Michigan AG’s #DetroitLeaks Takedown Demand, and Seditious Libel
The Michigan Attorney General’s office sent this letter, apparently to the Big League Politics site:
(Jim Hoft (Gateway Pundit) posted about this yesterday, and I’ve just confirmed the letter’s authenticity with the AG’s Office of Public Information.)
I can’t speak about the factual accuracy of the allegations in the #DetroitLeaks video, or in the AG’s response. But assume for the purposes of our discussion that the #DetroitLeaks allegations are false. Can those who post the video indeed be criminally prosecuted for the falsehoods (even if the government could prove knowing or reckless falsehood on the posters’ part)?
I don’t think so. I think there is some room under the First Amendment, and under the leading precedent (U.S. v. Alvarez (2012)), for laws that ban knowing falsehoods about how, where, and when to vote. There the government’s concern would be that people will be duped out of voting because they’ll show up at the wrong time or in the wrong place. Such restrictions would be narrow and closely focused at protecting the mechanics of the voting process.
But I take it that this isn’t the Michigan AG’s concern here—rather, the concern must be that people will be fooled into overestimating the risk of election fraud (assuming those statements are indeed false), and will thus either be less interested in voting or will view the election results as illegitimate. And that strikes me as a special case of the much broader concern about certain kinds of political lies: Lies about the government or its processes, the theory goes, will wrongly undermine citizens’ faith in the government.
This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),
false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defa
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