Criminal Penalties for Spreading Fake News?

Criminal Penalties for Spreading Fake News?

Should a tech company be the arbiter of truth? Following the 2016 Presidential election, private as well as congressional investigations have uncovered efforts by foreign actors to manipulate the US elections by posting false information on social media outlets. In March 2019, the US Department of Justice published a Report On The Investigation Into Russian Interference In The 2016 Presidential Election[1], establishing that “Russia interfered in the 2016 presidential election” by employing “a social media campaign designed to provoke and amplify political and social discord in the United States”. The University of Oxford also published a report[2] in which it concluded that the Russian Internet Research Agency (IRA) sought to benefit the Republican party by creating fraudulent accounts on social media sites to post and spread false information. In fact, Facebook itself acknowledged, in a report[3] published after the 2016 election, that “malicious actors … via inauthentic accounts” spread false and/or stolen data, “across the political spectrum with the apparent intent of increasing tensions.”

As the 2020 election is now in full swing, the role of social media is again at the forefront. In October, Facebook allowed an ad run by President Trump’s re-election campaign that included a claim about Joe Biden’s role in the ouster of a Ukrainian prosecutor. In response, the Biden campaign accused Facebook of selling “the tools to target certain segments of the population with lies,” and urged Facebook to remember that it “promised the public, the United States Congress, and its users…that its platform will no longer be a conduit for misinformation and a tool of political distortion.” Facebook’s global head of elections policy, Katie Harbath, responded that the company strove to “empower voters to judge what politicians say for themselves.”[4] 

Most recently, CNBC reported[5] on January 29 that the Elizabeth Warren campaign proposed to “combat disinformation” by pushing for new laws that would “impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote.” The Warren campaign’s press release[6] notes that during the last two election cycles, “online disinformation sought to depress voter turnout by telling people they could vote via text, giving people the wrong date for election day, and more.” Beyond calling for “additional sanctions against countries that engage in election interference through disinformation,”[7] Senator Warren’s plan also advocates for civil and criminal penalties “for knowingly disseminating false information about when and how to vote in US elections.”[8]

What would be the constitutional hazards of these proposed laws?

The Supreme Court has long held sacred the First Amendment’s freedoms of speech and the press – including political advocacy. In 1966, in Mills v. State of Alabama[9], the Court struck down an Alabama law that made it a crime for a newspaper editor to publish an election-day editorial seeking to persuade people to vote in a specific way. The Court held that it would be “difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press,” and noted that the First Amendment’s purpose is to “protect the free discussion of governmental affairs.”[10]

But what if the speech was not an editor’s suggestion to vote for one party over another, but rather political propaganda from a foreign source? Here, too, the Court struck down a Cold War era federal law that required the Postmaster General to refrain from delivering mailings from foreign countries of “communist political propaganda”. In Lamont v. Postmaster General, the Court held that such a restriction constituted “an unconstitutional abridgment of the addressee’s First Amendment rights.”[11] Four years later, the Court clarified that the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society”.[12]

Even if the source of the speech cannot be traced, the Court has also protected anonymous political speech. In 1995, the Court struck down an Ohio prohibition on the distribution of anonymous campaign literature, holding that “an author’s decision to remain anonymous…is an aspect of the freedom of speech protected by the First Amendment.”[13]

The Supreme Court has even extended First Amendment protections to speech that is false, even if it may damage the reputation of a public figure. The Court has described “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” meaning that “it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[14] In a different context, the Court has stated that “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society.”[15] Additionally, the Court has struck down government restrictions on speech based on the content of the speech, expressing apprehension that if such laws could be promulgated, “the government may effectively drive certain ideas or viewpoints from the marketplace,” and “[t]he First Amendment presumptively places this sort of discrimination beyond the power of the government.”[16] As the Court summarized in United States v. Playboy Entertainment Group, Inc.: “It is rare that a regulation restricting speech because of its content will ever be permissible.”[17]

Finally, the Supreme Court has also been opposed to extending liability to third party platforms that enable speech to be disseminated. In 1959, the Court held that booksellers could not be strictly liable for obscene content in books they sell,[18] and five years later, it protected a newspaper from liability for third party advertisements, holding that the failure to do so “would discourage newspapers from carrying ‘editorial advertisements’ … and so might shut off an important outlet for the promulgation of information and ideas who do not themselves have access to publishing facilities”.[19] Even after the 2016 elections, the Court has recognized that the same protections extend to the Internet, stating: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general … and social media in particular.” [20]

In short, the kind of liability Senator Warren proposes would likely be met with serious judicial backlash.