On Oct. 8, 2021, the Norwegian Nobel Committee awarded the Nobel Peace Prize to Maria Ressa and Dmitry Muratov for their willingness to pursue truthful reporting in opposition to authoritarian regimes. In the citation, the Nobel committee rearticulated the basic truth that “freedom of expression and freedom of information [are] crucial prerequisites for democracy.”
But in a democracy, government must limit some speech to safeguard other democratic values. This is relatively uncontroversial in areas of the law of politics like campaign finance (where certain disclosures of donors’ identities and donations promote transparency and forestall corruption) and voter deception (where criminal penalties for lying to voters to prevent them from voting preserves voter access).
To me, the question is whether to limit the First Amendment protection of lies that directly subvert the integrity of the election system and, moreover, call into question the value of inclusion as a practice in American democracy. Because this disinformation not only subverts any objective meaning of election integrity but also stems from a motive that seeks to suppress and nullify the influence that people of color exercise in the 21st century American electorate, it does not deserve robust protection.
To be clear, this is not an effort to ban the exaggerations and half-truths that are part of ordinary political discourse. My concern is with the recent rhetoric of conspiracy and corruption that have created what I call an “epistemic crisis” for American democracy. This represents a crisis of knowledge where the difference between true and false claims regarding election integrity is increasingly difficult to discern, and that erasure threatens democracy itself.
For example, the “Big Lie” promulgated around the 2020 election—the allegation made with no proof that voter fraud and systemic corruption exist in select states and cities—sows widespread doubt about the integrity of election results. This doubt, in the guise of the “voter fraud meme” then is used to justify overly restrictive election laws that harm the voting process.
According to the Brennan Center for Justice, at least 18 states have passed 30 laws in the wake of the 2020 election that will make it harder to vote—and these states were likely driven by this "Big Lie." In addition, investigations in Pennsylvania and Wisconsin, and a protracted recount in Arizona (which found no proof of fraud) continue to foster doubt around the legitimacy of the 2020 presidential election. Despite the evidence that the 2020 election was, by all objective measures, “the most secure in American history,” the result continues to be openly doubted.
Historically, those who promoted public narratives of fear over lost election integrity did so to fight the inclusion of the “unworthy” into the political process. I have argued in prior work that the long story of the voter fraud lie stems in part from the racist belief that people of color are unworthy to engage in the political process. It is partly because this lie—and the apartheid consequences to the United States that this lie protected—was a clear threat to American democracy that Congress passed the Voting Rights Act of 1965. Read through this lens, the modern-day anti-democracy problem of disinformation takes on another dimension.
The "Big Lie" is racially coded.
The Trump campaign targeted several cities with unfounded claims of voting corruption where a significant part of the voting population is people of color—including Atlanta, Detroit, Milwaukee, and Philadelphia. Even after the election ended, the Georgia Legislature (among other conservative legislatures in states with substantial minority voting strength) passed laws to “fix” the mythical problem of voter fraud (sustained by the "Big Lie") to further suppress voting. And most shocking—and echoing Jim Crow-era race riots intended to subvert the vote of people of color—the "Big Lie" motivated the Capitol insurrection of January 6, 2021.
As Sherrilyn Ifill of the NAACP Legal Defense Fund observed:
“The president’s use of dog whistles to suggest the illegitimacy of votes cast by Black voters in Detroit, Philadelphia, Milwaukee, and Atlanta are an appeal to a dangerous and corrosive racialized narrative of voter fraud.”
Though we might take comfort from the fact that courts wholly blocked this attempt to use legal process to subvert the 2020 election, the larger lie is still protected free speech. Indeed, some have argued that First Amendment doctrine has a blind spot to bad ideas and disinformation that have real-world consequences. And to compound that effect, some argue that the First Amendment protects speech that harms communities of color while abandoning protection around speech that harms the powerful. So, the epistemic crisis remains.
We should reconsider the degree of tolerance the First Amendment allows for election lies that pose a clear and present danger to the political process, especially considering the threat towards racial minorities in that process.
We should reconsider the degree of tolerance the First Amendment allows for election lies that pose a clear and present danger to the political process, especially considering the threat towards racial minorities in that process. Perhaps an objective truth requirement for discourse around election integrity—or a disclaimer to signal such truth is lacking—ought also to apply to claims on social media, the press, and elsewhere (including the legislature!). Perhaps the government has an interest in protecting election outcome credibility, akin to the kind of disaster-related election infrastructure interest Rick Hasen suggested in his recent book, and this value could justify a narrower speech protection for impactful election integrity lies.
But the problem of epistemic crisis is not just a problem of how to monitor or police election claims in the public sphere. This epistemic crisis is a crisis of democratic values—the values of inclusion and equality that are central to a functioning democracy. Framing the problem as a need to amplify these values in our electoral process is perhaps a necessary preliminary step.
The only long-lasting solution to the continued promulgation of the "Big Lie" is a broader conversation about both the positive values contained in worthwhile civic education—including an appreciation of the mechanics of the democratic process and its complexities—as well as a critique of negative values and disreputable history of American democracy, including the history of and ongoing harms caused by coded racial voter suppression. The government’s promotion of this speech as a counternarrative to the "Big Lie" of anti-democratic exclusion should be our way forward.
Atiba Ellis is a professor of law at the Marquette University Law School.