Legislating Against Lying in Campaigns and Elections

25 Pages Posted: 27 Sep 2018

See all articles by Joshua Sellers

Joshua Sellers

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2018

Abstract

Political speech receives robust protection under the First Amendment, but lying in campaigns and elections is harmful to democracy. In light of the former, what can be done about the latter? In the wake of the Supreme Court’s 2012 decision in United States v. Alvarez, the answer to the question is uncertain. In Alvarez, six Justices supported the conclusion that intentional lies are protected under the First Amendment. The decision renders existing laws regulating intentionally false campaign and election speech extraordinarily vulnerable.

In the following Essay, I consider three circumstances in which narrowly drawn campaign and election speech restrictions are doctrinally defensible. The first is when foreign nationals, during a campaign or election, engage in intentionally false speech expressly advocating for or against the election of a candidate. The second is when intentionally false speech is used to undermine election administration. And the third is when a campaign or outside political group intentionally falsifies a mandatory disclosure filing. Aside from quite limited circumstances such as these, it is exceptionally difficult to craft novel campaign and election speech restrictions that can survive a First Amendment challenge.

Keywords: Election Law, American Politics, First Amendment

Suggested Citation

Sellers, Joshua, Legislating Against Lying in Campaigns and Elections (2018). 71 Okla. L. Rev. 141 (2018). Available at SSRN: https://ssrn.com/abstract=3247293

Joshua Sellers (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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