New clash over old problem of political lies

In the shadow of January 6, 2021, it has to be one of the hottest topics in politics: what, if anything, about the spread of false information in and about US elections. This question has prompted a flurry of controversial attempts to rein in “disinformation” online. (The campaign to respond has also brought up the strange vision of First Amendment organizations accustomed to defending defamation lawsuits.) But as the recent litigation from North Carolina highlights, heed it. Whether on the morning of the new media calls for new measures to restrict lies, we have no shortage of old Laws that prohibit political lying — it’s unclear whether they can survive the close contact of the First Amendment.

court case, Grimmett vs CercostaChallenges North Carolina statute of 1931 that prohibited “publication”[ing] or reason[ing] To disseminate a derogatory report with reference to any candidate in any primary or election, falsifying such report or carelessly disregarding its truth or untruth, when such report is counted or is intended to affect the prospects of such a candidate.” And while the law has been on the books for decades, the plaintiffs allege, the statute has rarely been enforced—unless, the suit claims, the state’s 2020. The candidate who lost the election for attorney general turns it into a sword in a brawl.Two campaigns on the candidates’ comparative record clear a backlog of untested rape kits.

As Professor Eugene Volokh wrote in an occasional draft article – “When are lies constitutionally protected?” Courts are “sharply divided” on the constitutionality of similar statutes, but recent rulings have invalidated them. (There is also a hat tip due to Volokh to flag grimmet The concern, of course, is not that protecting the integrity of elections is not an important government interest, but instead that it is exceptionally difficult to narrowly restrict the avoidance of chilling protected speech.

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Here’s How Justice Stephen Breyer Put It In A Consensus Opinion United States vs. Alvarez, A somewhat confusing split decision in which the Supreme Court affirmed that the First Amendment protects certain false speech: “A false statement in the political arena is more likely to make a practical difference (e.g., asking listeners to vote for speaker). By leading to), “Justice Breuer wrote, “but at the same time criminal prosecution is particularly dangerous (say, by radically altering a potential election outcome) and it more easily results in the censorship of speakers and their views.” Maybe.”

Apparently the US District Court for the Central District of North Carolina agrees: on the strength of grimmet The plaintiffs’ argument, the court, without any explanation, immediately granted a temporary restraining order against the enforcement of the law. A preliminary injunction hearing on August 4 will delve into the parties’ cases in this troubled area in greater detail.

Ultimately, it seems likely that the Supreme Court will be called upon to clarify the limits of a government’s ability to publish false speech outside the traditional confines of defamation and fraud—particularly as a growing number of politicians decry defamation. There is no secret to their desire for laws to target press coverage they consider important. When those cases inevitably come to the fore, we hope that federal courts will approach them with reasonable concern for the dangers in these waters.


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The Technology and Press Freedom Project at the Reporters’ Committee for Press Freedom uses integrated advocacy – a combination of legislation, policy analysis and public education – to protect and promote press rights on issues at the intersection of technology and press freedom, such as That reporter -sources privacy protection, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rotman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Wernicke.

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