Liar, Liar: False Statements and the Freedom of Speech

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What can the government do to counter "disinformation" or other statements that it believes to be false?  The Supreme Court famously protected some false defamatory statements in New York Times Co. v. Sullivan and extended that holding, in United States v. Alvarez, that the First Amendment prevented the government from punishing a speaker from falsely claiming to have won military honors.  Yet other false statements, such as fraud and perjury, may  be punished, and recently the question of the government's power to limit false speech has assumed more prominence.  

In response to the Capitol attack of January 6, 2021 and President Trump's claims that the 2020 election was stolen, the governor of Washington State proposed a law punishing false speech that was likely to lead to violence.  Elsewhere controversies surrounding the truth of COVID-related information have arisen and the Biden Administration's Department of Homeland Security had planned to create a board to counter disinformation.  Amid free-speech outcries, the proposal was set aside, but the Administration remains focused on combating disinformation.  This program will feature panelists with contrasting views of the government's authority in this field and  whether efforts to limit false speech represent a threat to First Amendment values.

 

Featuring:

Harmeet K. Dhillon, Founding Partner, Dhillon Law Group Inc.

Catherine Ross,  Lyle T. Alverson Professor of Law, The George Washington University Law School 

Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law

Moderator: Hon. Donald Palmer, Commissioner, U.S. Election Assistance Commission

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Ryan Lacey:  Hello, and welcome to this Federalist Society Webinar. This afternoon July 21st, 2022, we discuss "Liar, Liar: False Statements and Freedom of Speech." My name is Ryan Lacey and I'm Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our experts on today's program.

 

      Today, we are fortunate to have an excellent panel moderated by Commissioner Donald Palmer whom I'll introduce very briefly though much more could be said. Donald Palmer is a commissioner at the US Election Assistance Commission, EAC, and a former Bipartisan Policy Center fellow. He was nominated to the EAC by President Donald J. Trump and confirmed by unanimous consent to the United States Senate on January 2019.

 

      After our speakers give their remarks, we will turn to you, the audience for questions. If you have a question, please enter it into the Q&A section at the bottom of your screen, and we will handle questions as we can toward the end of today's program. With that, thank you for being with us today. Commissioner, the floor is yours.

 

Hon. Donald Palmer:  Thank you, Ryan. My hope today is to have an active discussion on the role of government and actions of the government that may result in censoring, deplatforming, or some other action against a speaker for statements or false statements that might be considered false misleading by the majority or reigning narrative.

 

With the First Amendment restricting what the government may do, does the Executive Branch have a role to play in the information wars as the arbiter of truth or as an official government fact checker. Now, the Supreme Court protected some false defamatory statements in New York Times v. Sullivan and extended that holding in United States v. Alvarez. But the First Amendment prevented the government from punishing a speaker from falsely claiming to have won military honors. Yet other false statements such as fraud and perjury may be punished.

 

And recently the question of the government's power to limit free speech has assumed more prominence. In response to recent claims that the 2020 election was stolen, the governor of Washington State proposed a law punishing false speech that was likely to lead to violence. Oregon legislators proposed a law concerning valid access and perhaps removal from office for candidates that, having exhausted their remedies post-election, continue to cast doubt on election results.

 

Elsewhere, there's been controversy surrounding the truth of Covid related info that have arisen in the administration's Department of Homeland Security had planned to create a board to counter disinformation. Amid free speech crowd cries, the proposal was set aside. But the administration remains focused on combating disinformation.

 

This program will feature panelists with contrasting views of the government's authority in this field and whether efforts to limit false speech represent a threat to First Amendment values. So here to discuss the issues are our panelists. Harmeet Dhillon is the founding partner at Dhillon Law Group Incorporated. She is the former Vice Chairwoman of the California Republican Party and a national committee woman of the RNC for California. Miss Dhillon has developed a niche practice in representing clients across California in election and campaign law matters ranging from general compliance and election representation for partisan and nonpartisan contenders to ballot description contests.

 

Professor Catherine Ross is the Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with a particular emphasis on the First Amendment. Professor Ross's book, The Right to Lie: Presidents, Other Liars, and the First Amendment, was published in November of '21 and has been featured at events at the Cato Institute, the National Constitutional Center, and other venues.

