Does Free Speech Protect Trump’s Election Lies?

The indictment of Donald Trump on Tuesday on four counts stemming from his attempt to overturn the results of the 2020 election has reanimated a question legal scholars have long debated: Are Trump’s false claims that the election was stolen from him protected by the First Amendment?

In May 2022, the Brennan Center at N.Y.U. held a round table discussion on just this question (“Is the ‘Big Lie’ Protected Speech?”).

“We are in a five-alarm fire for democracy, and this is something that started in 2016,” one of the panelists, Katy Glenn Bass, the research director of Columbia University’s Knight First Amendment Institute, said. “It is the result of decades of campaigns to undermine faith in the media, and all sorts of declining trust in public institutions.”

“Lies spread by presidents and other high-ranking government officials,” she added, “are so damaging to democracy that America must find constitutional ways to hold them accountable, more than we hold other liars to account.”

In her 2021 book, “A Right to Lie: Presidents, Other Liars, and the First Amendment,” Catherine J. Ross argued for the creation of a special category of presidential lies that “demand scrutiny.” This category would be “limited to a pattern of verifiable factual falsehoods that materially harm the nation or injure the people of the United States.”

Ross made this distinction in order to address the fundamental dilemma of those seeking to constrain a political outlaw like Trump:

The freedom of speech guarantees by the First Amendment expressly aim to protect unorthodox thought — unpopular views and the ideas of dissidents which majorities are prone to label “false.” A serious tension exists between protecting free speech under the First Amendment and combating the spread of falsehoods that can endanger a free society.

To bolster her case for restraints on presidential speech, Ross pointed to

Trump’s repeated lies and denials about Covid-19 to demonstrate the profound harm presidential lies can cause. The lies alone contributed to an accumulation of deaths, long-term ailments and economic devastation. The carnage, I argue, more than satisfied the Supreme Court’s proposition that the speech clause might leave room for the state to punish factual falsehoods that cause sufficient harm.

Trump responded to the indictment by accusing prosecutors — in a posting on Truth Social, his social media platform — of fomenting a conspiracy to prevent his re-election:

These un-American witch hunts will fail and President Trump will be re-elected to the White House so he can save our Country from the abuse, incompetence, and corruption that is running through the veins of our Country at levels never seen before.

Perhaps most striking, Trump has used his propaganda as a tool to mobilize a MAGA coalition that has taken on the characteristics of a religious sect, affirming its adherents’ belief in Trump’s false claims. For these loyalists, acquiescing to those claims has become a badge of membership in the Trump coalition.

Trump’s sustained lies about the legitimacy of the 2020 election have, in turn, influenced the thinking of many experts.

Richard Hasen, a professor of law at U.C.L.A., for example, has become a proponent of limitations on First Amendment rights.

In his 2022 book, “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It,” Hasen argued that Trump’s statements before and during the 2020 election demonstrate the need to significantly alter the protections provided by the First Amendment: “The Supreme Court’s outmoded free speech doctrine could stymie efforts to save American democracy.”

In recognition of the challenges posed to existing interpretations of the protections of the First Amendment, Hasen has called for adoption of a set of measures

that implicate First Amendment concerns including disclosure of the funders of both online ads and mass coordinated activities aimed at influencing elections; labeling deep fakes and other synthetic media as “altered”; tightening the ban on campaign expenditures by nonmedia foreign persons, entities and government; and enacting a narrow ban on empirically verifiable false election speech.

In an essay published Tuesday night on Slate, “U.S. v. Trump Will Be the Most Important Case in Our Nation’s History,” Hasen wrote:

The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.

Hasen predicted that when tried, Trump will assert First Amendment defense, including his right to make false claims. But, Hasen argued:

Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.

Francesca Procaccini, a law professor at Vanderbilt, shares the view that in the contemporary political environment, there needs to be more regulation of speech. In an email, she wrote:

The left is split on how to respond to misinformation precisely because the left is historically committed to free speech and also to uplifting marginalized voices. It was once true that these concerns overlapped (the people’s voices who were being silenced were marginalized voices), but the script has become more complicated. Now, many on the left have increasingly come to understand that speech itself (whether false speech or hate speech) is also detrimental to marginalized communities.

“For my own part,” Procaccini wrote, “I believe speech and ideas have power, and like anything of great power, they require some democratic oversight.”

“The virality, anonymity and speed of the internet,” she continued, “has fundamentally changed the ‘circumstances’ and the ‘context’ of speech online, justifying different regulations on speech in that environment than we would want to impose in the physical public square.”

