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127 Penn Statim 111 (2022-2023)
The Stolen Election Lie and the Freedom of Speech

handle is hein.journals/statim127 and id is 111 raw text is: The Stolen Election Lie and the Freedom of Speech Wes Henricksen* and Broderick Betz** One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections.1 ABSTRACT In an effort to overturn the 2020 presidential election, the losing candidate, Donald Trump, falsely claimed his opponent, Joe Biden, had stolen the election. This involved dozens of baseless allegations, which Trump repeated hundreds of times. These false claims were echoed and amplified by right-wing leaders and media and were endorsed as part of the political platform for hundreds of Republican candidates in the 2022 election. As a result, millions of Americans have been duped into believing the election was not won by Biden, but stolen by him. This Stolen Election Lie has severely diminished Americans' trust in the electoral system. It caused a violent mob to attack the United States Capitol in an effort to thwart the peaceful transfer of power. It has also served as the basis for numerous efforts to disenfranchise voters. It has, in short, caused widespread harm to individuals and society alike. And yet, this brazen scheme to defraud the public has, to date, gone unpunished. In fact, those responsible for spreading it have been rewarded, and many have even won political office. From a First Amendment perspective, the Stolen Election Lie sits at the intersection of political speech and fraudulent speech. Political speech has the highest free speech protections. Fraudulent speech has no protections. To date, courts and scholars have almost universally treated disinformation campaigns like the Stolen Election Lie as political speech. In this Article, we argue that harmful disinformation that operates as fraud on the public should instead be treated as fraudulent speech. Falsehoods *Associate Professor of Law, Barry University Dwayne O. Andreas School of Law. **J.D. candidate, 2023, Barry University Dwayne O. Andreas School of Law. The authors would like to thank Luke Nelson for his editorial assistance, which improved the final version of this Article. 1. Matter of Giuliani, 146 N.Y.S.3d 266, 283 (App. Div. 2021). 111

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