First Amendment Limits on State Laws Targeting Election Misinformation, Part V
This is part V 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).
Even if most of the state statutes we reviewed end up being found to be constitutional, their enforcement will not eradicate lies and threats in elections, let alone eliminate the flow of misinformation that is polluting public discourse. The problem is simply too big. Any legislative approach to combatting election misinformation must be part of a broader strategy that seeks to reduce the prevalence of misinformation generally and to mitigate the harms that such speech creates.
Part of the challenge stems from the fact that we may be moving to what Richard Hasen calls a “post-truth era” for election law, where rapid technological change and hyperpolarization are “call[ing] into question the ability of people to separate truth from falsity.” According to Hasen, political campaigns “increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools.” In response to these profound changes, election law must adapt to account for the ways our sociotechnical systems amplify misinformation. Furthermore, we must recognize that legislating truth in political campaigns can take us only so far; there are things that law simply cannot do on its own.
[A.] The Internet Blind Spot
One of the biggest challenges election-speech statutes face is the rise of social media, which have become the modern-day public forums in which voters access, engage with, and challenge their elected representatives and fellow citizens. Although political misinformation has been with us since the founding of the nation, it spreads especially rapidly on social media.
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Although the Internet plays an increasingly important role in political communication and in public discourse generally, there currently is no national strategy for dealing with online election misinformation. The federal government does not regulate the content of election-related speech anywhere other than in the broadcast context, and even as to the broadcast medium federal regulation is limited. Transparency in political advertising gets a little more federal attention, but here again the law is directed at advertising disseminated by broadcast, cable, and satellite providers. Even though more money is now spent on online advertising than print and television advertising combined, federal laws mandating disclosure and recordkeeping requirements do not currently apply to online political ads.
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Complicating matters further, state efforts to reduce election misinformation on social media are limited by Section 230 of the Communications Decency Act, which prohibits the enforcement of state laws that would hold Internet platforms liable for publishing speech provided by a third party (including advertising content). As a result, although the states can enforce their election-speech laws against the persons and entities who made
Article from Reason.com