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1 1 (August 1, 2022)

handle is hein.crs/goveiai0001 and id is 1 raw text is: * Congressional Research Service Informing the legislitive diebate since 1914 August 1, 2022 False Speech and the First Amendment: Constitutional Limits on Regulating Misinformation Federal and state legislators have expressed interest in regulating online misinformation and disinformation. Such regulatory efforts may implicate the U.S. Constitution's First Amendment. The Supreme Court has said the Free Speech Clause protects false speech when viewed as a broad category, but the government may restrict limited subcategories of false speech without violating the First Amendment. For example, defamation, fraud, political advertisements, and broadcast speech are subject to special considerations. This In Focus highlights some relevant constitutional considerations in crafting new regulations of false speech. First Amend ment Protections for Fase Speech The Supreme Court has recognized that false statements may not add much value to the marketplace of ideas. Even so, there is a concern that by prohibiting false speech, the government would also chill more valuable speech, meaning it would cause people to self-censor out of fear of violating the law. Consequently, the First Amendment creates breathing space protecting the false statements and hyperbole that are inevitable in free debate. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court has suggested the government may not regulate false ideas, and even false factual statements receive some constitutional protection. As a general rule, if a law targets speech based on its expressive content, that content-based regulation will trigger strict scrutiny analysis. Under strict scrutiny, a law is presumptively unconstitutional unless the government can show the challenged law is the least restrictive means of targeting speech while also serving a compelling governmental interest. Courts have sometimes extended this general principle to laws regulating false speech and concluded that laws prohibiting lies about a certain topic trigger strict scrutiny. The Supreme Court, however, has split on the exact level of scrutiny applicable to false speech regulation. In United States v. Alvarez, 567 U.S. 709 (2012), the Supreme Court invalidated the Stolen Valor Act, a federal law prohibiting false statements about receiving military decorations or medals. The four-Justice plurality opinion clarified that falsity alone may not suffice to bring the speech outside the First Amendment. Thus, the plurality opinion applied strict scrutiny to the Stolen Valor Act as a content-based law. The Court held that the law was not sufficiently narrowly tailored: It punished false statements regardless of the context or purpose. There was no direct causal link showing the law's broad scope was necessary to the government's goal of protecting the integrity of the military honors system. Two Justices agreed in a concurring opinion that the law was unconstitutional, although they applied an intermediate level of constitutional scrutiny. The concurrence suggested laws might satisfy intermediate scrutiny if they regulate a subset of lies where specific harm is more likely to occur. Exksting Prohbtions on False Speech Although content-based laws generally trigger strict scrutiny, possibly including laws regulating false statements, the Supreme Court has historically allowed certain limited categories of speech to be regulated based on their content. These categories include defamation and fraud, both of which entail false speech. Apart from these limited categories, existing federal laws prohibit, for example, perjury or making certain materially false statements to government officials. Other federal laws address misrepresentations in political advertising or in broadcast media. Defamation Although the particulars of defamation claims vary state by state, the common law of defamation historically imposed liability for making certain false statements harming a person's reputation if the speaker acted negligently with respect to whether the statement was true. While the Constitution allows liability for defamatory statements, the First Amendment remains relevant in evaluating the standards for proving defamation. In the landmark 1964 case New York Times Co. v. Sullivan, the Supreme Court ruled that statements about public officials enjoy heightened constitutional protection from defamation liability. Public officials cannot win a defamation case unless they show an allegedly defamatory statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The actual malice standard also extends to defamatory statements about public figures, and lesser constitutional protections apply to defamatory statements on matters of public concern. In addition, lower courts have long held that the First Amendment requires a heightened standard before certain speech distributors such as bookstores may be held liable for circulating material with defamatory statements. Fraud and False Commercial Speech The common law of fraud imposes liability on a person who makes a fraudulent misrepresentation for the purpose of inducing someone else to act, detrimentally and justifiably, in reliance on that material misrepresentation. Federal and state governments have also enacted various statutes punishing specific types of fraud. For example, in 1948 the Supreme Court easily rejected a First Amendment

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