Should All Political Speech Be Protected, Whether True or False?
What does the Constitution say about political speech? Does the Constitution state that all political speech protected against Government restrictions, even if it is shown to be “false and misleading”?
The Constitution’s protection of free speech in the First Amendment is one of the most central rights of the people in our Democratic Republic. However, the Supreme Court has ruled in many cases that no right provided in the Constitution is an absolute right. In many cases involving the First Amendment’s protection of speech, the Court has ruled that even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content, if (1) the speech is determined to be false or misleading, and (2) the restriction passes the “strict scrutiny” test (i.e., if the Government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”).
Through the decades, there are several types of speech that have met this standard, and are not protected from being limited by the Government, if proven to be false. These types of speech are: obscenity, child pornography, speech that constitutes what has become widely known as “fighting words”, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), public employees’ speech and commercial speech.
The Supreme Court has determined that commercial speech may be banned if “it is false or misleading, or if it advertises an illegal product or service”. Multiple Court decisions have made it clear that regulations designed “to protect consumers from misleading, deceptive, or aggressive sales practices” will generally be given a favorable review by the Court as it is a compelling interest. Compelling interest is one of the key elements of passing the test of “strict scrutiny” described above. The other key element is that the restrictions in the law are shown to be “the least restrictive” means to achieve the stated interest. In practice, this means that the Government must convincingly demonstrate that the speech restrictions in the law are “not more extensive than is necessary” to serve the stated Governmental interests.
Note: The summary of the Supreme Court decisions on restricting speech above, and the specific statements included in the quotes in the article, are excerpted from a publication from the Congressional Research Service entitled “Freedom of Speech and Press: Exceptions to the First Amendment, authored by Kathleen Ann Ruane, Legislative Attorney, published on September 8, 2014.
What does the Constitution say about political speech? Is all political speech protected against Government restrictions, even if it is shown to be “false and misleading”? The Constitution protects elected officials from being held accountable for any speech they make on the floor of the Senate or the House of Representatives (Article 1, Section 6). But it does not explicitly provide the same protection for the speech of members of Congress outside of Congress; or of the President, Vice President and appointed members of the Administration; or of any candidate for an elected office.; or of any political party, special interest group or political action committee. Thus, the restriction of false political speech could perhaps be acceptable under the Constitution if both standards of “strict scrutiny” are met.
The First Test: is there a “compelling interest” in the restrictions on political speech that is “false and misleading”?
To answer this question, we need only consider how the Big Lie about a fraudulent and stolen election in 2020 has led to a major percentage of the population believing that existing election processes are rigged, and election officials corrupt in the performance of their roles, without evidence or due process to support such claims. The acceptance of these “false and misleading” messages, made by many elected officials and candidates, has resulted in attacks and threats to election officials and to the violence at the Capitol on January 6, 2021 in an attempt to Stop the Steal by stopping or overturning the certification of the national vote result by the voters in Congress. It also led, apparently, to the submission of fraudulent slates of Presidential electors from several states, and to the enactment of new laws to make registration and voting processes more secure and less fraudulent, without one piece of factual, truthful evidence of a meaningful level of fraud nor identifying the sources, ignoring the rule of law and due process. Certainly, preventing these kinds of illegal acts against our key democratic institutions is a clear “compelling interest” for Government restrictions of political speech that is “false and misleading” and made outside of the halls of Congress.
In addition, consider that so many of these political messages in the recent 2022 midterms included “false and misleading” statements and messages about the causes of issues, the records of candidates or parties, the beliefs of competing candidates, and the promises of benefits for voters that don’t have any basis in objective, unbiased fact. Citizens are bombarded essentially every day with false and misleading political messages from both parties and many political interest groups, which is magnified during election year campaigns. Such messages cannot be designed for any other purpose other than to unfairly manipulate the beliefs about solutions to national problems and the choice of candidates to solve the problems.
Surely there is no greater “compelling interest” in a democracy than ensuring that citizens are not unfairly manipulated in their beliefs about solutions and the choice of elected officials to govern the country.
Recently, there was a report on businessinsider.com that Facebook announced that its fact-checkers were reportedly instructed not to fact-check former president Donald Trump, because he's now deemed a politician under Facebook's rules, which exempts him from fact-checking. Facebook, which is the preferred source of news for millions of citizens, has independently determined that politicians are exempt from fact-checking. In a memo to CNN reported in the article, Facebook stated that “We define a 'politician' as candidates running for office, current office holders – and, by extension, many of their cabinet appointees – along with political parties and their leaders … This includes the words a politician says as well as photo, video, or other content that is clearly labeled as created by the politician or their campaign."
This is incredibly dangerous to our democratic institutions. We can expect to see photos, memes and videos doctored to show a candidate making statements they never made, perhaps in locations and in situations that were totally made up, with no objection from Facebook in distributing such totally false and misleading materials. How can restricting these kinds of totally “false and misleading” activity not represent a “compelling interest” in our democracy?
The Second Test: With a “compelling interest” clearly established, is there an approach to restricting political speech that can meet the standards of “the least restrictive method possible to further the articulated interest”?
The best approach is one that has also been proven to be effective and minimally restrictive in decades of being employed in commercial speech. That approach simply requires the originator or speaker of the speech or message to have evidence that the speech or message point(s) are truthful. The responsibility lies with the originator or speaker to ensure that their political speech and messages are truthful. The responsibility of distributors of political speech and messages via their platforms of all types is to review the evidence provided by the originator or speaker and agree that the factual evidence presented adequately supports the points made in the speech and messages.
This process need not be conducted on every single post. But when their platform monitoring determines a post is “going viral”, driven by the sharing algorithms on their platforms, then the originator should be required to present their factual evidence of its truthfulness, or it should be deleted.
So there is no “speech police” group or appointed “arbiter of truth” who makes universal determinations of what is true and false information. The primary responsibility to have factual evidence to support the truth of speech and messages lies with the originator and/or speaker. The secondary responsibility to review the evidence and agree that it adequately supports the speech or message lies with the platform distributing the message. This method has passed the standard of “the least restrictive method possible to further the articulated interest” in restricting false commercial speech, and has been shown to have worked effectively for decades in restricting false commercial speech while supporting true commercial speech. There is every reason to be confident that it is likely to be equally effective and fair in restricting false political speech while supporting true political speech as well.
It has been said that democracy cannot exist without truth. In our constitutional republic, the just powers of government are derived from the consent of the governed. How can we the governed give our consent fairly and without unjust manipulation, if elected officials, political parties, activist groups and candidates seeking our consent can do so on the basis of false and misleading speech and messages?
It is critical to the preservation of our democracy that the requirement that political speech be held to the standard of being truthful, and that false and misleading political speech be restricted, that these provisions be implemented in law immediately, and that such laws be validated by the Supreme Court as being consistent with the interpretations of speech that is protected by the First Amendment.