Disinformation and the First Amendment

Abstract

In recent years, disinformation campaigns have caused significant harm, such as global climate disruption, the opioid crisis, the spread of COVID-19, attacks on voting rights, and an assault on the U.S. Capitol. Despite the damage disinformation causes, however, it is generally legal to purposefully spread false claims to the public. True, there are narrowly-defined areas where false claims to the public are prohibited, such as defamation, false light invasion of privacy, and securities fraud. But those aiming to deceive the public often do so under the protection of law because disinformation cannot typically be regulated under the First Amendment. If Congress or a state passed a law curtailing disinformation in general, or any significant category within it, such a broad content-based regulation would not survive a First Amendment challenge under strict scrutiny. Why? To begin with, the Supreme Court has recognized that false speech is protected. But another problem is that disinformation, like other similar terms such as fake news, propaganda, and misinformation, are vague and overbroad, and clearly encompass both protected and unprotected speech.

Accordingly, discussing regulation of “disinformation,” or of any other such broad category of speech, is not feasible under the First Amendment. This Article’s scope is far narrower. In it, I argue that speech that qualifies as “fraud on the public,” as defined herein, is a narrow subset of disinformation that is today largely treated as protected speech but should, under longstanding principles and precedent, be deemed unprotected. Such conduct fits—or should fit—within the existing fraud exception to the First Amendment. This argument is, in some ways, a radical one; the fraud carve-out to the First Amendment generally applies only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraudulent speech, such as securities fraud or false advertising. However, fraud on the public is carried out in an analogous manner to personal fraud, and the harm it causes to individuals, society, and the environment is no less substantial than the harm caused by personal fraud. Accordingly, fraud on the public, like personal fraud, runs counter to the aims of the Free Speech provision of the First Amendment. It should, therefore, be unprotected the way other kinds of fraud are unprotected. If we continue to permit unfettered fraud on the public, as we do today, the result will likely be the continued growth and spread of knowingly false claims to the public at large, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.

Keywords: first amendment, fraud, deceit, fraud on the public, free speech, false speech, disinformation, misinformation, propaganda, fake news

JEL Classification: K13, K14, K19, K22, K32, K42