Constitutional Free Speech Protection of Disinformation in Political Campaigns

Introduction

Election season is upon us. The time when “we, the people,” express our views and cast our votes for those seeking public office, a position of public trust. It is also a time when nearly every day there is a new report about “lies” a political candidate, regardless of party affiliation, has talked about the candidate’s political opponent. Some of the “lies” are, in fact, completely false statements. Other “lies” are only partially untruthful or, after scrutiny, are true statements containing information the public has the right to know. This latter category is clearly protected speech under the First Amendment. This article will focus on the first category and how the First Amendment, as interpreted and applied by the Courts, “protects” political candidates’ “lies” about their opponents. For this article, “lie” is defined to mean “a false statement made with deliberate intent to deceive; an intentional untruth.”

American democracy has, since its inception, been a complex and complicated experiment. An idea whose time had come, the Founders declared that they “…do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; …” (Declaration of Independence). Twelve years later, at the Constitutional Convention on September 17, 1787, the Constitution was approved by the Congressional Congress and on June 21, 1788, it was ratified by the ninth State, New Hampshire, and became the official framework of the United States government. (About The Constitution: FAQs). The Preamble states: “We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (The Constitution of the United States). As a government of, by and for the people of the United States, preserving fundamental freedoms was and continues to be an absolute imperative. One of those fundamental freedoms secured by the First Amendment to the Constitution is the freedom of speech. (Bill of Rights, Amendment I, ratified December 15, 1791.) 

Standards of Political Speech Protection

The supremacy of the Constitution and the court’s authority to test laws against it were established in 1803 by the United States Supreme Court in Marbury v. Madison. Since then, the Supreme Court has examined the protection of free speech in the context of political campaigns, as well as the rights of people to criticize politicians and the government, on numerous occasions. In the seminal case regarding alleged false statements about public officials, New York Times Co. v. Sullivan, the Supreme Court stated: “The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.” Ibid. “The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ (citation omitted).” Ibid. The Court cited Justice Brandeis for the classic formulation of the principle as follows:

‘Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’(Internal citations omitted.)

The Supreme Court also acknowledged that there is no recognized exception for any test of truth, especially one that places the burden of proving truth on the speaker. Ibid,. While acknowledging that state common law claims for defamation have been and remain a remedy for a person whose reputation has suffered an injury in the private realm, the Court has fashioned an “actual malice” test in the case of defamatory falsehoods about public officials and candidates for public office, each of whom is included in the category of public figures. To prove actual malice, the defamed public figure must establish that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Ibid, at 280. Moreover, the defamed public official must prove actual malice with the “convincing clarity which the constitutional standard demands…” which has been interpreted to mean by ”clear and convincing evidence,” a much higher standard than in a typical defamation case. Ibid, at . Furthermore, there must be concrete evidence which “… produce[s] an ‘abiding conviction’ that actual malice is ‘highly probable.” Blankenship v. Trump.

United States v. Alvarez makes clear, however, that the Supreme Court has not endorsed a general rule that “false statements receive no First Amendment protection.” Rather, the Court reinforced that only knowing or reckless false statements are unprotected. In Alvarez, the United States Government’s attempt to regulate intentional false statements or lies failed to survive the Court’s scrutiny under the First Amendment. The Supreme Court held that the Stolen Valor Act, which imposed criminal penalties for, among other things, falsely representing that one has been awarded the Congressional Medal of Honor by the Armed Services, infringed on the First Amendment’s protection of free speech, even though Alvarez, a habitual liar, falsely claimed to have been a marine for 25 years and awarded the Congressional Medal of Honor. The Court recounted those limited instances in which content-based restrictions on speech have been permitted, which include: (i) advocacy intended, and likely, to incite imminent lawless action; (ii) obscenity; (iii) child pornography; (iv) speech presenting some grave and imminent threat the government has the power to prevent; (v) fraud: (vi) perjury; (vii) speech integral to criminal conduct; and (vii) some limited instances for defaming a private figure; and (viii) speech that meets the standards of New York Times Co. v. Sullivan. The Court stated that “[t]he remedy for speech that is false is speech that is true. … The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…” (citations omitted). Ibid., at 727.

The actual malice standard is a subjective one. It is not met by establishing “ill will” or “malice” in the ordinary sense of those terms. “Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of ‘reckless’ disregard cannot be fully encompassed in one infallible definition[,]…the [speaker] must have made the false [statement] with a ‘high degree of awareness of … probable falsity, or must have ‘entertained serious doubts as to the truth of [the statement].” (citations omitted). Harte-Hanks Commc’ns v. Connaughton. A charge of criminal conduct against a public official or candidate, no matter how remote in time or place, is, as a matter of constitutional law, always relevant to his or her fitness for office and thus protected by the First Amendment. Monitor Patriot Co. v. Roy.

The subjective standard applied to the actual malice test enhances the difficulty of proving the required actual malice. One must examine the mind of the speaker at the time the false statement was made to determine if the speaker knew it was false or possessed a high degree of awareness of the probable falsity or had entertained serious doubts about the truth of the statement. Ibid. 

The Supreme Court has given some guidance as to what type of proof will be required. A non-exhaustive list includes:

• Evidence sufficient to permit the conclusion the speaker had a high degree of awareness of the probable falsity of the statements.
• Evidence sufficient to permit the conclusion that the speaker, in fact, entertained serious doubts as to the truth of his statements. Publishing a statement with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice
• The false statements are fabricated by the speaker, the product of the speaker’s imagination based wholly on an unverified anonymous telephone call, or are so inherently improbable that only a reckless man would have circulated them.

Clearly, these types of cases will be decided on the basis of the facts and evidence presented in each case, i.e., a case-by-case analysis, and the appellate courts are required to conduct an independent review to ensure that the record contains clear and convincing evidence of actual malice and the actual malice standard was correctly applied. Harte-Hanks Commc’ns v. Connaughton, at 686; Bose Corp. v. Consumers Union of United States, Inc., at 499, 503.

Conclusion

In Bose Corp. v. Consumers Union of United States, Inc., at pages 503-504, the Supreme Court stated that “[t]he First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty—and thus good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. Under our Constitution ‘there is no such thing as a false idea. However pernicious an opinion may seem; we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (citation omitted).”  And in St. Amant v. Thompson, the Court noted on pages 731-732 that “…It may be said that [the actual malice] test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity. Concededly, the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher… But to ensure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones…”

An erroneous statement made about a political opponent during political campaigns is to be expected and will be excused so that free speech and public debate have the “breathing room” contemplated by the First Amendment. Garrison v. State of Louisiana. But, a lie is by definition an intentional or deliberate false statement and thus, even under the actual malice standard, clear and convincing proof that the speaker’s false statements made with deliberate intent to deceive should satisfy, at a minimum, the “reckless disregard of whether or not the statement was false” prong of the standard. As Justice Brennan observed in the majority’s opinion in Garrison:

“… Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. …Hence, the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. (citations omitted).”

Since the actual malice test is a subjective standard requiring examination of the speaker’s mind at the time the false statement was made, it will be, in my opinion, a rare case that is successful. With the rise of disinformation spread by public figures, their campaigns, and foreign actors, and the actual misuse of artificial intelligence to create false impressions or narratives, public figures will need to devote substantial resources to monitoring and combatting the lies spread by their political opponents. 

There are many authoritative resources available on this topic. A Google search for legal articles and books on free speech protection of lies will lead you to scholarly articles and books discussing the issues. I encourage you to investigate them.