Don’t Throw Out the Free Speech Baby with the False Speech Bathwater

These days, it seems like everybody has an idea for curtailing, regulating, stifling, or censoring some form of speech.

We’ve got conservative lawmakers and pundits calling for a crackdown on “obscene material,” by which they clearly mean “hardcore porn” (and we’re not just talking about the stuff that would make Ira Isaacs’ playlist), a president who has spoken on several occasions about the need to “open up the libel laws,” a hefty chunk of folks who think ‘hate speech’ falls outside the protections of the First Amendment (they’re wrong) and all sorts of people who think any time someone says something untrue or unfair about them, that makes the statement “defamatory” (they’re wrong, too).

To top it off, one of the few truly bipartisan beliefs in Washington seems to be that there’s a need to repeal or fundamentally amend the safe harbor provisions of Section 230 of the Communications Decency Act, with none other than current Democratic front runner Joe Biden being the latest politician to call for gutting one of the crucial limitations on liability that has enabled the internet to flourish.

Now, to top it off, we’ve got Elizabeth Warren and her plan to fight “digital disinformation,” which includes a series of actions she vows to take if elected president to “further address the spread of disinformation.” Among the actions Warren has pledged to take is to make a push “to create civil and criminal penalties for knowingly disseminating false information about when and how to vote in U.S. elections.”

Disinformation and online foreign interference erode our democracy, and Donald Trump has invited both. Anyone who seeks to challenge and defeat Donald Trump in the 2020 election must be fully prepared to take this on—and I've got a plan to do it. https://t.co/ZQ6B1AezBd

— Elizabeth Warren (@ewarren) January 29, 2020

“I will push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote,” Warren adds in her published plan.

To be fair to Warren, what she’s proposing isn’t what some of her most outraged critics suggest, which they depict to be a far broader ban on the posting of any disinformation online. Writing for the conservative Washington Times, Brad Polumbo says Warren “wants to criminalize the spread of information the government deems to be false.”

Polumbo’s claim is a bit of stretch, considering that Warren’s plan specifies the disinformation she wants to target is “false information about when and how to vote in U.S. elections” – but the plan may still be problematic from a First Amendment standpoint, even if so narrowed.

While I can understand Warren’s frustration with the amount of political disinformation being circulated on social media (and applaud her pledge that her own campaign will not engage in spreading such disinformation), enacting new law that bans the dissemination of such disinformation might open a bigger can of worms than it disposes of, to put a clumsy twist an old turn of phrase.

While false statements of fact are often not protected by the First Amendment (libelous and slanderous statements being a prime example of such speech), it does not follow that all false statements of fact can be criminalized. Take, for example, the Stolen Valor Act (“SVA”), which enjoyed a good deal of support from across the political spectrum, because the Act made it a federal crime to lie about having received a military decoration or medal – a sort of lie that cuts deep in its offensiveness, given the high degree of respect and admiration in which people generally hold decorated military veterans.

Even though the SVA pertained to false statements of fact, in hearing the case U.S. v. Alvarez the Supreme Court held in 6-3 plurality opinion that the law violated the First Amendment, because in defending the statute, the government failed to show it was narrowly tailored to advance a compelling government interest, something which is required under the “strict scrutiny“standard of review.

While the government identified a compelling interest the SVA advanced – namely, protecting the integrity of the system by which the country awards military honors – the court found that the SVA was not narrowly tailored to that purpose.

“The Act seeks to control and suppress all false statements on this one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain,” Justice Anthony Kennedy wrote for the court back in 2012. “Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.”

Until or unless Warren puts pen to paper and offers a more detailed bill which would criminalize the specific manner of false statement she’s targeting here, it might be difficult even for true experts in the First Amendment to predict whether the bill would survive court scrutiny – and I’m no such expert, so I couldn’t intelligently speculate even at that stage of things.

All I know is from where I sit, widespread talk of the need to suppress one form of speech or another, calls to hold social media platforms responsible (and liable) for the speech of third parties who use those platforms and other examples of enthusiastic support for the stifling of various forms of disfavored speech are all very troubling.

Here’s hoping that the portion of that talk coming out of Washington, D.C. is just more hot air from within the beltway. Presidential bluster, legislative finger wagging and political tough talk we can we handle, no problem; the prospect of fundamental change to the contours of our free speech protections is another matter altogether.