Does misinformation qualify as protected speech under the first amendment?
Since the birth of the internet, the ability to stay connected across the globe is inconceivable. Facetiming family and friends from the opposite side of the globe or learning about world news going in a distant country. Thus, with all the good it has done, there has been a substantial negative, and that is fake news. So how is fake news kept to a minimum in society? Well, there isn’t a clear-cut answer as there are so many ethical and moral obstacles in the way of a clear-cut answer. In American society, one of big talking points is the use of the first amendment which states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (Constitute project, 2021).” This is the biggest roadblock in addressing this topic as both sides can not give a definitive solution that bypasses the first amendment.
The first talking point is social media. As social media companies are private companies, they can censor what they see fit rather through a government process. As the First Amendment protects hate speech from government censorship unless that speech incites or is likely to incite imminent lawless action (Freedom Forum institute, 2021). With websites like YouTube who tend to censor very heavily if to them it doesn’t “support content that promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender… (YouTube, 2021).” According to an MIT study in 2018, they found falsehoods are 70% more likely to be retweeted on Twitter than the truth and reach their first 1,500 people six times faster (MIT Sloan, 2020). Now I am not stating that Twitter is all falsehoods and misinformation, but the outlandish rate that it can be spread and viewed by people can cause all sought of problems. It is truly a scary sight which constructs the next part of the topic, where and when is the legal system brought in?
The legal system has had a difficult time outlining are a large portion of the law to stop false information. The lack of law specifying the consequences means that a lot of cases that include misinformation are held accountable by the jury. The government does not stand as the definer of truth, which is designed to emerge from the clash of opinions rather than from government fiat (Vile, 2021). As it is so difficult to identify fake news and misinformation, people see it as obscenity while others see it as criticism. There is a lack of objectiveness no matter who and where you read. One of the ways that the law tried to help individuals out was outlawing the ability to taint a person’s reputation. Thus, as a ‘step forward’ if misinformation is made or aimed at a single figure, the ability to sue for defamation is possible. But this is a reactive stance rather than being proactive. The thin line between satire and false statements is up to the reader. Hence, in the court case of Hustler Magazine v Falwell (1988), the court noted that “false statements of fact are particularly valueless (exploring constitutional law, 2021).” Hustler magazine put out an article stating that prominent minister Jerry Falwell had drunken sexual intercourse with his mother. This assumed to be an outrageous claim allowed the court and jury to draw a distinction between false comments not meant to be likely to be believed by the readers and other false statements of fact. The first amendment doesn’t allow for compensation for the victim on such an outrageous and borderline laughable claim. However, what this case triggered was that if the claim is closer to satire and far-fetched for the reader, there aren’t any grounds for legal action (exploring constitutional law, 2021).
So, how does this translate to politics and its policies that are meant to progress the law against misinformation. This is also arguably the biggest source of misinformation in society. One of the obvious examples is Donald Trump’s lawsuit of slander against his campaign. They allege the news outlets published opinion pieces with false statements about the president’s campaign (Institute for Free Speech, 2020). Trumps argument is based on the law that was passed in October 2020, which states that “deceptive audio or visual media of [a] candidate would cause a reasonable person to have a fundamentally different understanding or impression … than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording” (Institute for Free Speech, 2020). The lack of fact-checking of political ads is why bias news outlets such as CNN or Fox no matter which side the lie on incredibly dangerous. Obviously, it doesn’t help when Trump has outlandish comments and actions, but the principle of accountability is the reasoning of why this is important. This stems back into the civil rights movement where southern government officials began filing state-court defamation actions whenever national media reported on their doings with articles that contained any mistake of fact, whether innocent or not, important, or not. (The Atlantic, 2016) Thus, the infamous case of New York Times Co. v. Sullivan, created the modern First Amendment doctrine of defamation. Consequently, the fear of a totalitarian society is in the forefront of policymakers who try to stand within the box of acceptance by the common people. Justice Anthony Kennedy who wrote for a four-justice plurality, wrote: “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. … Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth” (The Atlantic, 2016). Overall, the government welcomes criticism which is allowed through the first amendment. As without it the government theoretically could silence people on a mass scale. Hence, falsehoods are protected to a certain extent. Although a majority of it isn’t helpful in our lives it helps keep the government and its policies in a innocent light.
Thus, does the first amendment cover false information? Unfortunately, yes. Unless it is specifically ruining a person’s career/reputation there isn’t much in the way of spreading false rumors. Whether it be news outlets or social media, people have a right to express their views. Although this common misconception gets caught up with false information, there isn’t a pinpoint value or statement which differentiates the two. The first amendment was created to allow its newly formed country the ability to express with freedom and autonomy. But nowadays this has a different meaning with the ability to reach ten times the people within the last twenty years. So how do we fix it? Unless further laws or regulations are added the current system in place will not challenge the new forms of misinformation.
Epps, Garrett. Does The First Amendment Protect Deliberate Lies?. The Atlantic, 2016, https://www.theatlantic.com/politics/archive/2016/08/does-the-first-amendment-protect-deliberate-lies/496004/. Accessed 4 Nov 2021.
“Exploring Constitutional Law”. Law2.Umkc.Edu, 201, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/home.html. Accessed 4 Nov 2021.
“False Speech“. Mtsu.Edu, 2021, https://www.mtsu.edu/first-amendment/article/1506/false-speech. Accessed 21 Oct 2021.
MIT Sloan research about social media, and elections. “MIT Sloan Research About Social Media, Misinformation, And Elections | MIT Sloan”. MIT Sloan, 2021, https://mitsloan.mit.edu/ideas-made-to-matter/mit-sloan-research-about-social-media-misinformation-and-elections. Accessed 4 Nov 2021.
“United States Of America 1789 (Rev. 1992) Constitution – Constitute”. Constituteproject.Org, 2021, https://www.constituteproject.org/constitution/United_States_of_America_1992. Accessed 21 Oct 2021.
“Yes, Politicians, “False” Speech About You Is Protected By The First Amendment“. Institute For Free Speech, 2020, https://www.ifs.org/blog/false-speech-trump-democrats-first-amendment/. Accessed 4 Nov 2021.
11/4/21
HR: None