“Flagging Online Falsehoods”

Ned Foley:

The problem with Russia’s use of online platforms was not its foreignness, but its falsity.  To be sure, foreigners—individuals and corporations as well as governments—may be barred from engaging in express advocacy for or against the election of an American candidate (“Vote for Smith,” “Vote against Jones,” and the functional equivalent of such express electioneering).  That’s because foreigners are not American members of “our national political community” (to quote the relevant court decision on this point) and can be barred from participating directly in America’s elections.

 

But much of the messaging that apparently came from Russian sources did not involve direct electioneering.  Instead, it involved political topics in general—race relations, immigration, gun regulation, and so forth—rather than the election of candidates.  While these messages were intended to affect election outcomes, that alone doesn’t make them electioneering for First Amendment purposes.  If these generally political, but not specifically electoral, messages were sent by Americans, and if they were not demonstrably false, then they would be fully protected by the First Amendment.  It would not matter their point of view: for gun control or against, pro-choice or pro-life, liberal or conservative, or whatever.  This would be so whether these political messages were in print or online.  And if it turned out that the same generally political, but not specifically electoral, message had a foreign rather than American author, that fact alone would not change the message’s protection under the First Amendment.

I fundamentally disagree with Ned that the problem is falsity, and I hope I can write something about this soon.

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