Electoral Lies and the Broader Problems of Strict Scrutiny

30 Pages Posted: 25 Aug 2020 Last revised: 4 Sep 2020

See all articles by R. George Wright

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: April 4, 2012

Abstract

States often attempt to regulate political speech in the form of deliberate lies related to ballot initiatives, referenda, candidates, or their political positions. Some courts focus on the various harms of electoral lies, while others focus more on the risks of bias and partisan abuse involved in such speech regulations, and the cases are in disarray.

This article argues, however, that the most important problem underlying this case confusion is inherent in the widely utilized constitutional standard of strict scrutiny. Strict scrutiny typically requires a compelling governmental interest, “narrow tailoring,” and some causal relation between the regulation and the compelling interest. The crucial point, though, is that, as this article documents, each of these elements lends itself to a surprising degree of arbitrariness, judicial subjectivity, uncontrollable complexity, and sheer impracticality.

The article works through these multiple problems, in the context of electoral lies and much more broadly, and considers two significant possible reforms of standard versions of the judicial strict scrutiny test.

Suggested Citation

Wright, R. George, Electoral Lies and the Broader Problems of Strict Scrutiny (April 4, 2012). Florida Law Review 64 p. 759, Available at SSRN: https://ssrn.com/abstract=2034573 or http://dx.doi.org/10.2139/ssrn.2034573

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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