False speech that inflicts significant harm on American society may be best addressed through social and institutional change rather than through laws that regulate lies. That was a key takeaway from scholars and others at an April 8, 2022, symposium on “Lies, Free Speech, and the Law,” organized by the Knight First Amendment Institute to foster leading-edge research on the topic.
Gaining a comprehensive perspective on the problem had long been one of the event’s aims, explained Knight Institute’s senior visiting research scholar Genevieve Lakier, who said the program sought “to refocus the conversation about lies and misinformation away from its familiar focus on Big Tech and to ask more historical, political, and sociological questions.”
Lakier, who organized the day-long program with the Institute’s research director Katy Glenn Bass, told attendees at the symposium’s start: “It turns out pulling on the thread of false speech opens up all kinds of really interesting and important questions about American politics and society. Questions like: What do we mean when we talk about a democratic public sphere? How democratic do we really want the public sphere to be? What are the kinds of institutions that we think should mediate it? What is the role of expertise in democracy? And how do party structures and economic logics organize and undermine what courts and First Amendment cases tend to describe as the marketplace of ideas?”
Also core to the gathering were questions about the meaning of freedom of speech, including a foundational assumption of modern First Amendment law—that the best remedy for harmful speech is more speech.
President Lee C. Bollinger helped set an expansive tone in the opening moments of the event, offering a historical context on how to address disinformation in a free speech framework. As one of the nation’s foremost First Amendment scholars, Bollinger acknowledged the debate over the problem as “one of the most momentous in my lifetime about how to think about free speech and press under the First Amendment.” But he also urged that “we not fall into the trap of thinking that we have never encountered anything like these issues before.”
Bollinger said: “Perhaps the magnitude of the problems is greater, but the nature of the problems and the availability of complex ways of approaching them are not. We have encountered major new technologies before in the last century, notably broadcasting, and many, if not all, of the dilemmas we feel now were felt then and continue on to this very moment.”
Next, a panel of scholars looking at lies in historical context discussed recurring concerns over false speech in U.S. public discourse, connecting them to problems like distrust in public life (exacerbated in the present day by the shrinking news media economy), the declining presumption of press trustworthiness among justices of the U.S. Supreme Court and the issue of “weaponized speech” in the form of wartime propaganda, going back to World War I.
Even as First Amendment guardrails protect against many direct speech restrictions, several presenters pointed out that certain kinds of lies have a long history of being regulated.
Deborah Pearlstein of Cardozo School of Law reminded listeners that “there is an enormous amount of speech, and especially false speech, that we regulate all the time—everything from perjury and impersonating government officials to speech that’s disruptive to courtrooms and polling places, to lies by lawyers and judges who are campaigning for election to candidates running for office and trying to disclaim their authorship or belief in their own campaign messages.”
But others argued that, at the same time, First Amendment doctrine constrains the capacity to directly regulate the kinds of falsehoods that threaten democracy.
Eugene Volokh of UCLA School of Law, for example, said, “It’s pretty broadly agreed that lies about the government are categorically protected,” largely because limitations on such lies “as a practical matter, may restrict sincere errors and sometimes may restrict the truth but often restrict opinion as well.”
Scholars throughout the day’s event made the case that there may be fruitful political and sociological—rather than legal—approaches to bolstering the institutional and cultural contexts that can support the production of knowledge and help limit the spread of lies.
Heidi Kitrosser of the University of Minnesota Law School made note of the potentially constructive role that the government’s own “knowledge producers” (like scientists, economists, faculty at public universities, or journalists at public news outlets) could play as a possible source of public knowledge positioned to counter disinformation.
She did caution that this approach raises the question of how these government institutions actually determine truth and whether they can be trusted. But Kitrosser added that through these existing institutions and judicial responses to them, “we actually have some tools to work with that, with some success, try to foster reliability through the harnessing of disciplinary norms, in particular through maintaining a degree of political independence for those in those roles.”
Complete research findings from the “Lies, Free Speech, and the Law” symposium will be published on the Knight Institute research site in the coming months. Meanwhile, those interested in the topic can watch a recording (see below) of the event, which was hosted at the Columbia Law School, and a video of the making of the Lies and the Law art series, as well as review a related collection of short essays and public roundtables on the topic of lies and the law developed in the six months leading up to the symposium.
A. Adam Glenn is a writer/editor at the Knight Institute.