Since Citizens United, which effectively freed corporations and unions to spend money on “electioneering communications” and to advocate the defeat or election of candidates directly, “The left has been increasingly skeptical of a maximalist approach to free speech, given how the conservative Supreme Court has used the right to protect and advance conservative policy goals,” Procaccini argued. “Now that First Amendment-protected speech quite literally incited a riot and nearly a coup, long-running concerns about the weaponization of free speech appear more salient.”

Catherine MacKinnon, a law professor at the University of Michigan, expanded on the left critique of free speech jurisprudence in a 2020 article, “Weaponizing the First Amendment: An Equality Reading.” MacKinnon argued that:

Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the 20th century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections in the dark.

Freedom of speech, MacKinnon continued,

has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized, the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

Justice Elena Kagan used the phrase “weaponizing the First Amendment” in a 2018 dissent in Janus v. State, County and Municipal Employees. The majority decision was a devastating blow to public employee unions. It concluded that “states and public-sector unions may no longer extract agency fees (partial union dues) from nonconsenting employees.”

This procedure, the majority wrote,

violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

“There is no sugarcoating today’s opinion,” Kagan argued in her dissent:

The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment.

The majority, Kagan continued, “has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” The majority’s road “runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”

The degree to which Trump’s lies have influenced Democratic and liberal views of free speech is reflected in a Pew Research report published last month, “Most Americans Favor Restrictions on False Information, Violent Content Online.”

In 2018, before the 2020 election and before Trump’s multifront challenge to the results, there was a striking level of bipartisan support for free speech — including tolerance for lies.

Solid majorities of both Democrats (57 to 40 percent) and Republicans (60 to 37 percent) agreed that “people’s freedom to publish and access information should be protected, even if it means false information can also be published.” Minorities of both parties chose the alternative: “The U.S. government should take steps to restrict false information online, even if it limits people from freely publishing or accessing information.”

By 2023, Republican support for freedom to publish even false information remained virtually the same, at 59 to 39 percent.

Democrats, however, had flipped decisively in favor of government action to restrict false information, first by 65 to 34 percent in 2021 and then by 70 to 28 percent in 2023.

Trump has played a crucial role in accelerating what has been a long-term ideological retrenchment of the left and right on free speech issues.

This retrenchment dates back at least 20 years and was — and continues to be — driven by a shift on the left: Liberal support for free speech suffered as concern grew over the potential harm free speech could inflict on marginalized groups — racial minorities, the L.G.B.T.Q. community, the homeless and many others.

There is, in effect, a growing incompatibility on the left between its traditional commitment to First Amendment rights and the more recent determination to enhance equality by restricting speech harmful to the least powerful constituencies in society.

Conservatives, in contrast, have found that the First Amendment can be used to support business interests against labor and to open the door to corporate financing of political campaigns, as noted by Kagan and MacKinnon.

Fred Schauer, a law professor at the University of Virginia, stressed his agreement with the view that Trump exacerbated the growing disenchantment on the left with free speech:

You and I came of age when strong free speech positions were associated with the political left, and this was manifested on issues such as protection of civil rights demonstrators, opposition to obscenity laws, protection of anti-Vietnam War protesters, opposition to McCarthyite loyalty oaths and so on.

But, Schauer continued,

Starting roughly in the 1980s, the political valence of free speech arguments has changed, fueled in part by the feminist anti-pornography movement, in part by the movement of the Republican Party in a more libertarian and therefore anti-regulatory direction, in part by concerns about racist and other forms of hate and in part by the growth of what is now labeled political correctness.

A number of scholars have documented the ideological conversion of the left on free speech issues.

Morris Levy, a political scientist at the University of Southern California, emailed his thoughts in response to my inquiry:

Democrats’ startling embrace of censorship of misinformation reflects both short- and long-term forces. It is almost surely in part a reaction to Trump and to the fallout from the Jan. 6 riot. However, it is also a byproduct of the long-term weakening of liberals’ once stalwart support for the freedom of expression.

The trend, Levy continued, “originated with many liberals’ gradual acceptance of radical egalitarian arguments for banning ‘hate speech’ about race, gender, sexuality, religion and other group identities.”

Liberal aversion to hate speech, in Levy’s view, has led to “significant liberal intolerance of much mainstream political, artistic and scientific expression that has a whiff of offensiveness. The evidence is accumulating that this trend is maturing into a full-blown reconsideration of the scope of free speech.”

Historically, liberals were far more supportive of free speech than conservatives, Levy wrote, “and this included extremely racist speech as well as misinformation.” He cited an earlier study showing “that during the 1970s, over 80 percent of politically engaged liberals agreed that ‘crackpot ideas have as much right to be heard as sensible ideas,’ rejecting the alternative option that they ‘sometimes have to be censored for the public good.’ Politically engaged conservatives’ tolerance was much lower, with only slightly over half taking the tolerant position.”

