False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation

False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation

August 1, 2022
False Speech and the First Amendment: Constitutional Limits
on Regulating Misinformation
Federal and state legislators have expressed interest in
honors system. Two Justices agreed in a concurring opinion
regulating online misinformation and disinformation. Such
that the law was unconstitutional, although they applied an
regulatory efforts may implicate the U.S. Constitution’s
“intermediate” level of constitutional scrutiny. The
First Amendment. The Supreme Court has said the Free
concurrence suggested laws might satisfy intermediate
Speech Clause protects false speech when viewed as a
scrutiny if they regulate “a subset of lies where specific
broad category, but the government may restrict limited
harm is more likely to occur.”
subcategories of false speech without violating the First
Amendment. For example, defamation, fraud, political
Existing Prohibitions on False Speech
advertisements, and broadcast speech are subject to special
Although content-based laws generally trigger strict
considerations. This In Focus highlights some relevant
scrutiny, possibly including laws regulating false
constitutional considerations in crafting new regulations of
statements, the Supreme Court has historically allowed
false speech.
certain limited categories of speech to be regulated based
on their content. These categories include defamation and
First Amendment Protections for False
fraud, both of which entail false speech. Apart from these
Speech
limited categories, existing federal laws prohibit, for
The Supreme Court has recognized that false statements
example, perjury or making certain materially false
may not add much value to the marketplace of ideas. Even
statements to government officials. Other federal laws
so, there is a concern that by prohibiting false speech, the
address misrepresentations in political advertising or in
government would also “chill” more valuable speech,
broadcast media.
meaning it would cause people to self-censor out of fear of
violating the law. Consequently, the First Amendment
Defamation
creates “breathing space” protecting the false statements
Although the particulars of defamation claims vary state by
and hyperbole that are “inevitable in free debate.” New York
state, the common law of defamation historically imposed
Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court has
liability for making certain false statements harming a
suggested the government may not regulate false ideas, and
person’s reputation if the speaker acted negligently with
even false factual statements receive some constitutional
respect to whether the statement was true. While the
protection.
Constitution allows liability for defamatory statements, the
First Amendment remains relevant in evaluating the
As a general rule, if a law targets speech based on its
standards for proving defamation. In the landmark 1964
expressive content, that content-based regulation will
case New York Times Co. v. Sullivan, the Supreme Court
trigger strict scrutiny analysis. Under strict scrutiny, a law
ruled that statements about public officials enjoy
is presumptively unconstitutional unless the government
heightened constitutional protection from defamation
can show the challenged law is the least restrictive means of
liability. Public officials cannot win a defamation case
targeting speech while also serving a compelling
unless they show an allegedly defamatory statement “was
governmental interest. Courts have sometimes extended this
made with ‘actual malice’—that is, with knowledge that it
general principle to laws regulating false speech and
was false or with reckless disregard of whether it was false
concluded that laws prohibiting lies about a certain topic
or not.” The actual malice standard also extends to
trigger strict scrutiny.
defamatory statements about public figures, and lesser
constitutional protections apply to defamatory statements
The Supreme Court, however, has split on the exact level of
on matters of public concern. In addition, lower courts have
scrutiny applicable to false speech regulation. In United
long held that the First Amendment requires a heightened
States v. Alvarez, 567 U.S. 709 (2012), the Supreme Court
standard before certain speech distributors such as
invalidated the Stolen Valor Act, a federal law prohibiting
bookstores may be held liable for circulating material with
false statements about receiving military decorations or
defamatory statements.
medals. The four-Justice plurality opinion clarified “that
falsity alone may not suffice to bring the speech outside the
Fraud and False Commercial Speech
First Amendment.” Thus, the plurality opinion applied strict
The common law of fraud imposes liability on a person
scrutiny to the Stolen Valor Act as a content-based law. The
who makes a fraudulent misrepresentation for the purpose
Court held that the law was not sufficiently narrowly
of inducing someone else to act, detrimentally and
tailored: It punished false statements regardless of the
justifiably, in reliance on that material misrepresentation.
context or purpose. There was no “direct causal link”
Federal and state governments have also enacted various
showing the law’s broad scope was necessary to the
statutes punishing specific types of fraud. For example, in
government’s goal of protecting the integrity of the military
1948 the Supreme Court easily rejected a First Amendment
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False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation
challenge to federal laws prohibiting mail fraud. Donaldson
or fraud could be unconstitutional if they make further
v. Read Magazine, Inc., 333 U.S. 178 (1948). The Court has
viewpoint-based distinctions or certain types of speaker- or
