First Amendment principles permit the government to punish false speech when it directly and immediately causes specific and serious harm. But unlike defamation, fraud, perjury, and other examples of punishable false speech, the term “disinformation” (or “misinformation”) has no specific legal meaning. “Disinformation” is widely used to designate false or misleading speech that cannot constitutionally be punished precisely because its potential harms are indirect and speculative—what the U.S. Supreme Court has called “an undifferentiated fear or apprehension” of negative consequences.
To be sure, even though the harmful potential of disinformation is more inchoate than that of false speech that is constitutionally punishable, the potential for harm is still real. The many current advocates of restricting disinformation stress that it can cause serious harm, including to individual and public health, and even to democratic self-government itself. Yet expanding government power to punish such expression would also cause harm that is at least as serious—including to the very same values of health and democratic governance.
The negative impact of censoring disinformation comes from its inherent vagueness and subjectivity. The authorities tasked with censorship invariably enforce this malleable concept in ways that reinforce dominant political and societal interest groups, and disadvantage minority groups and perspectives. This predictable dynamic is illustrated by recent experience in a number of other countries, from Russia to South Africa, and also in the United States before the Supreme Court enforced strict limits on punishing false speech.
While the relevant legal analysis focuses on government censorship of disinformation, many of the same concerns also apply to censorship implemented by dominant technology firms. Although these private sector entities are usually not constrained by the First Amendment, their enormous power and influence over public discourse means that their restrictions on disinformation have adverse consequences similar to government restrictions. Moreover, in recent months, mounting evidence suggests that the dominant platforms’ content restrictions on disinformation (and other controversial speech) may have been sufficiently induced by or coordinated with government officials that we should seriously consider treating such restrictions as tantamount to government action and hence subject to First Amendment limits.
Arguments for restricting disinformation consistently focus on the harm that such speech can potentially cause, without analyzing other issues that should be considered before concluding that censorship is justified. First, it is important to underscore the important fact noted above: The harmful potential of disinformation—unlike constitutionally punishable forms of false speech—is indirect and speculative. While the old nursery rhyme is wrong in declaring that “words will never hurt me,” it is equally untrue that “words will always hurt me.” The impact of speech on a single human mind, let alone an entire community or society, results from the complex interplay of multiple factors, and hence cannot be confidently predicted, or even clearly assessed after the fact. For example, what has been the net impact of disinformation about the 2020 election? Surely disinformation spurred some negative outcomes, including motivating participants in the events of Jan. 6. Just as plausibly, though, disinformation about the election spurred some positive outcomes too, including increased efforts to promote healthy skepticism, media literacy, fact-checking, and other measures that would remain necessary even if disinformation were censored. Because we can never completely eliminate the supply of disinformation, the most effective response is to curb the demand for it.
Even if we made the purely hypothetical assumption that certain disinformation has a significant negative impact on balance, it still would not follow that government should restrict it. Logically, one could justify restrictions only by analyzing three additional questions: (1) Does the restriction materially reduce either the prevalence of such speech or its potential adverse impact? (2) Does the restriction have any adverse consequences (including unintended ones), such as increasing the prevalence or potential adverse impact of the targeted speech, or suppressing other speech that even censorship advocates agree should be protected? (3) Are there other steps we could pursue to reduce the prevalence or potential adverse impact of the targeted speech that would be at least as effective, but would not entail as many adverse consequences?
This additional line of questioning makes common sense. We might well be willing to give up some free speech rights for the sake of advancing some other important goal—such as, in the case of disinformation, preserving our democratic form of government. But we shouldn’t be willing to forfeit free speech if the sacrifice does not actually have the desired impact, or worse yet, if it actually makes the problem worse—in this case, by undermining democracy. Indeed, government punishment of disinformation is fundamentally antithetical to democracy. As the Supreme Court declared in United States v. Alvarez (2012), which struck down a federal law criminalizing certain false statements, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
As current debates illustrate, one person’s cherished truth is another’s despised “fake news.” Speech that critics seek to suppress as disinformation almost never consists of objectively verifiable facts alone, but also involves subjective matters of interpretation and analysis. After all, speakers who intentionally or recklessly utter false statements of fact that directly cause specific harm may constitutionally be punished under existing laws, such as those that ban fraud, defamation, and perjury. In contrast, our legal system scrupulously avoids punishing statements that go beyond straightforward facts and incorporate matters of interpretation or opinion. As the Supreme Court declared in Gertz v. Robert Welch, Inc. (1974): '’Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”
While some may bristle at the notion that government is prohibited from silencing “false ideas,” surely the alternative is far worse. If government were permitted to determine which ideas should be deemed “false” and hence punishable, any ideas that depart from prevailing orthodoxy—including those critiquing government policy—would be jeopardized. Such a course could not be more inimical to the most fundamental precepts that undergird our democratic republic. As the Supreme Court eloquently declared in its landmark 1943 decision in West Virginia Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ...”
Until the Supreme Court reined in the concept of defamation in its groundbreaking 1964 ruling in New York Times v. Sullivan, Southern officials systematically persecuted civil rights leaders and organizations, as well as the national media that covered them, for even slight misstatements of fact. Those officials pursued multiple defamation lawsuits with the specific goal of imposing ruinously large damages judgments in order to stifle both the civil rights activists themselves and the national media that disseminated information about their efforts across the country. Without that national audience, and the resulting political and financial support for the civil rights movement, it likely would have foundered; that was precisely the point of the libel lawsuit strategy. In a nutshell, the pre-Sullivan libel laws, which gave government undue discretion to punish disinformation, were unsurprisingly weaponized against the government’s critics.
