In the last six years, confidence in our fragile election system in the United States has been battered by a flood of election misinformation and disinformation spread on social media, cable television stations, podcasts, and videos. Headed into the 2022 elections, now is the time for Congress and states to pass meaningful reforms to shore up that confidence and help preserve American democracy. Although partisan gridlock and fights over the fairness of the 2020 election already make new legislation a longshot, the biggest impediment may well be a supermajority of conservative justices on the Supreme Court, whose part-time libertarian views of the First Amendment could doom meaningful reform.
As I argue in my new book, Cheap Speech, false claims about the fairness and integrity of the American election system pose a huge risk for American democracy. As millions of Trump supporters continue to believe the false claims that the 2020 election was stolen, and as false and incendiary election-related speech flows anonymously and virally across portions of social media, public confidence in the fairness of our election system has crumbled among Republicans. With purveyors of the Big Lie poised to take over the running of elections in some places before the 2024 elections, we can expect confidence on the left to take a similar beating. A democracy cannot function without fair elections and when losers do not accept election results as legitimate….
Some of the laws I propose in Cheap Speech could likely pass constitutional muster, such as a ban on false election speech about when, where, and how people are meant to cast their votes. These laws protect the public’s compelling interest in assuring voters can meaningfully exercise the franchise. Already the federal government is prosecuting a Trump supporter for social media posts targeted at Black voters falsely telling people they could vote for president by text. The Supreme Court wrote in a 2018 case, Minnesota Voters Alliance v. Mansky, that “We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”
Many necessary laws to support election integrity, however, would be at risk of being held unconstitutional by a Supreme Court that often adopts a naïve libertarian “marketplace of ideas” approach to the First Amendment that presumes without evidence that the truth will rise to the top.
For example, our current laws requiring disclosure of funding of large-scale campaign activity are woefully inadequate. Today, if someone runs a television ad supporting a candidate for president or Congress coming through on a cable television box or DirecTV satellite feed, federal law requires disclosure of the ad’s funders. But if that same ad comes through Hulu or YouTube TV or appears via Facebook, the ad is not covered unless it explicitly calls for a vote for or against a candidate because our laws have not been updated to deal with technological change.
For many years, even many conservatives on the Supreme Court such as the late Justice Antonin Scalia recognized the value of campaign finance disclosure in not only ferreting out corruption but also insuring that busy voters have useful information to judge election-related messages they receive. Scalia famously wrote in a 2010 case that a system in which people can hide their identities while engaging in political activity “does not resemble the Home of the Brave.”…
But Justice Clarence Thomas—yes, the same Justice Thomas who believes that virtually all campaign finance laws violate the First Amendment—recently went out of his way in a case not presenting the issue to raise support for new laws, such as one passed last year in Florida, that would require social media companies to carry the content of politicians they do not like, even if those politicians support election violence or undermine voter confidence in the integrity of the electoral process. Justice Thomas has suggested that social media platforms are like telephone companies that could be subject to “must carry” provisions and cannot discriminate among customers based upon their political views.
But social media companies are much closer to newspapers and TV stations than telephone companies. The former but not the latter curate content all the time, and they can decide who appears on the platform and how. Justice Thomas appears to believe in the freedom of FOX News or the Atlantic to create a coherent brand with a message, but not Twitter or Facebook.
It is hard not to conclude that Justice Thomas was motivated toward this anti-libertarian position requiring private companies to carry speech they would rather not include on their websites because doing so would favor Donald Trump and those like Trump.
And perhaps that affinity for Donald Trump and his ideas explains why Justice Thomas and Justice Neil Gorsuch have expressed a willingness to rethink the Supreme Court’s key holding in the 1964 case of New York Times v. Sullivan, a case which launched a line of First Amendment decisions making it very difficult for public officials and public figures to sue for defamation. The “actual malice” standard set forth in the case—which requires a defamation plaintiff to prove that a journalist or other speaker made a statement with knowledge of its falsity or with reckless disregard as to its truthfulness—has protected journalists and assured that the public can get the information it needs to evaluate candidates for office and others involved in the political process.