Governmental actions to restrain campaign falsehoods include federal and state statutes and judicial intervention. The article offers a taxonomy of campaign falsehoods and the different harms various kinds of falsehood generate and examines statutes adopted in sixteen states aimed at false speech about candidates, this article argues that efforts to control false speech about candidates (whether positive about the speaker or falsely negative about the opponents) face insurmountable First Amendment obstacles, as every court to consider such a statute has concluded. If the government becomes the arbiter of truth or falsehood, it is engaging in content-based regulation. Moreover, the article demonstrates how difficult it is for even a court to agree on what amounts to a verifiable lie. The dangers of emerging technology, social media, and culture that were so apparent in the 2016 election do not fundamentally diminish the strength of the First Amendment principles that forbid the state from labelling speech as true or false.
GW Paper Series
GWU Law School Public Law Research Paper No. 2018-49; GWU Legal Studies Research Paper No. 2018-49
Ross, Catherine J., Ministry of Truth? Why Law Can’t Stop Prevarications, Bullshit, and Straight-Out Lies in Political Campaigns (2017). Catherine J. Ross, Ministry of Truth? Why Law Can’t Stop Prevarications, Bullshit, and Straight-Out Lies in Political Campaigns, 16 First Amend. L. Rev. 367 (2017). ; GWU Law School Public Law Research Paper No. 2018-49; GWU Legal Studies Research Paper No. 2018-49. Available at SSRN: https://ssrn.com/abstract=3271353