cautioned, however, that the government may not avoid
content-based restrictions.
First Amendment scrutiny by “simply labeling an action
one for ‘fraud.’” Illinois ex rel. Madigan v. Telemarketing
Supreme Court precedent has largely upheld regulations of
Associates, 538 U.S. 600 (2003).
false speech only if they fall within these limited categories
of defamation or fraud. Alvarez leaves open some
Beyond the category of common-law fraud, the Supreme
uncertainty about how courts should review laws regulating
Court has also said that false or misleading commercial
other types of false speech, although both opinions suggest
speech may be prohibited. For constitutional purposes,
some level of heightened scrutiny would apply. Thus, for
commercial speech is speech that does no more than
example, a number of lower courts have applied strict
propose a commercial transaction or that relates solely to
scrutiny to strike down state laws regulating false
the speaker’s and audience’s economic interests.
statements in political advertisements. One federal appeals
Accordingly, the Federal Trade Commission (FTC) and the
court struck down an Ohio law prohibiting reckless false
Federal Communications Commission (FCC) can regulate
statements about candidates in campaign materials,
deceptive commercial speech without violating the First
emphasizing that the law too broadly swept in non-material
Amendment. For instance, during the COVID-19 pandemic,
statements and intermediaries who merely transmitted
the FTC sometimes sent cease-and-desist letters to
others’ statements. Susan B. Anthony List v. Driehaus, 814
companies falsely advertising that their products treated or
F.3d 466 (6th Cir. 2016). In contrast, other lower courts
prevented COVID-19.
have upheld laws they believed were more narrowly
tailored to a compelling state interest, such a federal law
Campaign Speech
prohibiting impersonating a federal officer. United States v.
A number of federal laws relate to truthfulness in elections.
Bonin, 932 F.3d 523 (7th Cir. 2019).
For instance, federal law prohibits false statements related
to voting eligibility, fraudulent misrepresentation of
The Alvarez concurrence suggested regulations may be
authority to act for a federal political candidate, and
constitutional if they closely target lies likely to cause
knowingly defrauding state residents of a fair election by
specific harms. In this vein, commentators advocating
procuring materially false ballots. The Federal Election
misinformation regulation have sometimes cited Supreme
Campaign Act (FECA) also imposes disclaimer
Court dicta suggesting the First Amendment would not
requirements on certain political campaign advertisements:
protect a person who caused a panic by falsely shouting
for example, requiring them to identify funding and
“fire” in a theater. However, that dicta has not been applied
authorizing sources. For more information on these FECA
as binding precedent.
requirements, see CRS In Focus IF11398, Campaign
Finance Law: Disclosure and Disclaimer Requirements for
Alvarez and lower court cases suggest a court’s
Political Campaign Advertising, by L. Paige Whitaker. The
constitutional inquiry, even when it does not apply strict
First Amendment sometimes treats disclaimers differently
scrutiny, may consider whether there are less-speech-
than prohibitions, viewing some advertising disclosures as
restrictive alternatives to a challenged false-speech
less speech restrictive. Accordingly, the Supreme Court has
regulation. For instance, in evaluating a prohibition on
upheld many of FECA’s disclosure provisions under a
private speech, courts may ask whether a less restrictive
heightened scrutiny standard.
disclosure requirement could serve the government’s goal.
Courts may also require some heightened mental state to
Broadcast Media
ensure mistaken speech is not unduly restricted—similar to
Broadcast television and radio are subject to special
requiring actual malice in certain defamation claims.
restrictions. Federal regulations require broadcast stations
to identify sponsors of paid content, for example, and
Additional CRS Resources
prohibit knowingly broadcasting false information about a
For more information on the categories of “unprotected”
crime or catastrophe causing substantial public harm. Based
speech, see CRS In Focus IF11072, The First Amendment:
on standards requiring licensees to serve the public interest,
Categories of Speech, by Victoria L. Killion.
the FCC has also said broadcasters may not intentionally
distort the news. While the Supreme Court has not
For an exploration of policy considerations related to
specifically considered the constitutionality of these false-
regulating social media and misinformation, see CRS
speech restrictions, the Court has long said the First
Report R46662, Social Media: Misinformation and Content
Amendment allows more regulation of broadcast content
Moderation Issues for Congress, by Jason A. Gallo and
than other types of media. At the same time, federal law
Clare Y. Cho. For a discussion of First Amendment
instructs the FCC to avoid censorship.
concerns related to regulating online content moderation, as
well as the special treatment of broadcast media, see CRS
New Regulation of False Speech
Report R45650, Free Speech and the Regulation of Social
A critical consideration in regulating false statements is the
Media Content, by Valerie C. Brannon.
law’s scope. In particular, if the government says it is
targeting defamation or fraud, courts have struck down
Valerie C. Brannon, Legislative Attorney
broad prophylactic laws that are not limited to those narrow
categories. Further, even laws that only restrict defamation
IF12180
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False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation

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