Opinion | Does Free Speech Protect Trump’s Election Lies?

In recognition of the challenges posed to existing interpretations of the protections of the First Amendment, Hasen has called for adoption of a set of measures

that implicate First Amendment concerns including disclosure of the funders of both online ads and mass coordinated activities aimed at influencing elections; labeling deep fakes and other synthetic media as “altered”; tightening the ban on campaign expenditures by nonmedia foreign persons, entities and government; and enacting a narrow ban on empirically verifiable false election speech.

In an essay published last night on Slate, “U.S. v. Trump Will Be the Most Important Case in Our Nation’s History,” Hasen wrote:

“The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.”

Hasen predicted that when tried, Trump will assert First Amendment defense, including his right to make false claims. But, Hasen argued:

“Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.”

Francesca Procaccini, a law professor at Vanderbilt, shares the view that in the contemporary political environment, there needs to be more regulation of speech. In an email, she wrote:

The left is split on how to respond to misinformation precisely because the left is historically committed to free speech and also to uplifting marginalized voices. It was once true that these concerns overlapped (the people’s voices who were being silenced were marginalized voices), but the script has become more complicated. Now, many on the left have increasingly come to understand that speech itself (whether false speech or hate speech) is also detrimental to marginalized communities.

“For my own part,” Procaccini wrote, “I believe speech and ideas have power, and like anything of great power, they require some democratic oversight.”

“The virality, anonymity and speed of the internet,” she continued, “has fundamentally changed the ‘circumstances’ and the ‘context’ of speech online, justifying different regulations on speech in that environment than we would want to impose in the physical public square.”

Since Citizens United, which effectively freed corporations and unions to spend money on “electioneering communications” and to advocate the defeat or election of candidates directly, “The left has been increasingly skeptical of a maximalist approach to free speech, given how the conservative Supreme Court has used the right to protect and advance conservative policy goals,” Procaccini argued. “Now that first amendment-protected speech quite literally incited a riot and nearly a coup, long-running concerns about the weaponization of free speech appear more salient.”

Catherine MacKinnon, a law professor at the University of Michigan, expanded on the left critique of free speech jurisprudence in a 2020 article, “Weaponizing the First Amendment: An Equality Reading.” MacKinnon argued that:

Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the 20th century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections in the dark.

Freedom of speech, MacKinnon continued,

has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized, the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

Justice Elena Kagan used the phrase “weaponizing the First Amendment” in a 2018 dissent in Janus v. State, County and Municipal Employees.

The majority decision was a devastating blow to public employee unions. It concluded that “states and public-sector unions may no longer extract agency fees (partial union dues) from nonconsenting employees.”