conspiracy to defraud the United States. Dominion Voting Systems is pursuing defamation cases against several Trump campaign representatives as well as several media organizations. These initiatives either already fit squarely within exceptions to the First Amendment’s protections, or have been carried out without raising significant public outcry about curtailing free speech.
Despite all of this, there is widespread concern that lies repeated by some of the most prominent political actors and media outlets in the country threaten the integrity of our democratic system, and that the First Amendment is preventing regulators from doing something about it. The essays tackle the question of whether the First Amendment is in fact an obstacle to broader regulation of false speech—and, if it is, whether it should be.
The First Amendment Status of Lies
The fear that government actors will use laws against lies to target their political enemies and advance their own interests motivates much of the existing First Amendment case law about false political speech. These concerns are well-founded, as all of the authors acknowledge. Norton’s essay situates them within the “negative theory” that underpins most current conceptions of the First Amendment—the theory that “the Constitution protects speech not so much because it is so valuable, but instead because the government is so dangerous in its capacity to abuse its regulatory power.”
Norton argues, though, that the reasoning behind the negative theory does not apply with equal force in all contexts. Specifically, she argues that negative theory should “pack less power in settings where the government’s discretion is limited, where we don’t see evidence of its self-interest or incompetence, or where listeners can’t protect themselves from powerful private speakers such that we distrust nongovernmental parties even more than the government.” One such setting, which Norton notes the Court has already signaled its comfort with regulating, is “lies that seek to change—or are predictably capable of changing—the target’s course of conduct to the liar’s advantage.”
Similarly, Tushnet argues that while free speech principles preclude the regulation of falsity in the context of epistemic disagreement—that is, disagreement about which sources of knowledge are reliable—we should be open to regulations of false speech in some other contexts. In his view, though, almost all political disagreements involve epistemic disagreement.
Pearlstein focuses on the kinds of harms that might justify the regulation of false or misleading speech. She makes the case that the Court has already implicitly recognized what she calls “structural democracy harms” in a series of opinions that “make plain that the First Amendment tolerates a range of regulatory safeguards to shield against specific structural harms to democratic governance, from protecting the functional operation of government institutions, to preserving the integrity of elections, to maintaining some meaningful ‘marketplace of ideas.’” Pearlstein recalls Alexander Meiklejohn’s view that the First Amendment is meant principally to serve self-government, and she characterizes structural democracy harms as harms that threaten to destroy the conditions necessary for self-governance.
All of the authors acknowledge that clarifying the First Amendment status of lies is only a first step, and that questions of administrability and institutions may ultimately be more important than questions of theory. The gravity of the problem—that some of the most powerful political actors in the country are actively undermining faith in the electoral process—here collides with the reality that any law we create or attempt to use to combat this problem would be enforced by real people, with their own political beliefs and motives.
Other Institutions as Arbiters of Lies
Tushnet and Volokh both engage with the question of administrability. After identifying the subset of lies that he thinks could be constitutionally regulated, Tushnet considers who or what institution would be in charge of deciding when someone has told this kind of lie: Legislatures? Administrative agencies? Ultimate fact-finders, like judges and juries? In his view, there are no good choices here—a point with which Volokh agrees, arguing that in the political context, the traditional remedy of counterspeech is “the least bad of a bad set of options.”
Volokh offers a different lens through which to decide when we might want to allow regulation of false speech: Considering the availability of “alternative truth-finding institutions” outside of the legal system, and “the advantages of relying on those [instead of the law] in certain situations.” In the stolen valor case, United States v. Alvarez, the Court viewed “false statements about philosophy, religion, history, the social sciences, the arts, and the like” as constitutionally protected. This makes sense, Volokh suggests, because “there is an institutional academic system with the ability and the incentive to deal with these questions.” Similarly, “disputes about what is actually happening in a war, or whether there was fraud in an election, … might likewise need an ongoing, iterative process like the scientific process. Here too, any consensus might only be credible to the extent that it withstands ongoing attempts at refutation.” And our system has numerous parties who regularly participate in these iterative processes: The press, political activists, and government agencies, to name a few.
Of course, we live in an era of plummeting levels of trust in most of the above-named parties, and none of them can be expected to uphold a flawless consensus around truth. But as Volokh (in agreement with Tushnet) notes, “the institution of legal decision-making about the truth or falsity of a claim is not guaranteed to be reliable, either.” Put another way, if the combined efforts of the press, political activists, and government agencies have not succeeded in combating false information about election fraud, why should we think the courts will do better?
The Means-Ends Dilemma
Pearlstein’s essay, in addition to acknowledging these difficult questions of administrability, confronts another thorny dilemma: How to demonstrate that a proposed regulation of speech is “actually necessary” to cure or mitigate the harm at issue, and is sufficiently tailored to that end. Reviewing the Court’s First Amendment decisions, she notes that “the Court has never particularly settled what it believes is required to demonstrate “necessity” in the speech context—what kind of evidence one might successfully marshal to do it, or how close the demonstrated causal relationship between ends and means must be.”
While this may be a reflection of the Court’s justified discomfort in acting as an arbiter of truth, Pearlstein is unsatisfied: “Questions requiring state actors to assess empirical reality of one kind or another are chronically before the Court and indeed arise in a host of settings across all branches of U.S. government, every day,” and we have a number of existing mechanisms for curtailing the government’s discretion when making these assessments. Failing to acknowledge or develop more meaningful guidelines in the First Amendment area “serves neither the interests of free expression nor the interests of constitutional democracy.”
Norton takes up a similar theme, arguing that in some decisions, the Court appears to overlook or dismiss evidence of speech harms if they are inconvenient to its analysis. Norton notes, for example, that Justice Breyer’s concurring opinion in Alvarez, “was quick to dismiss the capacity of lies in family settings to cause harm. But as documented in detail by legal scholar Jill Elaine Hasday, lies in intimate environments can and do inflict serious physical, financial, and dignitary harms and influence their targets’ course of conduct to the liar’s advantage in a variety of ways.”
Of course, strong empirical evidence does not always exist to support or refute a particular point at issue in law, but Pearlstein and Norton argue that courts must do a better job of engaging with such evidence where it is available, and doing so in a way that makes their reasoning more transparent. So too could legal scholars benefit from more exposure to the empirical work being done on these questions by social and political scientists. The conversation about what speech regulations the Constitution permits requires more serious engagement with what we know (and what we do not) about “how the information environment the Constitution sustains actually works.”
Some Alternatives in the Next Set of Essays
These papers invite the question: To what extent is the problem of lies a problem that should be dealt with through law at all? Later this fall we’ll publish the next set of papers from this symposium by RonNell Andersen Jones and Sonja West, Sam Lebovic, and John Witt. Those authors offer some alternative—and fundamentally political—approaches to addressing the pathologies of our information ecosystem. They also take a closer look at how the decline of public faith in our institutions is affecting the protections granted to those institutions.
What the Norton, Pearlstein, Tushnet, and Volokh essays make clear is that, at least when it comes to the constitutional framework governing the regulation of lies, much remains unsettled and unclear. This means that, if we are looking to the law to remedy the problem of false speech in politics, many questions remain to be answered about why and how and where.
Katy Glenn Bass is the Knight Institute’s research director.