“Do You Have a Right Not to Be Lied To?; The legal thinkers reconsidering freedom of speech.”

Jeff Wise deep dive in New York magazine:

Given the urgency of the threat to democracy, some American legal scholars are arguing that it’s time to explore direct legal penalties for lying. “When you have the level of threat of the Big Lie, undermining our whole understanding of the legitimacy of our voting and electoral systems, we have to ask: What are the parameters, what are the boundaries?” says Catherine J. Ross, a law professor at George Washington University and the author of the 2021 book A Right to Lie? Presidents, Other Liars, and the First Amendment.

Thanks to the sweeping reach of the First Amendment, Ross doesn’t see a lot of ways to write laws against lying, but she does see some. The Court has granted the government leeway in controlling speech related to elections: For instance, in 1992 the Court upheld a law that banned campaigning within 100 feet of a polling place, ruling that the Constitution allows for laws restraining election-related speech. Ross sees some opportunity there and has been working on draft legislation for Washington State that would prohibit election deniers from running for office.

UCLA’s Hasen, who specializes in election law, also sees room to expand legal penalties around election lies. In his 2022 book Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It, he proposes “a narrow ban in empirically verifiable false election speech.” This would prohibit, for instance, lies about when and where people can vote as well as “false statements … such as a false claim that election officials do not count ballots submitted by mail.”

Such a law would not be much of a stretch. Indeed, one such case is already underway. In 2021, a Florida man named Douglass Mackey was arrested and charged with conspiring to deprive individuals of their right to vote after he sent out tweets in 2016 falsely claiming that Hillary Clinton supporters could vote by sending a text. Mackey’s lawyers are trying to get the charges tossed, claiming that they violate his First Amendment rights. Hasen’s proposed law would not punish Trump for lying about the election. “Trump’s lies about the last election being stolen, undermining people’s confidence in the legitimacy of the electoral process — these are contested questions about how the world works,” Hasen says. “Those are not empirically verifiable statements.”

Still, the challenge for these thinkers is how to regulate speech without destroying freedom. The University of Minnesota’s David Schultz, who teaches both election law and constitutional law, sees both the problem and the range of possible solutions in much broader terms. “I’m out of sync with a lot of people,” he says. “I don’t think the Constitution protects the right to lie.”…

There’s an obvious danger here. Eugene Volokh, a professor at UCLA Law School, points out that the power to police malicious misinformation could very easily wind up in less scrupulous hands. “If we try to set up a new system where the government can punish people for lying about elections, or whatever else, at some point it’s going to be run by Donald Trump or whoever else is bad,” he says.

This line of reasoning takes us back to “the best answer to bad speech is more speech.” If we don’t give anyone the dangerous power to judge truth from lies, they won’t be able to abuse it. Instead, let people debate and sort things out collectively. Or as Holmes put it in his 1919 Abrams descent, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

But this idea presupposes that the participants in the marketplace will operate in good faith. If they don’t, the mechanism for sorting good from bad will break down. Just as customers in a rigged commercial market are liable to be fleeced, participants in a corrupt marketplace of ideas will get duped. “The ‘marketplace of ideas’ approach does not match up very well with our current world, where we know that the truth doesn’t rise to the top,” Hasen points out. “Otherwise there wouldn’t be 65 percent of Republicans believing that the last election was stolen.”

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