To this day, advocates for racial justice, including supporters of the Black Lives Matter movement, have seen their own speech assailed—and even suppressed on social media—as disinformation. For instance, a May 25, 2021, National Public Radio story quoted Mike Gonzalez, a senior fellow at the Heritage Foundation, as stating: “I feel that Black Lives Matter is one of the greatest sources of disinformation ... They have manipulated the good nature of many people.” The story also quoted Gonzales, Rudolph Giuliani, and other BLM critics charging that the movement falsely portrays itself as a racial justice group, whereas its actual goal is “to advance a Marxist agenda.” While the NPR story quoted critics charging BLM with purveying disinformation, it also quoted BLM leaders who returned the very same charge, complaining that the disinformation accusations themselves constituted disinformation.
The unavoidable problems with censoring disinformation have predictably plagued recent laws, including those touted as restricting pandemic-related disinformation in order to protect public health. As the Economist reported in February 2021, “Censorious governments are abusing ‘fake news’ laws,” invoking the pandemic as “an excuse to gag reporters” and to silence critics of pandemic-era policies. In February 2020, Amnesty International noted that Singapore’s 2019 law against “online falsehoods and manipulation” was “repeatedly used to target critics and political opponents.” The Singaporean government could not deny this, but instead claimed that the law’s consistent enforcement against opposition party members was a “coincidence.” To the contrary, these patterns necessarily result from restrictions on such a vague, broad category of speech, even in democratic regimes.
That is why the American Civil Liberties Union brought a 2020 lawsuit challenging disinformation laws that the government of Puerto Rico had recently passed for the asserted purpose of protecting public health and safety. One such law makes it a crime to share “false information” about the government’s post-pandemic emergency and curfew orders with the intent to cause “confusion, panic, or public hysteria.” Shortly after the law went into effect, the Puerto Rican government charged a prominent clergyman with allegedly disseminating false information on WhatsApp about a rumored executive order to close all businesses. In fact, only a short time later, the governor did issue such an order.
Even beyond the speech that disinformation laws directly stifle, these laws also suppress incalculable amounts of important expression, including information about the pandemic that could literally be a matter of life or death. That’s because the laws deter scientists and other experts from providing information to journalists, and journalists are in turn deterred from conveying information to the public, for fear of transgressing—or being charged with transgressing—the laws’ blurry boundaries. The ACLU’s complaint in the Puerto Rico case was filed on behalf of two prominent investigative journalists, who explained that “developing stories on matters of immense public concern are often complex, contentious, and murky,” and thus “inadvertent inaccuracies are inevitable even in the most thoroughly vetted reporting.”
Throughout the pandemic, we have witnessed constantly evolving and shifting views among expert individuals and agencies, as they steadily gather and analyze additional data. Yesterday’s life-endangering “disinformation” can and has become today’s life-protecting gospel. Recall, to cite only the most obvious example, the CDC’s changing edicts about mask-wearing.
Inherently subjective disinformation restrictions can easily be wielded for ulterior purposes, including to promote partisan interests. Consider, for instance, recent evidence that the Biden administration has been pressuring social media companies to restrict content that purportedly purveys disinformation about COVID, in light of allegations that the actual concerns may well involve politics at least as much as public health. Republican members of Congress have claimed that platforms have restricted “conservative” posts on issues related to the pandemic in response to pressure from administration officials, even though the posts contained no factual misrepresentations and simply conveyed perspectives with which the administration disagreed. Whether or not these claims are factually correct, it is true that the concept of disinformation is so open-ended that it could be deployed against particular communications for partisan reasons.
The inevitable manipulability of restrictions on disinformation is well illustrated by YouTube’s recent removal of a video for violating its “medical misinformation policy.” The video, which had been posted by New York Rep. Nicole Malliotakis, was of an August 2021 news conference in which she announced a lawsuit challenging New York City Mayor Bill de Blasio’s “vaccine passport” as an invasion of privacy and an unreasonable mandate on small businesses. Although Malliotakis supports vaccination, she believes that the mandate constitutes government overreach—a position that the Supreme Court might well end up sharing. After Malliotakis appealed YouTube’s removal, the company said that it was “taking another look” and ultimately reinstated the video, thus underscoring the inherent elasticity of the misinformation concept. Whether or not YouTube actually had a good-faith health reason for its initial removal of the video, the fact remains that the vague policy can easily be invoked as a pretext, masking other motives.
All the more reason, then, to be suspicious of even sincere attempts by public and private authorities to prevent the harm that disinformation can cause. Recall that Southern officials based their libel lawsuits against activists and journalists during the civil rights movement on the dissemination of inaccurate information. What we learned in that era is that disinformation is unavoidable in any vigorous discussion of fast-breaking public issues, and that making it punishable by law can only inhibit democratic debate. It’s time we relearn that lesson.
Nadine Strossen was national president of the American Civil Liberties Union from 1991 to 2008 and is professor emerita at New York Law School.