Two-Sided Social Media and Bad Faith Political Speech

Research in Law and Economics, Vol. 29, p. 127, 2021

14 Pages Posted: 6 Jan 2021 Last revised: 18 May 2021

See all articles by Frank Fagan

Frank Fagan

South Texas College of Law Houston; EDHEC Augmented Law Institute

Date Written: March 9, 2020

Abstract

The First Amendment affords protection to political speech on the basis of its high value. However, political speakers who make inflammatory statements on both sides of an issue do not advance political projects. An entity that purchases inflammatory social media advertising, for instance, both for and against gun control, and generates offsetting reactions, simply raises the level of discursive conflict. This actor may be identified as a bad faith political speaker through relatively objective criteria. One-sided content producers, by contrast, even if they utter falsehoods and inflame discourse, cannot be so easily branded. The Gertz court, and First Amendment doctrine in general, correctly views this challenge as better handled outside of the courtroom. The novelty presented here is that evidence of two-sided content production can curtail the need for discretion and potentially close the door to many errors in judgment. Classifying two-sided inflammatory speech as low-value is relatively easy to administer judicially, consistent with economic efficiency, and increases the political bargaining space by reducing discursive conflict. It also has the advantage of prohibiting egregious outside interference in an election without the need to identify the geographic origin of the disruption.

Keywords: First Amendment, social media, two-sided content, 52 U.S.C. § 30121

JEL Classification: K19, K39

Suggested Citation

Fagan, Frank, Two-Sided Social Media and Bad Faith Political Speech (March 9, 2020). Research in Law and Economics, Vol. 29, p. 127, 2021, Available at SSRN: https://ssrn.com/abstract=3551196

Frank Fagan (Contact Author)

South Texas College of Law Houston

1303 San Jacinto Street
Houston, TX 77002
United States

EDHEC Augmented Law Institute

Roubaix, 59057
France

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