In February 2021, Levy and two fellow political scientists, Dennis Chong of U.S.C. and Jack Citrin of Berkeley, conducted a survey and “found a sweeping reversal: only 44 percent of liberals took the tolerant position, compared to 62 percent of conservatives.”

The 2021 survey asked respondents: “If a speaker at a public meeting begins to make racial slurs, the audience should 1) stop him from speaking or 2) let him have his say and then answer him.”

Levy reported that 32 percent of liberals gave the second response, compared with 43 percent of conservatives.

Citrin argued that “the reaction on the right to academic and elite cancel culture has provoked a backlash” such that the left and the right are threatening “free expression from both sides. The danger is the classic slippery slope of censorship.”

Citrin said his “personal view is that a range of restrictions of free speech is a threat to democracy as it limits discourse and has led to self-censorship. The boundaries of free speech are an ongoing issue in democracy. I guess I would take my chances with more not less, even if some it is offensive and purely self-interested.”

I asked Chong about public opinion on the First Amendment, and he emailed me to say that partisans view the matter through Democratic and Republican lenses:

The spread of misinformation has become strongly associated with Trump’s lies, falsehoods about Covid and vaccines, and other dangerous conspiracy ideas, while many recent free speech controversies have involved offensive expressions about race, gender and sexual orientation.

Tolerance of such expression, Chong continued,

is a much heavier lift for the left than the right because the expressions in question threaten the left’s beliefs and values. In the 1950s and ’60s free speech was commonly invoked in defense of Communists, student activists, antiwar protesters and radicals on the left, groups and issues that liberals were more tolerant of than conservatives. Although liberals have historically been more supportive of civil liberties than conservatives, the contrast between liberals and conservatives in their attitudes toward free expression diminishes when defending free speech requires tolerating expressions that the left regards as harmful to vulnerable groups and to democratic institutions.

The altered tenor of the debate on the left, Chong argued, is that now

Most progressives feel they are protecting democratic norms by drawing limits on hate speech and misinformation in social and political discourse and on social media and other venues. For many progressives, intolerance toward the intolerant — those who would restrict the rights and liberties of others if they held political power — has become both the prudent stance and the normatively correct position.

At the same time, Chong contended that “there is no reason to think conservatives’ and Republicans’ proclaimed support of free speech is more than a cynical stance given their zeal for censoring books and the teaching of ideas about race and L.G.B.T.Q. with which they disagree.”

Despite declining support among liberals, Chong noted that an international survey he, Levy and Citrin conducted showed that “Americans are consistently more supportive of free speech in the abstract and more willing to tolerate expression of a variety of unpopular and offensive views originating from both left-wing and right-wing sources.”

However, Chong continued,

There are signs that the attitudes of younger American cohorts are converging toward the more censorious attitudes of the British, Canadians and Australians, which suggests that the symbolic power of the First Amendment no longer carries as much sway with younger generations of Americans who accord greater priority to egalitarian considerations in their opposition to hate speech.

I asked Erwin Chemerinsky, the dean of the Berkeley Law School and one of the nation’s foremost scholars of First Amendment law, about the debate over free speech, and he emailed back a strong defense of the First Amendment.

My question: “Has concern on the left over racist and other speech damaging to the marginalized now been compounded by concern on the left over lies and misrepresentations?”

Chemerinsky:

Of course, there should be concern about the effects of racist and antisemitic speech, but it is protected by the First Amendment. We also should be concerned with lies and misrepresentations, though I do not believe that means the government should have more latitude to regulate speech.

Have the detrimental effects of Trump’s lies and misinformation generally reached the point of justifying retrenchment on the First Amendment?

Chemerinsky:

No. The difficulty is who will decide what is true and what is false if we were to have retrenchment of the First Amendment. There already are some limits on false speech, such as defamation (e.g., Dominion Voting suit for Fox News). I am troubled by the prevalence and effects of false speech. But I would be even more troubled by changing the First Amendment.

Your own assessment of the current state of free speech?

Chemerinsky:

The internet and social media have tremendously advanced free speech in a way that never could have been imagined. But they also allow for much more harmful and false speech.

For Chemerinsky, a scholar devoted to the principles of the First Amendment, to voice such ambiguity is a reflection of the liberal dilemma over the tensions between free speech and equality and between free speech and democracy.

These tensions may moderate if and when Trump leaves the political arena, but they are unlikely to be resolved anytime soon.