The Knight Institute invites submissions for its spring symposium, “Lies, Free Speech, and the Law” to be held at Columbia Law School, on April 7-8, 2022. The symposium will explore how the law regulates, or should regulate, false and misleading speech. A more detailed discussion of the theme of the symposium is below, followed by logistical information for those who wish to participate.
Description and Aims
Concern over the role that lies and deception of all kinds play in public life in the United States has reached new heights in the last few years. Lies, half-truths, and conspiracy theories zip around the social media platforms, while fact-checking and other efforts to minimize their spread appear to rarely dent their power. What some describe as an epistemic crisis of truth has prompted calls from many quarters for the social media platforms, and perhaps also the government, to take stronger action to curb harmful lies about the outcome of the presidential election, the efficacy of coronavirus vaccines, and the seriousness of COVID-19, among other matters.
The pervasiveness of lies and misinformation in public discourse in the United States, and the political and cultural power that this kind of speech can possess raise all sorts of questions about the health of U.S. democracy, about the limits of human reason, and about the role that shared beliefs play in the creation of collective identity. But it also raises important questions about the meaning of freedom of speech. One of the foundational assumptions of modern First Amendment law is that the best remedy for harmful speech—including harmfully false or misleading speech—is more speech. Does this assumption hold, given our contemporary, fragmented, highly polarized mass public sphere? And if it doesn’t, what can we do about it? More precisely, what can the law do about it? Are there cures here that would not be worse than the disease?
These questions are not new ones. Anxiety about the threat that lies pose to democracy and to national unity has suffused public discourse before—for example, in the wake of the Watergate scandal and Pentagon Papers revelations, and the invasion of Iraq in 2003.
But these questions appear particularly acute today for several reasons. First, America is more divided, politically and culturally, than it has been in decades. Political polarization is much greater than it was during earlier periods of epistemic anxiety, such as the Vietnam Era. In this divisive environment, political lies may possess a kind of potency than they might otherwise possess because of their capacity to reinforce political divisions and affiliations.
Second, the institutional structures that in previous decades sometimes worked to promote a truth-based public discourse have been seriously eroded by technological, political, and economic change. The economic crisis facing the newspaper industry, combined with the technological developments that have lowered barriers to participation in public discourse, limit the extent to which professional journalistic norms can ensure the empirical truth-based nature of mass public discourse. Meanwhile, the policies that regulators adopted in the mid-20th century in an effort to reconcile democratic values with a primarily commercial media—policies like the Fairness Doctrine and similar non-discrimination and right of reply requirements, and ownership caps designed to ensure the diversity of control over channels of mass communication—have been either rescinded, held to be unconstitutional, or sharply limited in scope. The result is a much more fragmented public sphere—one in which, to be sure, a far broader and more diverse group of people can participate than ever before in U.S. history, but also one in which factual claims are much less subject to direct challenge, and counterspeech can be lost in the floods of posts on social media platforms.
These changes in the political, economic, and technological landscape raise in new form age-old questions about the legal regulation of lies, misinformation, and misleading speech. Does the government bear responsibility for guarding the public against lies and deception? More generally, what kinds of regulation—if any—are necessary to ensure that public discourse promotes democratic values, or even something we might call the search for truth? Is the only alternative to the existing, fragmented, and conspiracy-laden mass public sphere a return to the much less open and democratic mid-20th century mass public? Or can we devise solutions to the problems of lies and disinformation in the mass public sphere that do not require reimposing institutional, regulatory, or economic barriers to entry? And what does the First Amendment have to say about any or all of this?
These are the questions this symposium will explore. Although the problem of lies has received significant scholarly attention in recent years, very little attention has been paid to the role that law might play in mitigating, or has played in exacerbating, the problem. And yet, what some have described as the “crisis of truth” that the United States and many other contemporary democracies face raises all kinds of interesting and important legal questions. To address them, we invite papers from an ideologically and disciplinarily diverse group of scholars, advocates, and litigators that examine the connections between lies, freedom of speech (construed broadly), and the law. We are interested, in particular, in papers that address one or more of the following themes.
