On April 8, 2022, the Knight Institute will host a symposium to explore how the law regulates or should regulate false and misleading speech. The symposium, titled “Lies, Free Speech, and the Law,” is being overseen by the Institute’s Senior Visiting Research Scholar Genevieve Lakier and will take place at Columbia University and online.
The symposium will focus on five themes that examine the connections between lies, freedom of speech (construed broadly), and the law. These are: 1) the sociological and constitutional status of false or misleading speech; 2) defining the category of lies; 3) structural regulation and the problem of lies; 4) government lies; and 5) the deregulation of disclosure.
Today, we are excited to announce that the symposium will feature 13 papers from some of the country’s leading scholars of law, political science, history, and technology, including:
RonNell Andersen Jones (University of Utah S.J. Quinney College of Law) and Sonja R. West (University of Georgia School of Law) will investigate how justices of the U.S. Supreme Court have abandoned a once-vibrant presumption of press trustworthiness and will contrast this with the Court’s ongoing willingness to presume the credibility of other speakers. They will explore both the potential causes of the decline and the potential consequences for democracy that accompany it.
Alan Chen (University of Denver Sturm College of Law) will explore why investigative deceptions—intentional lies used to conduct undercover investigations—are celebrated in some contexts and criminalized in others. He will argue that social, political, and historical contingencies help explain the differences in how law and society view the acceptability of these lies. He will also explore whether debates about the propriety of such deceptions in contexts where they are widely acceptable might help inform First Amendment doctrine in contexts where they are not.
Adam M. Enders (University of Louisville) and Joseph Uscinski (University of Miami) will draw on social scientific scholarship regarding the causes and consequences of conspiracy theories and misinformation to argue that there is insufficient evidence of the societal harm of conspiracy theories, misinformation, and fake news to warrant a legal doctrine designed to restrict such types of speech. Moreover, they will demonstrate how centuries-old epistemological quandaries prevent the accurate, impartial classification of ideas as conspiracy theories, misinformation, or fake news in the first place.
Jamal Greene (Columbia Law School) will explore the distinctive doctrinal treatment of government speech and counterspeech. He will argue that government speech and counterspeech should be subject to the same regime, but that within both areas, courts should develop distinctions between different forms of viewpoint discrimination. In general, partisan political or electoral viewpoint discrimination should almost never be permitted, but the government should otherwise enjoy wide leeway to engage in either speech or counterspeech, including to combat misinformation or promote truthful discourse.
Heidi Kitrosser (University of Minnesota Law School) will explore the role of and current cultural, political, and legal threats faced by the government’s “knowledge producers.” These are the public institutions and personnel whose roles are predominantly investigative or otherwise fact-finding-based, research-oriented, or analytical in nature. They include government scientists, economists, and inspectors general, as well as public universities and their faculty members.
Sam Lebovic (George Mason University) will argue that the contemporary crisis of fake news has deep historical roots in recurring problems of democratic public opinion, including public distrust of and disengagement from political life; the underproduction of information needed for self-governance; and cynical and self-interested political propaganda. These problems have been exacerbated and made more visible by shifts in the political economy of the media, but they are not new and there is no easy fix. Reform efforts should focus not on trying to eliminate fake news but on trying to cultivate and nurture forms of information and dialogue that can produce a more substantively democratic public sphere.
Artur Pericles Lima Monteiro (Yale Law School) will draw on multidisciplinary empirical research to provide a more sophisticated account of the role of anonymity and how it should be a part of the regulatory toolkit for healthier public discourse. He will argue that while legal discussion often pits listeners’ interests in disclosure to speakers’ anonymity, research on anonymous communities and social media shows that this is not always true. In fact, anonymity generates new audiences and discursive environments, which disclosure would foreclose.
Helen Norton (University of Colorado School of Law) will argue that First Amendment concerns about the government’s regulation of falsehoods are most often rooted in distrust of the government. The less tangible—or the more diffuse or causally complicated—the harm threatened by certain lies, the less we may trust the government’s decisions about whether and when to find harm. She plans to examine the regulatory challenge of accurately capturing certain lies’ potential to inflict significant harms (for example, in election-related settings) while identifying limiting principles to address our legitimate concerns about the government’s potential for overreach, self-interest, bias, or clumsiness.
Deborah Pearlstein (Cardozo Law School) will examine the extent to which principles of free expression have been understood to permit the regulation of speech in the interest of preserving a democratic public order. Recognizing that the U.S. Constitution has long tolerated the regulation of false speech in the interest of protecting against certain individual harms, like damage to a person’s reputation, Pearlstein will discuss whether constitutionally cognizable harms may be best understood to include structural harms to constitutional democracy—a concept that extends not only to preserving the legitimacy and integrity of democratic elections, but also to protecting the functional operation of other governing institutions, and to the maintenance of an accessible marketplace of ideas.
Amanda Shanor (University of Pennsylvania Wharton School) will look at the “Big Lie”—the false allegation that the 2020 election was stolen from former President Trump. Despite widespread recognition that the "Big Lie" fueled the storming of the U.S. Capitol and that similar lies may cause violence and election subversion in the future, conventional wisdom holds that the First Amendment prohibits lawmakers from doing anything about it. Shanor will argue that that assumption is incorrect.
Mark Tushnet (Harvard Law School) will argue that while there are sometimes good reasons to be leery of regulation of falsehoods, those reasons aren’t generally applicable to lies, which he defines as falsehoods known by the speaker to be false. He will note that there are some other reasons to worry about regulating lies, but those reasons don’t weigh strongly against the constitutionality of laws targeting clearly identified lies about “basic” scientific and physical facts about the world.
Eugene Volokh (UCLA School of Law) will analyze the distinction made between some factual falsehoods (“seditious libels” against the government, “false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern,” and the like) that are categorically protected even if they’re knowing lies, and other knowing lies that are nonetheless punishable—libels of living individuals, corporations, or their products; nonlibelous falsehoods about individuals (under the false light tort); lies to government officials; likely public crime hoaxes; likely lies by authors aimed at getting publishers to buy their books; and more. Does this distinction make sense, and, if so, how should it be drawn?
John Fabian Witt (Yale Law School) will look at a striking feature of the modern law of free speech: that it arose simultaneously with the widespread realization that free speech in mass society produced propaganda, lies, and distortion. In the wake of the First World War, early civil liberties advocates were not ignorant of this; they organized their efforts around the problem of what they too called weaponized speech. Key figures in the early civil liberties movement aimed to build a vibrant political economy of public opinion by nurturing intermediary institutions like the administrative state and industrial unions. Our dilemma 100 years later, he will argue, is in large part the decay and collapse of these intermediary institutions for managing the distortion of public opinion.
To attend the April 7-8 Lies, Free Speech, and the Law symposium, RSVP here.
Katy Glenn Bass is the Knight Institute’s research director.