The Big Lie took a beating in the midterms. Of the six 2020 election deniers vying to take control of a battleground state’s election systems, not a single one was victorious. But democracy isn’t exactly safe from being undermined by a campaign of falsehoods orchestrated by Donald Trump, who is trying to retake the White House. In response to Trump’s ascent and other challenges across the world to shared truths that stitch together societies, some scholars have begun to argue that it’s time to reconsider the meaning of freedom of speech. “The question is gaining traction among legal academics,” says Richard Hasen, a professor at UCLA Law School.
It’s a fraught undertaking, to be sure. In the United States, the First Amendment protects speech to a degree rare elsewhere in the world. But these are extraordinary times. It’s not just that lies have become more common in the age of MAGA, perverting the public’s ability to make informed decisions. It’s also that the societal norms holding lies in check have faded. “Trump has made it more fashionable to lie,” says David Schultz, a law professor at the University of Minnesota Law School, “and there seem to be few political or legal consequences for lying.”
A leading figure reassessing the freedom of speech is Oxford University professor Lani Watson, who last year published The Right to Know: Epistemic Rights and Why We Need Them. She argues that free speech is just one part of a broad human right to receive and transmit accurate information, as laid out in Article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas.” Imparting and receiving information are both crucial in making the decisions that affect our personal welfare. That means that as well as a right to free speech, we have a right not to be lied to, Watson argues. “We need to redefine the discourse around rights,” she says. “We need to expand it.”
Watson’s work was spurred in part by her own country’s version of Trumpism, the Brexit movement, which flooded the United Kingdom with lies in the run-up to the 2016 vote to leave the European Union. The fact that the lies — such as that the U.K. was sending “350 million pounds per week to the European Union” — were rewarded with victory has left a toxic legacy that made a polluted information environment even worse. “The tabloid press in the U.K. is a beast,” Watson says. “A horrible, disgusting beast.”
The unchecked proliferation of lies doesn’t just mislead people into making bad decisions, this school of thought goes; it leads to cynicism and disengagement by undermining the idea that there is even such a thing as truth. The public sphere becomes a maze of fun-house mirrors. As Hannah Arendt wrote in The Origins of Totalitarianism, “In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true.” This is the topsy-turvy epistemology that accepts that the Clintons were running a child sex-slave ring out of the basement of a pizza parlor.
The Anglo-American tradition of free speech goes back centuries and during most of that time, information propagated no faster than a horse could gallop. We don’t know whether those traditions formed can handle today’s immersive misinformation ecosystem. Conservative talk radio, Rupert Murdoch–owned news outlets, and social media form a hermetic bubble in which a relentless drumbeat of lies is constantly reinforced. “As we talk about rights of speech and the press, one side of the debate has all of the boxing gloves and the best training and the best coaches,” says Watson. “And on the other side, we don’t have the gloves, we don’t have the equipment, we don’t have the resources to punch back. By talking about rights on both sides of the debate, I think we can get into a fairer fight.”
The idea of balancing free speech with other rights is a tougher sell on this side of the Atlantic. Though the Universal Declaration of Human Rights was written by a U.S. commission headed by Eleanor Roosevelt, it has no force of law, and the U.S. does not have a tradition of broadly protecting the right “to seek and receive” information. The First Amendment is blunt: “Congress shall make no law … prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” Basically, we have a pretty sweeping right to say whatever we want without government interference.
The current understanding of free speech rests on the framing set forth by Justice Oliver Wendell Holmes, who in 1919 invoked the “marketplace of ideas” in his dissent to the Abrams v. United States decision. Holmes wrote, “The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought itself to get itself accepted in the competition of the market.” This idea is sometimes reformulated by free-speech absolutists as “the best answer to bad speech is more speech.”
Since Holmes’s day, the Court has doubled down on that view. In 1969’s Brandenburg v. Ohio, it ruled the government could not punish inflammatory speech unless it directly caused or incited “imminent lawless action.” U.S. v. Alvarez, which came before the Court in 2012, concerned a man who had violated the Stolen Valor Act by lying about his military record. The Court sided with Alvarez and threw the law prohibiting lies about military service out as unconstitutional. What the decision meant, says Alexander Tsesis, a law professor at Loyola University Chicago, is that if “nobody’s trying to get monetary remuneration, then their right to speech is the same as when they say the truth. Lies are protected as much as truth.”
There are exceptions. You’re not allowed to lie when engaging in what’s called “commercial speech” — you can’t, for example, claim your baked beans cure cancer. Other lies that are not considered “protected speech” include defamation, perjury, and fraud. (Parenthetically, Trump is currently in legal jeopardy for all three: He’s being sued for defamation by E. Jean Carroll; the Trump Organization is being sued for fraud by New York State; and a federal judge has ruled that Trump signed legal documents pertaining to the 2020 election that he knew were false, which puts him at risk of prosecution for perjury.)
To the extent that right-wing lies have been punished, it’s generally when they have wandered into these unprotected areas. Alex Jones, for instance, is on the hook for over a billion dollars in damages after he defamed the parents of Sandy Hook victims. And Fox News’ false claims about Dominion Voting Systems are under scrutiny in a defamation trial in which Dominion is asking for $1.7 billion in damages.
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.”
For example, Schultz points to the Fairness Doctrine. From 1949 until 1987, the Federal Communications Commission required broadcasters to cover controversial topics and to devote airtime to differing viewpoints. The FCC didn’t specify how the stations had to carry that mission out — whether through editorials, interviews, or other types of programming — and it didn’t require that the amount of coverage be strictly equal. Enforcing such necessarily amorphous rules posed obvious challenges, but on the balance the FCC managed to keep things in check. It was after the Fairness Doctrine was scrapped by the Reagan administration that one-sided conservative talk radio, led by Rush Limbaugh, ran rampant across the country. Schultz would like to bring back the Fairness Doctrine for broadcasters and extend a similar kind of oversight to social-media platforms. “There has to be serious enforcement of laws that regulate lying and politics,” he says.
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.”
And that failure to sort truth from lies presents its own dangers. In 1945, as a Europe freshly scoured of fascism lay in smoldering ruins, the Austrian philosopher Karl Popper described how unconstrained free speech can lead to its own extinction: “If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”
Just as Popper feared, the current rules in the U.S. have empowered — or, at least, not prevented — the rise of a sort of semi-fascism. But it’s possible to change the rule without threatening other freedoms. We know this is possible because other free countries have established rules to protect their marketplaces of ideas. Canada, the U.K., and Germany all have laws against hate speech, and they enforce them. In March, German police raided about 100 homes across the country, seizing electronic devices used in the dissemination of “hate speech, insults, and misinformation.” Those prosecuted and found guilty were fined. The crackdown was spurred in part by the murder of a popular politician by a neo-Nazi in 2019.
Has the purging of dangerous political speech made Germany less democratic? The evidence is that it has not. The country ranks No. 15 on the Economist’s Democracy Index and is rated as a “full democracy”; the U.S. ranks No. 26 and is rated as a “flawed democracy,” having been downgraded from full democracy in 2016 with the election of Donald Trump.
As that presidency has made clear, Americans do not have some special characteristic that makes us immune to the siren song of fascism. The legal ideas propounded by Hasen, Schultz, Watson, and Ross would offer some protection against that tendency. While neither the legal profession in general nor the Supreme Court in particular is close to sharing their point of view, if the urgency of the matter eventually comes to seem urgent enough, it’s possible to imagine that both could eventually shift in that direction.