"Knight Institute Publishes First Essays from 'Lies, Free Speech, and the Law' Symposium"

Katy Glenn Bass summarizes and links to the four essays, from Helen Norton, Deborah Pearlstein, Mark Tushnet, and me:

The … essays … 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…. 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.

I found the symposium to be very interesting, and I thought some of you might, too.

Comments

[The Last American Hero]

What if the speech is made not by a person but one of Knight Industry’s sentient cars?

[Stephen Lathrop]

The authors are wise to put the focus strongly on the ongoing problem of lies about election results. If pursued and analyzed within the legal framework apparently proposed, as a purely constitutional issue, it will prove a thorny problem indeed. But perhaps there is a more useful analytical focus, which can be helpful without much disrupting customary constitutional practices. Consider this from the introduction:

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.

That almost anodyne framing takes too much for granted. If the trouble to be avoided is national damage from lies about elections, that harm does not fall in the direction of the Constitution. It falls a step higher, at the very top of American constitutionalism; it is a harm which hampers, infringes, and burdens the sovereign People’s joint capacity to exercise their power. That is what an election is—an exercise of the constitutive power, which is the defining characteristic of sovereignty itself.

Thus, voting is far more than a right; to cast a ballot is to exercise that sovereign power. An election result is not, “speech,” to be governed under the Constitution. An election result is a sovereign decree—on a par with the Constitution itself.

There is room in the law for debate about rights, about constitutional protections of rights, about the potential for one right to limit another, and for a host of other rights-related issues, which all belong properly on the plate of government, and thus inevitably make their way into the courts. That happens because to protect rights, the People used the Constitution to constrain government. In obedience to the Constitution, government must think very carefully about rights.

But government has no power of its own to make laws, or to take actions, which alter the Constitution. Government does not have to think about that at all. Everyone acknowledges that. Government is subordinate to the People, and the Constitution is their decree, constraining government.

Less obviously, the Constitution does not constrain the People’s power; it is instead their decree which they may honor, circumvent, or overturn at pleasure. And, of course, the People can require government to protect their sovereignty against rivals.

Thus, if we grant, as we should, that an election result, once certified and accepted by government, is not speech, but instead is a sovereign decree like the Constitution itself, that points a way out of worry about expressive freedom or other constitutional infringements. Government must accept the Constitution; government must accept certified election results. And for the same reason. Not because the Constitution says so, but because the sovereign People says so, and their word is incontestable law; their election results are incontestable law.

The sovereign People’s power, not the Constitution, is the basis for everything in American constitutionalism. That undeniable principle becomes salient fact when actual people exercise their power to vote, and thus decide upon whom to bestow their gift of office.

So get the Constitution out of the discussion. Recognize that it does not belong there. On that basis, consider what might be done otherwise.

Start with a corollary to the reasoning set forward above. It is this: when a candidate for office, or anyone who has sworn an oath to defend the Constitution, publicly denies a certified election result which has been accepted by government, that conduct opens a contest for sovereignty against the People themselves. To protect its sovereign from would-be rivals is the very first duty of every legitimate government. Congress must be understood to have inherent power on that basis, and under the Constitution, to do whatever is necessary and proper to suppress by law any such overt rivalry for sovereign power.

Congress could do that by passing a law, to specify an interval between the conclusion of voting, and the acceptance by government of tabulated and certified election results, during which any aggrieved party could challenge election procedures, or election activity, in court. The law would specify that after the election is thus accepted, there would be severe criminal penalties for any candidate for office, or for any person who has sworn an oath to defend the Constitution, if they deny by word or deed the validity of the election. The penalties ought to be severe. They ought to align with the notion that to contest the People’s sovereignty is in fact a crime akin to treason.

Note one crucial point. No law of that sort would apply to members of the public who were neither candidates for office, nor sworn defenders of the Constitution. The others would remain free at all times to say whatever they wanted to say about any election. But they would do it without support from government officials, and without the connivance of frustrated election losers.

In that way, the capacity to evaluate and critique every aspect of electoral politics would remain protected among the sovereign People themselves. Only their formal (and voluntary) subordinates need be constrained.