The First Amendment and the Dissemination of Socially Worthless Untruths

Abstract

In contrast to other countries, in the United States the nearly absolute protection of political speech under the First Amendment prevents the government from imposing similar punishments on Holocaust deniers. Recognizing the fact that First Amendment doctrine leads to this result is uncontroversial; discerning the reason why the First Amendment doctrine leads to this result is much more problematic. The problem is that the usual explanations for why the First Amendment protects the expression of radical ideas do not easily explain why the First Amendment should protect the public assertion of facts that are both socially worthless (or worse - socially harmful) and demonstrably untrue. I will suggest in this Article that the source of this problem is our persistent reliance on an individual-rights conception of the First Amendment. I will also suggest that it is easier to explain the First Amendment’s protection of speakers who disseminate socially worthless untruths with an appeal to the structural function of the First Amendment within a broader concept of constitutional democracy. Under this conception, the First Amendment is not, in the end, primarily about protecting the individual’s right to speak; rather, the First Amendment is primarily about constraining the collective authority of temporary political majorities to exercise their power by determining for everyone what is true and false, as well as what is right and wrong.