Journal of Free Speech Law: "Lies and the Law and Introduction," by Prof. Genevieve Lakier

The final article posted from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the opening paragraphs:

We live in an era of profound anxiety about the threat that lies, and false speech more generally, pose to American democracy. It's not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. Meanwhile, blatant lies, hyperbolic rhetoric, and misleading claims about important issues of public controversy—critical race theory and its use in public elementary schools, the risk of COVID-19, the reliability of the 2020 election results—saturate many reaches of the mass and social media and motivate, or at least justify, all manner of both elite and popular political mobilization.

The obvious political potency of these kinds of lies raises many questions about what kind of society we live in, and about our political past and future. But it also raises deep questions for and about free speech law—perhaps the most fundamental being whether the First Amendment, as it is currently understood, enables or impedes the collective pursuit of something we might call "truth." I spent the 2021–2022 academic year at the Knight First Amendment Institute at Columbia University, exploring these questions through a series of roundtable discussions culminating in a major symposium in April 2022 on "Lies, Free Speech, and the Law."

A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) "the best test of truth is the power of the thought to get itself accepted in the competition of the market." But as contemporary experience makes quite clear, this assumption is not always true—or, at least, may not be true on a time horizon that prevents society from incurring significant costs—especially if we equate the market, as First Amendment law tends to do, with the hurly burly public marketplace of ideas. There are many reasons why an idea might win out over its competitors on the television screen, in the newspaper, or at the water cooler, other than because it accords better with empirical reality. It might reinforce its audience's assumptions about the world and therefore be easier to embrace than more disruptive alternatives. It might be promoted by an institution or person that is widely viewed as trustworthy. It might be repeated so frequently it becomes one of the taken-for-granted background assumptions of our lives. Or it might give its audience permission to do what they really want to do. The love of truth is not the only motivation that leads listeners to embrace or reject ideas. The result is that there is no reason to think that the fact that an idea wins in the public marketplace of ideas means it must be true, or is likelier to be true, than an idea that fails to win adherents.

And yet, First Amendment law makes it quite difficult (although, as I discuss below, not impossible) for the government to exclude from public discourse assertions about the world that are patently false—that do not, in other words, come anywhere close to satisfying the criteria that have traditionally been used to distinguish truth from falsity. This is not necessarily a doctrinal error, and it is not simply a consequence of courts' embrace of the arguably false Holmesian dictate from Abrams. It is also, and to a much greater extent, a consequence of judicial fears that, were the government granted the power to punish false speech, the dynamics of political competition and the vulnerability of government officials to the same cognitive biases that affect how you and I receive information would make that power susceptible to abuse, and thereby result in a public sphere even more saturated with untruths than the one we live in today. In the wake of the Trump presidency, these fears appear very well-justified. Certainly, the fact that one of President Trump's favorite means of deflecting attention away from his own lies and failures was by accusing his enemies of indulging in "fake news" suggests how powerful a political weapon false allegations of falsity can be. The result, nevertheless, is a body of law that, notwithstanding its frequent invocation of the importance of safeguarding the search for truth, often leaves "truth" vulnerable to the manipulation of media moguls, party bosses, and charismatic speakers.

The strictures the First Amendment imposes on the government's power to punish lies did not always appear as much of a problem for the enlightenment ideals of the First Amendment as they do today. This is because, until relatively recently, other mechanisms of disciplining the undisciplined truth-sorting processes of the public marketplace appeared sufficient (at least to those in power) to ensure that that its participants were not fundamentally deluded about the basic facts of their political reality. The press, first and foremost, but also the scientific establishment, the universities, professional organizations—all of these "knowledge institutions"—helped determine whose voice got amplified, what ideas ought to be believed, and what modes of knowledge production were considered legitimate. This gatekeeping was, obviously, not without cost. Professional gatekeeping may have kept many valuable ideas out of wide public circulation. But one of its effects was to limit public contestation over what is true and false, and to place sometimes significant pressure on members of the political, economic, and social elite to obey basic norms of truthfulness when they spoke in public, or to their clients and constituents. To put it in other terms, the older system helped create what Michel Foucault called a "regime of truth" in which there was widespread agreement about what facts were true—even if, in retrospect, we might think some of that agreement was wrong.

