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. 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 recent 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?
Over the coming months, Professor Lakier, the Knight Institute’s 2021-22 senior visiting research scholar, will lead a project to explore how the law does or should shape the regulation of lies, disinformation, and misinformation in the digital age. The project will culminate in a major symposium to be held at Columbia Law School on April 14-15, 2022, followed by the publication of a series of research essays.
Professor Lakier will also host six roundtable discussions over the next six months focusing on the significance of lies and how the law currently regulates lies in key areas affecting U.S. democracy, including elections, the press, and social media, among others. These events will generate an ongoing discussion about the project’s key themes and questions, including:
- What role do lies play in democratic politics in the United States? How much of a threat do lies pose to democratic order? Is there anything particularly powerful, or dangerous, about lies right now? What does the effectiveness of Donald Trump’s “Big Lie” in persuading significant numbers of voters to believe that the 2020 election was plagued by fraud reveal about the state of American democracy in the current moment?
- How should the government regulate election-related speech? Should we treat the electoral context as exceptional when it comes to the regulation of lies? And does the relatively aggressive stance that labor law has long taken when it comes to the regulation of election lies have any implications for the regulation of elections beyond the workplace?
- Are Justices Thomas and Gorsuch correct that, in the current media landscape, the holding in New York Times v. Sullivan no longer serves free speech values? More generally, should Sullivan be limited? Expanded? Abolished? And what could/should/might take its place?
- How can or should lies made by the government be regulated? Is disclosure regulation the answer? What protection should whistleblowers receive as a constitutional matter? What are the legal tools that we might adopt to make government lies less threatening to the possibility of self-government?
- How does technology impact the practice of lying? And do the features of new technology justify new regulatory approaches to the problem of lies, disinformation, and misinformation?
- Recent First Amendment decisions (most notably NIFLA v. Becerra) appear to make it much more difficult for the government to prevent misrepresentation by requiring affirmative disclosures of facts. How much of a threat does the First Amendment pose to disclosure as a remedy to the problem of lies? How useful is disclosure as a remedy in the first place?
Roundtable participants will share short blog posts around the time of each event as part of an effort to encourage public discussion. The series kicks off with posts from Masha Gessen, Quinta Jurecic, and Sophia Rosenfeld.
For the concluding symposium next April, the Knight Institute seeks papers from an ideologically and disciplinarily diverse group of scholars, advocates, and litigators who 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: 1) The sociological and constitutional status of false or misleading speech, 2) How to define “lies” as a category, 3) Structural regulation and the problem of lies, 4) Government lies, and 5) The deregulation of disclosure.
Watch this space for more information about this project, including how to RSVP for the roundtable discussions, and announcements about symposium participants and their paper topics. You can register here for the first roundtable discussion, “Lies and Democracy,” on Sept. 24 at 1 p.m. EDT with Masha Gessen, Quinta Jurecic, and Sophia Rosenfeld.
Genevieve Lakier is a professor at the University of Chicago Law School and was the Knight Institute's senior visiting research scholar, 2021-2022.
Katy Glenn Bass is the Knight Institute’s research director.