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Free Speech

Michigan Legislators Seek to Require Registration, Bonding of Fact Checkers


That's in Michigan House Bill No. 4813, introduced by Reps. Maddock, Outman, Eisen, Roth, Martin, Griffin, Bezotte, Damoose and Carra:

Sec. 3(a) "Fact checker" means a person that meets all of the following:
(i) Is paid or compensated by an organization affiliated with a national or international fact-checking organization or network that holds itself out as a fact-checking organization or network.
(ii) Is a member of the International Fact Check Network.
(iii) Publishes material physically or digitally in this state.
(iv) Holds itself out to the public as a fact checker.

Sec. 5. A fact checker shall register with the secretary of state.

Sec. 7. At the time of registration, a registrant shall file with the secretary of state proof of a fidelity bond in the amount of no less than $1,000,000.00.

No, the government can't require people who engage in speech with a specific sort of content (fact-checking) or who belong to a specific organization of writers (the International Fact-Checking Network) to register and provide a bond before speaking—just as the government can't require people who engage in speech with a specific sort of content to pay extra money for police protection (see Forsyth County v. Nationalist Movement (1992)). Content-neutral requirements for demonstrations on public streets at parks, with insurance aimed at dealing with potential harms unrelated to content (e.g., physical injury and property damage), may be constitutional. But not content-based requirements such as the Michigan one, which are clearly aimed at supposed harms stemming from the content of the speech.

If people really think that fact-checkers are outright libeling them, they can sue, just as they can sue whenever any other speakers (non-fact-checker journalists or non-journalists) libel them. It's true that sometimes the defendants won't have the money to pay (though ones that write for money and belong to established organizations often do have insurance). But that isn't an adequate reason to require people to register and pay for a bond before speaking on certain topics.

Thanks to my colleague Prof. John Villasenor for the pointer; see this Detroit News article (Beth LeBlanc & Craig Mauger) for more.