The Volokh Conspiracy
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Journal of Free Speech Law: "Democracy Harms and the First Amendment," by Prof. Deborah Pearlstein
The eighth of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.
The article is here; the Introduction:
As partisan polarization and social violence have risen in recent years, and public faith in governing institutions has declined, scholars across a remarkable range of academic disciplines have embraced concerns that one or more features of our current information ecosystem is functioning to widen cracks in core structures of U.S. constitutional democracy. The causes for concern are not hard to see. Social media and other online communications platforms have featured centrally in repeated, high-profile attacks on democratic processes directly—from the Russian disinformation campaign aimed at influencing the presidential election of 2016, to the organization of the physical invasion of Congress based on false claims of election fraud in 2021. At the same time, partisan cable media preferences, the algorithmic influence of online platforms, and longstanding professional conventions of traditional media have amplified the spread of false information or on occasion declined to circulate the truth, seeming to operate in more diffuse ways to undermine prospects for the kind of compromise or even shared perception that democratic governance requires. And indicators that the existing information environment drives, or at least reinforces, sharp partisan divisions among Americans abound. Today, more than two-thirds of Republicans (but just 3 percent of Democrats) believe that Joe Biden's election was the product of voter fraud.
Yet while these developments have given rise to profound concerns about the future of constitutional democracy—a system of government featuring not only regular popular elections but also independent political and judicial authorities, respect for the rule of law, a free press, and at least baseline protections for individual freedom and civic equality—debate over how we might remedy the current state of affairs in the United States has been hamstrung by the persistence of two enduring fictions surrounding how our Constitution protects the freedom of speech.
The first is the expectation that the harms caused by most any problematic speech can best be corrected by, as Justice Brandeis famously put it, "more speech." If the goal is correcting false perceptions of reality or misguided beliefs, the theory goes, natural competition in the "marketplace of ideas" best ensures that truth will out. But as a growing number of scholars, and at least two Supreme Court justices have lately noted, reasons abound to believe that expectation has become "obsolete." Confronted with a choice among effectively infinite sources of information, Americans' behavior has reflected long-recognized cognitive habits like confirmation bias and conformity bias, which lead us to seek out information sources that are shared by our own identity groups and that confirm our existing views. Worse, empirical studies have demonstrated that corrections of misinformation do not invariably lead listeners to abandon reliance on misinformation heard in the first instance; Indeed, because corrections are filtered through listeners' pre-existing beliefs and allegiances, they can have the effect of further entrenching listeners' commitment to the original, mistaken belief. In the meantime, organized disinformation campaigns—by states and private actors, foreign and domestic—have proven highly effective in leveraging various contemporary communications tools not just to amplify falsehoods but to flood the "market" with contradictory information, raising concerns that the predominant effect is that listeners simply tune out.
A second fiction has proven equally persistent: the belief that the First Amendment prohibits the content-based regulation of speech in all but a handful of specifically defined categories including defamation, incitement of imminent lawless action, fighting words, true threats, commercial fraud, child pornography, and obscenity. These categorical exceptions, all geared toward preventing traditionally recognized, personal, physical, or reputational harms to individuals, have played a powerful rhetorical and conceptual role for both the Court and would-be federal regulators grappling with the challenges of the current information ecosystem. As the Court insists, its jurisprudence leaves no room for the "startling and dangerous" notion that any regulation of speech is subject merely to some "free-floating … ad hoc balancing of relative social costs and benefits," or that any other categorical exception, for false speech or otherwise, exists.
Yet here too, reality shows the Court engaged in far more "free-floating" balancing than it likes to admit—whether in the growing set of decisions in which the content-based regulation of protected speech has survived its strictest (once thought unsurvivable) test of constitutional scrutiny, or in the arguably greater number of cases in which the Court has pretended (wrongly by its own terms) that a content-based rule is actually content-neutral. Add to these a rich array of established and court-supported laws—from criminal prohibitions of perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for falsehoods—and it becomes impossible to insist that the Court believes either that unrestricted speech always best promotes truth, or that the only "legally cognizable" harms for which speech may be regulated are the particular individual harms captured by the usual categorical exceptions. Taken as a group, these cases and laws 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." Formally categoryless this array of speech regulations may be, but functionally, they amount to their own categorical exception—an exception for what we might broadly call structural democracy harms. Reflected in existing doctrinal understandings in U.S. constitutional law, as well as familiar principles of First Amendment theory, and the international human rights law the United States helped shape, this body of law recognizes a proposition so well settled it commonly goes overlooked: that while freedoms of thought, opinion, or belief may never be subject to government restriction, freedom of expression can be subject to narrowly tailored regulation if it is "actually necessary" to preserve a democratic public order.
Recognizing these democracy harms as equally among the list of "legally cognizable" justifications for speech regulation has several implications. For one, it helps expose how conventional statements of First Amendment doctrine have the effect of privileging speech regulations aimed at remedying harms to individual interests alone. Regulations against defamation and true threats are certainly important. But the law's more or less arbitrary habit of relegating democracy harms to the status (at best) of undesignated other "speech integral to criminal conduct" reinforces a misguided assumption that there is little the government can permissibly do to regulate features of the information ecosystem that damage core structural concerns of constitutional democracy. Breaking free of categorical expectations opens room for reformers to think more broadly—and more critically—about solutions to our current information dysfunction. In the interest of protecting election integrity, for example, might it be constitutional to charge a domestic political organization with criminal fraud for engineering a disinformation campaign regarding vote counts or results? The existence of a democracy harms justification suggests such a prosecution might be defensible, even under existing law.
But embracing democracy harms as a "legally cognizable" justification for speech regulation answers only one of the questions courts ask in checking such an application's constitutionality. The other question is harder, and woefully underdeveloped in existing First Amendment doctrine and scholarship: whether and how one might demonstrate in any persuasive way that a particular regulation is "actually necessary" to cure or mitigate the identified harm and is adequately tailored to that end. Focus on the maintenance of existing categories as the critical safeguard against excessive federal speech regulation has obscured the Court's chronic failure to develop a consistent or meaningful understanding of the potentially far more consequential limit on government regulation of speech: the evidentiary requirement that regulators demonstrate, as the Court has on occasion put it at its most stringent, "a direct causal link between the restriction imposed and the injury to be prevented." While multiple off-the-shelf bodies of law and legal institutions offer a menu of evidentiary burdens, standards of proof, and process requirements that might provide helpful analogies to guide and constrain an adjudicator's evaluation of this question, attention to categorization of speech has made it easier for the Court to avoid applying any fixed standards—and for regulators to avoid building a record to meet them. This should change. For while First Amendment jurisprudence to date has rested heavily on a fictional account of how truth prevails in constitutional democracies, preserving an information environment capable of sustaining such a system going forward requires more serious contact with the empirical.
