The First Amendment in the Age of Disinformation

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The First Amendment in the Age of Disinformation. This week, we consider the First Amendment in an era of disinformation, highlighting journalist Emily Bazelon’s extensive column recently published in the New York Times magazine.  A link follows:

https://www.nytimes.com/2020/10/13/magazine/free-speech.html

Regardless of where you stand on the political spectrum, Bazelon’s column deserves your close attention. She highlights that phrases like “fake news,” which have now infused our national conversation, are dangerously reminiscent of similar calls of “Lügenpresse” (“lying press”) which sounded during the Nazi era.  (For more on that particular rhetoric and historic verisimilitude, you can read this 2016 article from Time magazine:)

https://time.com/4544562/donald-trump-supporters-lugenpresse/

Bazelon defines “disinformation” as “falsehoods aimed at achieving a political goal” (as contrasted from “misinformation,” which “refers more generally to falsehoods”). She explains that “scholars of constitutional law” and “social scientists” are calling into question “the way we have come to think about the First Amendment’s guarantee of free speech,” suggesting that it is “inadequate” in an “age of disinformation.”

Bazelon explains that Supreme Court cases over the past generation have expanded the reach of First Amendment protections, not because of the attractiveness of the speech at issue – which is often atrocious – but because of the perceived dangers of too heavy a touch:

 Brandenburg v. Ohio, 395 U.S. 444 (1969), which struck down an Ohio law used to arrest a Ku Klux Klan leader for speaking at a rally (in Skokie, Illinois, a town with largely Jewish population, many of whom were Holocaust survivors).  Brandenburg bars the government from punishing speech unless it encourages and is directed to inciting or producing, or otherwise likely to cause “imminent lawless action.” A link to the Brandenburg opinion follows:

https://supreme.justia.com/cases/federal/us/395/444/

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which held that the First Amendment protects newspapers even when they print false statements about public figures, so long as the newspapers do not act with "actual malice."  New York Times says that errors are “inevitable in free debate,” and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need.’”  A link to the opinion follows:

https://supreme.justia.com/cases/federal/us/376/254/

United States v. Alvarez, 567 U.S. 709 (2012), struck down a portion of federal law that criminalized false statements about military honors or decorations, and held that there is First Amendment protection even for an individual’s intentional lies, at least as long as they don’t cause serious harm. A link to the Alvarez opinion follows:

https://supreme.justia.com/cases/federal/us/567/709/

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), held that political spending is a form of free speech that's protected under the First Amendment. A link to the Citizens United opinion follows:

https://supreme.justia.com/cases/federal/us/558/310/

But in recent years, disinformation – which Bazelon says “encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract” – has emerged as a formidable threat itself.   She warns that disinformation can lead to totalitarianism, citing political philosopher Hannah Arendt’s 1951 book “The Origins of Totalitarianism,” and its seminal quote: “The ideal subject of totalitarian rule is … people for whom the distinction between fact and fiction (i.e. the reality of experience) and the distinction between true and false (i.e. the standards of thought) no longer exist.” 

We agree.  Like Bazelon, we question whether the time-honored, Holmesian response countering false speech with more speech—like fact-checking—can still be effective, in a new age when the information ecosystem has become infinitely more complex; when deliberate, willful disinformation is scientifically tailored to particular individuals and their innermost “hot buttons” without their knowledge; when more and more of it is being produced every hour at an ever-increasing rate; and when we can see before us how it is affecting the very nature of our national conversation.  Maybe it could.  Maybe a return to the “fairness doctrine” which the Federal Communications Commission applied years ago, requiring broadcasters to present several points of view, would be appropriate.  It appeals to us, anyway.  But it might not be enough. 

We all accept that there should be some restraints on speech, sometimes, and under some circumstances – like when there is threat of “imminent, lawless action,” or there is malice, or where someone “cries fire in a crowded theater.” 

Might the new and recent rise of disinformation – not misinformation, which just means mistakes – but deliberate, willful disinformation going to the heart of our national conversation, be one of those circumstances which requires some new, perhaps light, certainly reasonable restraint? 

It may be so. It may well be that outlawing this kind of fraud – a fraud which is not readily susceptible to being argued down during the free exchange of ideas because it prevents the free exchange of ideas – would actually uphold the integrity of our democracy, becoming, in the words of John MacArthur Maguire, one of those “wise restraints which make [us] free.” 

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Hosch & Morris, PLLC is a Dallas-based boutique law firm dedicated to data protection, privacy, the Internet and technology. Open the Future℠.