The Sociological and Constitutional Status of False or Misleading Speech
The Supreme Court has expressed, over the years, a great deal of uncertainty about the constitutional status of false statements of fact. In NYT v. Sullivan, the Court quoted John Stuart Mill for the proposition that even false statements of fact have social, and hence constitutional, value because they enable “the clearer perception and livelier impression of truth, produced by its collision with error.” New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). Ten years later, however, the Court insisted that false statements of fact have in fact no constitutional value whatsoever because “[n]either the intentional lie nor the careless error materially advances society’s interest in uninhibited, robust, and wide-open debate on public issues.” Gertz v. Robert Welch, 418 U.S. 323, 340 (1974). More recently, the Court returned to its original position that false statements of fact possess constitutional value because, as Justice Breyer explained in his concurring opinion, encounters with them “can promote a form of thought that ultimately leads to truth.” United States v. Alvarez, 567 U.S. 709, 733 (2012). Justice Kennedy’s majority opinion nevertheless made clear that false speech that had traditionally been regulated by the government and that caused what the opinion described, somewhat enigmatically, as “legally cognizable harm,” should continue to be treated as a kind of low-value expression, its regulation subject to deferential judicial scrutiny at best.
The result is that, notwithstanding the Court’s decision in Alvarez, the government today continues to possess considerable power to regulate certain kinds of false and misleading factual statements—those that occur in the commercial marketplace, for example, or that are intended to deceive another into relinquishing material benefits, or that involve elections, or communicate defamatory falsehoods about individuals. What the government may not do, except in the most extraordinary of circumstances, is restrict the dissemination of political lies—a category that includes not only overtly political speech, but defamatory falsehoods about large racial or religious groups and other false factual claims about matters of general public interest. Do these distinctions make sense? What assumptions about the world, the marketplace of ideas, and the danger of government lead courts to draw the dividing line between high- and low-value false statements where they do? Do these assumptions hold in a public sphere organized around the fractious if also generative speech communities of social media? And if they do not, how should they be reformulated? More generally: To what extent might direct regulation of false statements of fact mitigate the crisis of truth that some believe American democracy to be facing? And to what extent might the expanded regulation of lies worsen that problem?
Defining the Category of Lies
Discussion of the epistemic problems facing American democracy today tends to get bogged down in the complicated terminology employed by different kinds of specialists to describe the source of the problem. Media studies scholars speak of lies, disinformation and misinformation; philosophers explore the ethical and political problems created by a category of expressive behavior they call deception; First Amendment law tends to define lies as false statements of fact but expands that category in some contexts to include misleading but literally true factual claims; meanwhile fact-checkers in the news and on the social media platforms distinguish between truths, half-truths, mostly-truths, lies, and extraordinary lies—or what the truth-checking site PolitiFact describes as “pants on fire” lies.
The complicated taxonomies used to discuss the problem of lies reflect the slipperiness of the category, given the inevitable limits of human knowledge of the material world. Whether a statement is in fact true may not always be knowable at the moment of utterance or adjudication. It also reflects the complicated sociological reality of lying. False claims about the world may enter public discourse by mistake or inadvertence, or as the result of deliberate intention. Someone might lie in order to make a million dollars or to console a friend. And the complexity of human language enables a skilled orator to deceive without making a single false claim.
Given this complexity, how do regulators—both public and private—delimit, as a practical matter, truth from lies? And how should they do so? More generally, does the complexity of the distinction between false and true speech make it too dangerous to empower the government to legally sanction lies? This is an argument frequently made against the regulation of false speech, but it is not in fact an argument that has prevented the government from regulating certain kinds of lies (commercial lies, fraudulent lies, defamatory lies) quite aggressively. This raises the question of whether certain kinds of lies, or lies made in certain kinds of contexts, are more legally tractable than others. And for those lies that are too subtle to be regulated by the blunt instrument of the law, are there other, more subtle instruments available that could be used to demarcate them as such or limit their dissemination?
Structural Regulation and the Problem of Lies
Over the past four decades, legal, as well as technological and economic changes, have profoundly altered both the organization and the composition of the mass public. On the one hand, deregulatory economic policies have encouraged the concentration of media markets in the United States. At the same time, government agencies have chosen, for both political and constitutional reasons, to less aggressively regulate the behavior of the private speech intermediaries (newspapers, cable companies, internet service providers, social media companies) that disseminate information to a mass public audience. To what extent have these changes produced the fragmented, polarized, and conspiracy-laden public sphere of the present? To what extent have they mitigated against it? More generally, what role might structural regulation of the mass public sphere play in preserving the fact-based nature of public discourse? Would a less concentrated mass public (one, for example, in which Facebook did not play the enormous role it plays today) prove more or less resistant to consumer activism around questions of misinformation and disinformation, and/or to government pressure? How do we understand the potentially hydraulic or dynamic effects of the processes of concentration, deregulation, and democratization as they have impacted the mass public—and what are the implications for First Amendment law?