Over the past few years, however, the ability of these institutions to decide what counts as a true claim has lessened, due to a variety of familiar changes: first the rise of social media, and the democratization it has enabled of the public sphere; second, the decline in elite authority that this democratization and political polarization have accompanied; and third, but closely connected to this, the emergence of a strongly populist, anti-technocratic strain of democratic politics. The decline in the power and influence of the old institutions of truthfulness that has resulted from these changes, as well as their increasing politicization from within, help explain the recent wave of public anxiety about the political problem of lies. It has also motivated politicians, judges, scholars, and others to argue that the government should play more of a role in delimiting what is true or false than it has done in the past, now that the other institutions of truth-delimitation no longer work as well as they once did. The fruit of these arguments are laws like the one California recently enacted, which intrudes upon the otherwise autonomous practices of medical professional associations to mandate discipline for doctors who spread information about COVID-19 vaccinations and treatments that contradicts the "scientific consensus."

Laws like the California COVID misinformation law—and similar efforts by state governments and professional organizations to crack down on false speech—suggest that it is high time to re-examine both the constitutional and subconstitutional legal regimes that either directly or indirectly govern the regulation of false speech in the United States, to better understand what lawmakers should and should not do in response to the current "crisis of truth." More specifically, they raise anew two questions that for many years were left on the backburner of First Amendment law and scholarship because they were assumed to be largely solved or uninteresting.

First, exactly how broad is the government's power to punish false and misleading speech under the First Amendment, and how broad should it be? It has long been clear that, notwithstanding the fear of abuse that pervades the false speech cases, the First Amendment does not entirely deny the government the ability to restrict false speech. To the contrary: In certain areas of the law, the First Amendment has been interpreted to permit the government quite broad power to punish speech in part because it is untruthful. For example, in libel cases, plaintiffs may not recover for defamatory statements made about them that are true, but they can recover for defamation that they can show to be false, so long as they can also show that the falsehood was made recklessly or negligently. Similarly, the commercial speech cases grant agencies like the Federal Trade Commission significant power to restrict commercial advertising that is false or misleading to consumers—indeed false or misleading commercial speech is understood to be categorically outside the scope of First Amendment protection. In other areas of the law, however, the extent of the government's power to punish false speech is much less clear. The Court's last word on the subject—its 2012 plurality opinion in Alvarez v. United States—establishes that the government may restrict false speech when it threatens a "legally cognizable harm" but does not do much to spell out what kinds of harms are legally cognizable. The recent crisis of truth is putting pressure on judges and scholars to figure this out. And even with respect to doctrines that we thought were clearly established—such as the law of libel—the recent crisis of truth is pushing some to rethink the existing rules because they believe that the existing rules overvalue the risk of government abuse when compared to the risk of doing nothing in the face of the "proliferation of falsehoods."

Second, what else can the government do, consistent with the First Amendment, to ensure that authorities, like doctors, communicate true information to those that trust them, like their patients, and that (politically) attractive but false ideas do not win over difficult but true ones in the public competition of ideas? Given the risk of abuse and the value that lies can sometimes have, it seems clear—whatever you think about a law like the one California just enacted—that bans represent at best a very partial solution to the problem of false information. So what other changes might government institutions make to promote truth and to shore up the power of the old gatekeepers or, alternatively, create new ones? Are there things, in other words, the law can do to promote a public discourse in which there is truth and not just opinion?

These are the questions explored in the provocative, rich, and varied essays and blogposts that were written as part of the Lies and the Law project I was privileged enough to spearhead for the Knight Institute. Scholars from many disciplines contributed to the project. Their reflections differ greatly in style, methodologies, and conclusions. Indeed, although contributors all draw from largely the same body of First Amendment cases, they reach very different conclusions about what constraints the First Amendment imposes when it comes to the regulation of false speech. They therefore demonstrate what has always been true of the First Amendment but may be particularly true today: namely, that despite, or perhaps because of, the importance of invocations of freedom of speech to all kinds of political debates, what it means to guarantee freedom of speech in the United States today remains a deeply contested question. This isn't to say that there are no points of agreement among contributors to the project. Collectively, the essays and blogposts illuminate three important themes.