First Amendment Limits on State Laws Targeting Election Misinformation, Part II
This is part II in a series of posts discussing First Amendment Limits on State Laws Targeting Election Misinformation, 20 First Amend. L. Rev. 291 (2022). What follows is an excerpt from the article (minus the footnotes, which you will find in the full PDF).
Despite public outcry over the rise of misinformation in political campaigns, there is little federal regulation of the content of election-related speech. Other than in the context of campaign finance, federal law is largely absent in this space. Federal laws governing political speech focus primarily on advertising, but even with regard to advertising existing federal law is minimal and directed largely at traditional mediums of communication such as broadcast and print. Although federal agencies like the Federal Trade Commission (FTC) have “truth in advertising” laws that target false or misleading content in advertisements, those laws apply only to advertisements affecting “commerce,” which the FTC has interpreted as precluding its ability to regulate the content of political advertisements.
The states, however, have not held back. Beginning in at least 1893, when Minnesota criminalized defamatory campaign speech, state legislatures have sought to enact statutes targeting false speech in elections. Today, forty-eight states and the District of Columbia have statutes that potentially regulate election-related speech, including but not limited to the content of political advertising. These statutes basically take one of two forms: statutes that directly target the content of election-related speech and generally applicable statutes that indirectly implicate election-related speech by prohibiting intimidation or fraud associated with an election.
Before we examine the extent to which the First Amendment may limit state efforts to regulate election misinformation, it will be helpful to get an overview of the breadth and depth of current state laws that purport to address lies, misinformation, intimidation, and fraud in elections. To aid in this assessment, we developed a multi-level taxonomy of the types of speech targeted by the various state statutes. At the most general level, we can divide the statutes into eight categories based on the subject matter the statute regulates: speech about (1) candidates; (2) ballot measures; (3) voting requirements or procedures; (4) source, authorization or sponsorship of political advertisements; (5) endorsements; and (6) incumbency; as well speech that involves (7) intimidation; and (8) fraud or corruption. The top-level categories are not exclusive and many statutes fall within more than one category.
We also further divided each category based on the level of knowledge or intent, if any, the statute requires before liability attaches. For example, some statutes require that the false speech be made knowingly or with reckless disregard as to the truth of the statement. Other statutes impose liability if the spea
Article from Reason.com