Of all the kinds of lies that proliferate in the mass public, perhaps the most dangerous to the functioning of democratic government are government lies. This is because when the government lies either about its own activities or about the various kinds of information it continually collects about the state of the country, it threatens the ability of the people to perform their basic democratic function: namely, to judge whether their elected representatives are representing their interests satisfactorily. Government lies, because of the status of those who make them, also may travel further and prove more enduring than other kinds of lies. Government lies are also, however, harder to regulate than other kinds. Who, after all, shall watch the watchmen? One obvious answer to this question is courts. But the courts have almost unequivocally rejected the idea that constitutional law should do anything to constrain the government’s capacity to lie. The result is that what mechanisms exist to limit government lying—whistleblower laws, right of information statutes, norms forbidding political interference with bureaucratic practice—are entirely a product of legislative invention and/or institutional organization. And, as the four years of the Trump presidency made clear, these mechanisms are significantly limited in what they can do to prevent executive branch lies.
Are there reforms, either constitutional, legislative, or institutional, that could be made to limit the government’s capacity to lie or to mitigate the harms created by government lies? What might law do to prevent the kinds of blatant political lies that President Trump engaged in? What might it do to preserve the integrity of the information that the bureaucratic infrastructure of the federal and state bureaucracies produce? And does it matter that none of the rules that constrain government lies and deception are constitutional in nature? These are not new questions. Administrative law scholars have been usefully exploring how to insulate the scientific apparatus of the federal government from political pressure for decades. But they are questions that have acquired a heightened urgency with the increasing polarization of American politics. In an intensely partisan political environment, is it possible to prevent the government’s lies or limit their harms?
The Deregulation of Disclosure
One of the tools that law has traditionally used to remedy or prevent fraud and misrepresentation is the tool of disclosure. Disclosure was a preferred method of combating deception for many reasons, one of which being that disclosure requirements have traditionally been viewed by the Supreme Court to be less constitutionally problematic than laws that directly ban false or misleading speech. This is still true today—but it is less true than it once was. In a range of contexts—charitable fundraisers, crisis pregnancy centers, campaign finance cases—the Court has construed the First Amendment to require rigorous scrutiny of disclosure mandates. The result has been a partial deregulation of disclosure.
This doctrinal trend raises all kinds of questions. How much of a threat does the First Amendment pose to existing or proposed regimes of disclosure? And was the Court correct, when it held in Riley v. National Federation of the Blind, 487 U.S. 781 (1988), that laws that require speakers to disclose true statements of fact pose as grave a threat to their First Amendment interests as laws that compel speakers to take positions on matters of opinion? Are disclosure laws, outside a few narrow contexts, as constitutionally problematic as other kinds of compelled speech? And, as an empirical matter, how effective is disclosure as a remedy to the problem of lies and deception in the mass public sphere?
Dates, Deadlines, and Logistics
If you are interested in participating in the symposium, please send us a 250-word abstract of your paper by November 15, 2021. The abstract should describe the central claim you intend to make in the paper and identify the main arguments you intend to offer in support of that claim. Please submit the abstract to Katy Glenn Bass at [email protected]. We intend to review all of the abstracts by the end of November, with the goal of commissioning 6-12 papers of 8,000-12,000 words.
First drafts will be due March 1, 2022. We will review these drafts and return high-level feedback by the end of March. These drafts will also be circulated to all participants in advance of the symposium, which will take place on April 7-8, 2022 at Columbia University (in-person, if public health circumstances allow). Revised drafts will be due after the symposium. We will either partner with a major law review in publishing the papers (as the Knight Institute did with this series) or publish the papers in an edited book volume (as the Institute did with this series). Authors will also be asked to write a short (1,000-2,000 word) blog post summarizing their article for the Knight Institute website. Each author will receive an honorarium of $6,000 (or $4,000 for each author in a jointly authored piece).
Papers will be edited by Genevieve Lakier, Professor of Law and the University of Chicago Law School and Senior Visiting Research Scholar at the Knight Institute, and Katy Glenn Bass, Research Director of the Knight Institute, with the assistance of other Institute staff. We may solicit and publish responses to the papers.
The symposium itself will be held at Columbia Law School. There will be a dinner for participants on the night of and/or the night before the symposium. The symposium itself will be open to the public, and the Knight Institute will cover participants’ travel and hotel expenses. If you are not interested in writing for the symposium but might be willing to be a commentator, please let us know that as well.
Genevieve Lakier is the Knight Institute's senior visiting research scholar, 2021-2022.
Katy Glenn Bass is the Knight Institute’s research director.