Free Speech and Free Press in the Age of Disinformation

By Bobby Desmond – October 09, 2024

The Importance of First Amendment Protections

The First Amendment’s protections of religion, speech, the press, assembly, and petition are not only essential to the pursuit of happiness by each person, individually, but also to the proper functioning of a republic governed by the people as a whole.

Concerns Regarding Free Speech

Admittedly, speech can have negative consequences. The following is a non-exhaustive list of concerns commonly raised by lobbyists and legislatures when attempting to restrict speech:

• The unintentional spread of false information, also known as “misinformation.”
• The intentional use of false information to mislead, also known as “disinformation.”
• The intentional weaponization of false information to cause harm, known as “defamation.”
• The unintentional disclosure of private information, such as data leaks.
• The intentional and unauthorized access of private information, such as data breaches and intrusion upon seclusion.
• The intentional disclosure of private information to cause harm, such as nonconsensual dissemination of intimate images and public disclosure of private facts.
• The intentional and unauthorized use of name, image, and likeness rights and intellectual property.
• The use of speech that is integral to illegal activities such as extortion, conspiracy, and solicitation.
• The recordation of illegal activities such as child sexual abuse materials.
• The disclosure of government secrets.
• The incitement of or threatening to engage in imminent violence, such as urging a mob to attack a nearby building or threatening the life of an elected official.
• The intentional obstruction of government actions such as filing false elector certifications.

Government Restrictions on Free Speech

Undoubtedly, in some instances, the government may have a compelling interest to use the least restrictive means necessary to prevent the harms of certain historically unprotected areas of speech. In other instances, the government should more finely distinguish between thought, expression, and action to carve out suitable space where only specific criminal activities are prosecuted, while the mere exercise of religion and speech rights is left uninhibited. It is the government’s constitutional obligation to ensure that its means are sufficiently narrowed, its interests sufficiently compelling, and its restraints sufficiently distinguishable and clear.

Civic Responsibility in Countering Harmful Speech

As citizens of this great nation, it is our civic duty to take whatever additional measures may be necessary to further reduce the adverse influences of false information and other forms of harmful speech on our own lives rather than relying on the government to constrain protected speech that we disagree with or otherwise disfavor. It is high time that we return to the principled doctrine of counter-speech and resume curtailing misinformation, disinformation, and other harmful speech by speaking our piece rather than by passing laws that require others to hold their peace. Speech should never be compelled or confined if further discourse would expose falsehoods or otherwise remedy the harm caused by that speech.

The Spread of False Information by Traditional Media

It is no secret that false information is often included in print, online, broadcast, and cable news—whether by accident, mistake, misunderstanding, negligence, recklessness, or intention. In an ideal world, the news would be completely objective, and there would be a clear delineation between reporters, commentators, and entertainers. However, people are deeply flawed and inherently imperfect.

Defamation Law and Media Accountability

Defamation law currently provides a reliable (though not always satisfactory) check when reporting includes misinformation or disinformation. For example, defamation claims have been successfully brought in recent years against:

1. InfoWars host Alex Jones for his lies about the Sandy Hook shootings.
2. Fox News for the lies of its anchors, reporters, and pundits about the reliability of certain voting machines in the 2020 election.
3. CNN for its portrayal of high school student Nicholas Sandmann engaged in a March for Life rally as a racist.

Challenges with Defamation Law

Proving the elements of a defamation claim for disinformation is fairly straightforward because the false information is published with the intention to mislead. A defamation claim for misinformation is somewhat harder to prove because the false information is spread unintentionally, but the elements may still be proven by showing a lesser mens rea. Most plaintiffs must show that the speaker was at least negligent as to the falsity of the statement, but public figures must show that the speaker had actual malice—that is, knowledge of or reckless disregard for the falsity of the statement.

Exercising Free Speech Rights on Social Media

Social media is not a haven for free speech. While the First Amendment prohibits the government from restricting speech, social media platforms can freely choose what speech to solicit or ban, what posts to promote or demote, and whether to allow or deactivate comments on posts. Platforms are given free rein to determine whether certain users should be included in lists of suggested accounts, given access to the platform without special promotion, or deplatformed entirely.

Political Viewpoint and Social Media Moderation

Many prominent influencers have criticized various platforms for making discriminatory moderation decisions based on political viewpoints. Advocates of government regulations for social media platforms support plans requiring political neutrality, conspicuous disclosure of content policies, and transparent appeals processes.

The Special Case of Sexually Oriented Speech

In recent years, there has been a resurgence of legislative constraints on websites allowing users to post sexually oriented speech. Laws such as FOSTA and SESTA were intended to fight online sex trafficking but have had a chilling effect on protected speech. Platforms have preemptively banned sexually oriented speech to avoid liability, stifling free expression in the process.

Conclusion

Politics are inarguably creating a schism across the country, and our ideological differences are magnified by the traditional media we consume and the social media platforms we visit. Nonetheless, Americans agree that a thriving democracy requires freedom of thought, freedom of expression, and freedom of the press. While we celebrate our founding fathers for enshrining protections of these rights in the First Amendment, we must challenge laws that limit these rights and foster a free and fair marketplace of ideas.