False Speech And The First Amendment Constitutional Limits On

Last updated 1 week ago ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change. For centuries, the guiding philosophy for free speech has been the “marketplace of ideas” – a belief that in a free and open competition of thought, truth will ultimately prevail over falsehood. So what happens when that marketplace is no longer a level playing field? The digital age, with its social media platforms and powerful algorithms, has created an information ecosystem fundamentally different from anything the nation’s founders could have imagined. This new environment, driven by engagement rather than accuracy, has proven to be an astonishingly efficient engine for the spread of misinformation, disinformation, and malinformation.

This collision between America’s foundational legal principles of free speech and the unprecedented challenge of digital falsehoods raises critical questions. What does the First Amendment truly protect? What are the tangible harms caused by misinformation? How do we balance free speech with the need to combat dangerous lies? Home > Law Journals > Brooklyn Law Review > Vol. 88 > Iss.

4 (2023) Social media platforms are used daily by millions of Americans to connect with friends and family, shop from home, and stay attuned to current events. But the increasing ease and speed of accessing information on social media leaves its users exposed to misinformation, disinformation, and fake news that is designed to deceive. Because natural cognitive biases make individualized truth-filtering mechanisms unreliable, it is often difficult for the public to distinguish between fact and fiction. Widespread belief in viral fake news stories have caused serious and dangerous consequences to public health, safety, and democracy. However, because false speech remains categorically protected under the First Amendment, courts rely on the counter-speech doctrine as the remedy to harmful fake news rather than content regulation.

Nevertheless, in the social media era where fundamentally false information often prevails over factual truths on the information marketplace, it becomes difficult to reconcile theory with reality. There is growing belief among scholars and legislators that a Section 230 amendment imposing civil liability on social media platforms would incentivize platforms to enforce stricter content moderation policies. This note suggests that such legislative action does not go far enough to meaningfully mitigate the foreseeable harm caused by viral fake news. Instead, this note directly challenges the current First Amendment doctrine that categorically protects false speech from regulation. While this note posits a judicial solution to the fake news problem; given the limitations that hinder swift judicial action, this note further posits that private businesses are well-positioned to take immediate preemptive action... Eliza J.

Estrella, False Speech and the First Amendment: The Problem with Free Speech in a Fake News Crisis, 88 Brook. L. Rev. 1313 (2023). Available at: https://brooklynworks.brooklaw.edu/blr/vol88/iss4/6 First Amendment Commons, Internet Law Commons

Brooklyn Law School | BrooklynWorks | About | Accessibility Statement In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.[1] Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless... As a general rule, lies are protected, with limited exceptions such as defamation, fraud, false advertising, perjury, and lying under oath during an official government proceeding.

Even deliberate lies about the government are fully protected. Hate speech is not a general exception to First Amendment protection.[2][3][4][5][6] Per Wisconsin v. Mitchell, hate crime sentence enhancements do not violate First Amendment protections because they do not criminalize speech itself, but rather use speech as evidence of motivation, which is constitutionally permissible.[7] Along with communicative restrictions, less protection is afforded to uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the mail, airwaves, legal bar, military, prisons, and... The Supreme Court has held that "advocacy of the use of force" is unprotected when it is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action".[8] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to...

“Congress shall make no law . . . abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances. Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial.

The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government. The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like. The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions.

Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people”... Our editors will review what you’ve submitted and determine whether to revise the article. Despite the broad freedom of expression guaranteed by the First Amendment, there are some historically rooted exceptions. First, the government may generally restrict the time, place, or manner of speech, if the restrictions are unrelated to what the speech says and leave people with enough alternative ways of expressing their views. Thus, for instance, the government may restrict the use of loudspeakers in residential areas at night, limit all demonstrations that block traffic, or ban all picketing of people’s homes. Second, a few narrow categories of speech are not protected from government restrictions.

The main such categories are incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack... But speech urging action at some unspecified future time may not be forbidden. Defamatory lies (which are called “libel” if written and “slander” if spoken), lying under oath, and fraud may also be punished. In some instances, even negligent factual errors may lead to lawsuits.

Such exceptions, however, extend only to factual falsehoods; expression of opinion may not be punished even if the opinion is broadly seen as morally wrong. Certain types of hard-core pornography, labeled obscenity by the law, may also be punished, as the Supreme Court held in Miller v. California (1973). Exactly what constitutes obscenity is not clear, but since the 1980s the definition has been quite narrow. Also, obscenities in the sense of merely vulgar words may not be punished (Cohen v. California [1971]).

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