Democracy Harms and the First Amendment

Abstract

The First Amendment tolerates – has long tolerated – the regulation of certain kinds of false speech. Indeed, regulable lies are not limited to traditionally less-protected categories of speech like defamation and commercial deception. They include an array of other established speech regulations, administered by government institutions every day, from criminal laws barring perjury and other lies to government officials, to disciplinary measures by elected bodies sanctioning members for false or otherwise objectionable speech. Yet while it is easy to identify the kinds of lies that existing doctrinal categories make regulable for the personal, physical, or reputational harms they inflict on individuals¸ it has been far less clear what other constitutionally “cognizable” harms support this separate class of lies equally long subject to regulation. This Essay argues that those other cognizable harms are best understood as including the structural interests of constitutional democracy – a concept that extends not only to preserving the integrity of elections, but also to protecting the functional operation of other governing institutions, and to maintaining an information environment sufficient to support a system of constitutional democratic governance. While existing jurisprudence and long recognized principles of constitutional theory offer ample support for this distinct category of democracy harms, the doctrinal fiction that no such category exists reinforces a perverse conception of the civil right to free expression – as one that tolerates burdens in the interest of remediating private harms (like injuries to reputation), but not in the interest of public harms (like injuries to the institutional mechanisms of democratic accountability). More, focus on the maintenance of existing categories as the critical safeguard against excessive speech regulation obscures the Court’s chronic failure to develop a consistent or meaningful understanding of the potentially far more consequential limit on government regulation of speech: the empirical requirement that regulators demonstrate a content-based rule is actually necessary to achieve their democracy-protecting goal, and is carefully tailored to achieving it.

Keywords: First Amendment, speech, constitutional democracy, free expression, harm, speech regulation