//  4/27/20  //  Commentary

That Trump lies incessantly is not new. That his lies are irresponsible and dangerous in a pandemic should also be apparent.  In fact, some news outlets have elected not to carry Trump’s coronavirus briefings because of the disinformation. I would like to add that his endless falsehoods should also be unconstitutional. That is, I want to argue that certain kinds of government propaganda violate the Free Speech Clause.

This is an unexpected take on the First Amendment Clause for two reasons. First, under current Supreme Court rulings, the Free Speech Clause does not reach government speech. It is triggered when the government regulates private speaks, but not when the government itself speaks. Second, I am essentially arguing that the Free Speech Clause requires shutting down speech – a claim at odds with most people’s views that the First Amendment protects against censorship.

Let me explain. The Free Speech Clause protects speech for several reasons. It ensures that people are allowed to express themselves, which is a crucial right in a democracy. It helps create a marketplace of information and ideas, which promotes our search for knowledge. And finally, and some argue most importantly, it helps foster our democratic system of government.

Our democracy is premised on the idea that the government governs with the consent of the governed (us!) – a consent that we grant or withhold at the ballot box. But in order for that consent to be valid, we must know what policies the government advocates and what actions government officials actually take. In other words, we need a free flow of information in order to make sure our government remain accountable to us. It is that free flow of speech that the Free Speech Clause protects.

The government may hamper with this crucial flow of information in different ways. It might attempt to censor speech it does not like. For example, it might try to eliminate criticism of itself, or opinions that it does not share.  Under the Free Speech Clause, however, any government regulation that targets private speech based on its viewpoint is presumptively unconstitutional. In other words, the Free Speech Clause protects against this type of disruption.

The government may also interfere with this free flow of information by polluting it, and that is what government propaganda does.  I am defining government propaganda fairly narrowly as when the government knowingly or recklessly makes verifiably false statements of fact on matters of public interest. (This definition relies on existing free speech tests, and is therefore one courts  can easily implement.) 

Each day provides new examples of government propaganda. When the President announces that everyone can get a coronavirus test, when he knows that is not true, that is government propaganda. Or when the President claims that the FDA has approved chloroquine as a remedy for coronavirus, when health experts likely just told him that there is no known cure, that is government propaganda.

This false information undermines the democratic process. Imagine that you would not vote for a President who neglected to prepare for the inevitable pandemic by ensuring enough equipment for health care workers and sufficient test kits to help track and contain the virus. In order to vote this incompetent President out of office, you would need to know about his long series of missteps. If, however, you hear every day that everything is dandy, that everyone in the U.S. has access to a test, and there is even a cure on the way, you might approve of the President’s performance, and even vote to re-elect him. Because of the government’s propaganda, you will not hold him and his Administration accountable for their gross mismanagement.

Thus, just as the government suppressing private speech can distort the information Americans receive, so too can the government’s own propagandistic speech pollute the information stream and stymy the ability of citizens to hold the government accountable. Accordingly, just as the first type of interference with the free flow of speech often violates the Free Speech Clause, so too should the second kind of interference. In both cases, the Free Speech Clause should prevent the government from tampering with the flow of information Americans need to make informed political decisions. In short, both should be unconstitutional.

Free speech advocates might argue that the proper response to speech that is false is speech that is true. In other words, there should be more speech rather than less. There is no need to ever suppress speech because if the President tells a lie, others can debunk it. The problem is that this traditional free speech remedy is not working. Despite widespread factual correctives, truth does not always prevail. It is too soon to measure the success of Trump’s most recent rounds of propaganda, but earlier lies have taken root. For example, more than one public opinion poll [thehill.com] found that roughly half of Republicans believe that Trump won the popular vote in 2016, despite this being verifiably and incontrovertibly false.

Why does government propaganda succeed? Here are a few of the many reasons. First, repetition makes claims more plausible, and Trump repeats false statements over and over again. Second, while it is almost impossible for news consumers to avoid what the President and his Administration say on national affairs, the corrections to their lies often do not reach those who most need to see them: the abundance of news outlets today lets people find news that reflect their world view, and these sources may reaffirm rather than challenge White House propaganda. Third, Trump and his Administration, with their endless barrage of lies, have destabilized the truth. Propaganda is not only about convincing you of the truth of a particular claim; it may make you skeptical of truth itself. Overwhelmed with conflicting accounts, people may no longer know what to believe, leading them to reject the truth even when they do encounter it.  Trump’s relentless and strategic attacks of mainstream media as fake has only exacerbated this phenomenon.

The shortcomings of more speech as a solution to problematic speech has long been understood. It has nonetheless been have accepted in large part because scholars and the courts fear that the cure, censorship, would be worse than the disease, harmful speech. They worry that giving the government authority to regulate harmful speech, whether it be false speech or hate speech, opens the door to two deleterious consequences. One, people might be chilled from speaking, anxious lest they inadvertently violate the speech regulations. Two, the govt might abuse its power and selectively target its opponents. These are valid concerns, and may help justify the failure to regulate private propaganda and other problematic private speech.

However, neither concern applies to government propaganda.  There is no need to worry about chilling private speech because the speakers are not private but governmental; with government propaganda there is no risk-adverse private speaker uncertain about government enforcement because the government is not the enforcer but the speaker. The fear of silencing government critics is also not apropos when the regulated speaker is not a private person but the government itself.  A First Amendment right against government propaganda is not giving the government a tool it may potentially abuse. Rather the right creates a tool to limit actual government abuse.

The Supreme Court has also argued that the solution for problematic govt speech is for citizens to vote to change the government. Unfortunately, this political process cannot be relied upon to remedy government propaganda because a consequence—if not the point—of government propaganda is to disrupt it. The normal political process is simply not an adequate recourse to government speech calculated to undermine that process. In a nutshell, for the sake of our democracy, government propaganda ought to be recognized as violating the Free Speech Clause.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP