If there was ever any doubt that lies about elections can be especially dangerous, the Jan. 6, 2021, insurrection at the United States Capitol should put that to rest. The invasion put the lives of then-Vice President Mike Pence and the congressional leadership in danger, and it left four Trump supporters dead and 146 law enforcement officers injured, including one tased by protestors so many times he suffered a heart attack. One Capitol Police officer died of a stroke the next day and four more died by suicide within months of the riot.
It is quite easy to connect the violence that accompanied Congress’s ceremonial counting of Electoral College votes to determine the winner of the 2020 presidential election to the repeated false statements from former President Donald J. Trump about whether the election was “stolen” or “rigged” against him. Trump made over 400 statements on Twitter about the election being stolen in less than three weeks after the Nov. 3 election, and repeatedly encouraged his supporters to attend a “wild” rally in the nation’s capital on Jan. 6 to protest the formal recognition of his opponent Joe Biden’s victory. At that rally, Trump exhorted the crowd to go to the Capitol building and “take back our country.” The violence that ensued was as predictable as it was tragic.
It is far harder to know what to do about election-related lies in ways that are consistent with the First Amendment and that do not squelch the kind of robust political debate that is essential for a vibrant, modern democracy.
In a book to be released in March 2022, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, I explain how technological change has allowed the spread of disinformation, and particularly disinformation about how elections are run, to threaten the integrity of the election system. And I offer a host of both legal and norm-based solutions to lessen the risk that disinformation will bring down American democracy, as was threatened on Jan. 6.
I cannot offer the full argument in this brief blog post, but I do think it is useful to address a point I will make in the book about a distinction between false election speech and false campaign speech. I believe that Congress or states may constitutionally ban the former but not the latter, and government may require social media companies to remove false election speech from their platforms.
False election speech is false speech about when, where, and how people vote. Lying about the location of a polling place or the dates of voting fall into this category. False campaign speech is false speech in the context of a campaign that is about any other subject besides when, where, and how people vote. A candidate lying about whether her opponent voted to raise taxes falls into this category.
In the 2012 case, United States v. Alvarez, the Supreme Court struck down on First Amendment grounds a law barring a person from lying about having received the Congressional Medal of Honor. The Court was divided in its reasons, but virtually all the justices seemed to agree that lies about political or historical facts merit strong First Amendment protection. Indeed, lower courts relying on Alvarez have struck down some state laws that bar false campaign speech, even when a candidate or campaign knowingly lies.
But there is reason to think that the constitutional question about false election speech is different. In the 2018 case, Minnesota Voters Alliance v. Mansky, the Court struck down on First Amendment grounds a state law barring the wearing of clothing with political messages into the polling place for voting. Among other things, the Court found the law too vague, leading to potential uneven administration by election officials. But in the course of discussing a ban on “Please I.D. Me” buttons at the polling place in a state that did not require photo identification to vote, the Court declared that “We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”
It is easy to see how a law barring false election speech falls on the permissible side of the constitutional line after Mansky. Rather than requiring discretion on the part of government officials, or embroiling them in difficult questions about what is a lie ... figuring out whether someone lied about when, where, and how people vote is typically easy.
It is easy to see how a law barring false election speech falls on the permissible side of the constitutional line after Mansky. Rather than requiring discretion on the part of government officials, or embroiling them in difficult questions about what is a lie (as when a candidate claims it is a lie to say she voted to increase taxes when she voted to increase fees rather than taxes on users of certain services), figuring out whether someone lied about when, where, and how people vote is typically easy. Either voting is allowed on Wednesday or it is not; either someone may vote by text (the subject of an ongoing prosecution) or they may not. Laws barring false election speech protect the integrity of the election process itself; they ensure that people are not disenfranchised by lies, particularly when such lies are directed to suppress the vote in particular communities.
Such laws do not put the state into a position in taking sides between candidates in a debate over things like what constitutes a tax increase. In this age of hyperpolarization and disinformation, assuring that voters have accurate information about when, where, and how to vote is indeed a compelling interest, as compelling as the interest in truthtelling during judicial proceedings that led the Court to endorse anti-perjury laws in Alvarez.
A ban on false election speech still raises very thorny questions such as whether the state may require social media companies to remove posts containing such speech and written by others, and whether a ban on merely misleading speech (such as “Please I.D. Me”) would be permissible.
And one of the most difficult questions concerns Trump’s post-election conduct: Is falsely claiming an election was stolen or rigged something that the government may prohibit? The question is a close one, and it is one with which I continue to wrestle. If such a law is permissible, it must be because such a law is necessary to protect the integrity of future elections and democracy more generally.
Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine, and is Co-Director of the Fair Elections and Free Speech Center.