In many states today, there are laws on the books designed to protect the legitimacy and fairness of elections by barring the knowing or reckless dissemination of demonstrably false statements. Regulating this kind of deliberate deception protects the public against the erosion of First Amendment freedoms – such as the freedom to think and express one’s own thoughts and to meaningfully deliberate in an electoral process free from deliberate efforts to flood the zone of public discourse with confusion and mistrust based on deliberate and provable falsehoods. Some of these regulations, however, have been successfully challenged on First Amendment grounds. In this essay, I contend that using First Amendment doctrine to shield illiberal attacks on the electoral process mocks the democratic values for which that doctrine stands.
Strategies of deception designed to disrupt public discourse in the electoral context constitute a special form of violence against speech and against meaningful engagement in individual and collective deliberation. That is why I call the illiberal speech acts that cause this harm “anti-speech acts.” Properly understood, anti-speech acts lack meaningful expressive content. Their purpose is not to advance opinions or ideas in the service of truth or judgment; rather, their objective is to jam deliberation – to deliberately sow confusion and mistrust – by propagating demonstrably false information upon which others are meant, or are reasonably expected, to rely. Profiting from such false coinage is a fraud upon the public. This danger is particularly acute in a digital communication eco-system where proprietary algorithms funnel and shape political discourse to advance not truth, but profit derived from maximized attention share online.
The burden of this essay is to make as plain as possible why traditional doctrinal reliance upon “more speech” as an adequate response to deliberate falsehoods in the electoral context disserves core First Amendment values and practices in the digital age. Courts that use free speech doctrine to shield those who deliberately or recklessly disseminate demonstrably false statements in pursuit of fraudulent electoral or commercial gain subvert the very values they purport to uphold. Freedom of thought and expression and the continued integrity of the electoral process are served (not hindered) by prudent regulation of anti-speech acts.
Sherwin, Richard K., "Anti-speech Acts and the First Amendment" (2022). Articles & Chapters. 1534.