 

Professor Eugene Volokh, a Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law where he teaches First Amendment law and a First Amendment amicus brief clinic. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the US Supreme Court and for Judge Alex Kozinski on the US Court of Appeals for the Ninth Circuit. He is the founder and coauthor of the Volokh Conspiracy, a weblog that was hosted by the Washington Post and is now at Reason Magazine. In addition to this academic work, he's filed briefs in more than 125 appellate cases throughout the country since 2013 and he has argued in over 30 federal and state appellate cases.

 

Thank you for joining me. At this point, I'm going to turn it over to you, the panelists. We'll start with Harmeet to talk a little bit about what her belief is on the role of the federal government in free speech issues and how we could regulate false speech. And then we'll go to Catherine and then to Eugene to talk about their views on what the role of the federal government is. Harmeet, I'm going to turn it over to you until 5 to 10 minutes. I'm going to go down the list for the panelists. Thank you.

 

Harmeet K. Dhillon:  Well, thank you very much, Don and to the other panelists and to all the participants here. There's a lot to say about this topic. It'll be difficult. I'll try to restrict myself to the time. As a lawyer, I'm involved in extensive litigation over the role of the government in arbiting what is true and what is false and what can be punished on that basis. And I think to lay the table, many of us may be familiar with the Akira Kurosawa movie, Rashomon, which shows that a particular event may be interpreted very differently by different people. And we also are familiar with the left's catchphrase about people not speaking the truth but speaking their truth.

 

So the concept that truth is relative, and that truth can be subject to different interpretations, I think is something that everybody is familiar with from childhood. And yet, we see legislation from our government. We see, I think to me more importantly, sub-rosa collaboration between the government and private actors that seeks to impose a single definition of what is true and then punish people on their adherence or lack thereof to that truth. And so I come from the perspective that there is very little that the government can legally do, consistent with the First Amendment, to define truth and then hold people accountable for it other than narrowly tailored regulations having to do with fraudulent statements and the like. And so hopefully, we're going to have a vigorous discussion about that.

 

For me, the line between an accessible open marketplace of ideas and a regulated privately owned social media platform, which is an extensive aspect of litigation these days, has become blurred. Increasingly, what is being banned with the involvement of the government and with the heavy leaning of the government is not necessarily untruthful but simply unpopular. And one more thing to note in today's heated election litigation world is that something that was deemed to be settled two years ago, for example what Pennsylvania's election laws were, one could have said was well settled by the courts in the days after the 2020 election. And yet even today we are engaged knee deep in litigation over whether ballot boxes were permitted by the law, whether they were consistent with the constitution, and so forth. That's ongoing litigation two years after the 2020 election. So that sort of highlights the dangers of the government defining the truth.

 

The First Amendment protects false statements of fact. It prohibits the government from abridging speech especially on the basis of viewpoint absent judicial scrutiny. But recently the government has turned to other avenues beyond simply passing statutes that say what is true and what is false, what is permitted and what is not permitted. And so the government is now using private actors to set up what the government says is the government's truth. As recently as 2019, the Supreme Court ruled that private entities can qualify as state actors in three instances. At least one of which is when the government is acting jointly with private entities. It has been difficult previously for litigants to persuade courts that a private social media company's actions can be considered state action but increasingly courts seem to be more open to that concept.

 

In Manhattan Community Access Corporation v. Halleck, 2019 -- that's the case I was mentioning. Recent comments from the white house and subsequent government actions have shown that joint collaboration between the government and social media companies continues to suppress speech. About one year ago today, the press secretary in the white house made multiple admissions regarding the Biden Administration's agenda of deciding what speech Americans are allowed to hear, noting that senior staff of the white house are "in touch with social media platforms to address the big issue of misinformation." Misinformation has been told from that podium to be a number of things that I think today's media would agree may be in fact true. So the definition of what is true and what is false is changing in real time right in front of us.

 

Ms. Psaki also stated that the white house has increased its disinformation research and tracking and that, for example, within the Surgeon General's office we're flagging problematic posts for Facebook and boosting trusted content. The President of the United States has told us that Covid is a pandemic of the vaccinated and yet today, he has been diagnosed with Covid. So wrapping up my comments here, I'll give you a couple more examples of the dangers of the government's actions in this regard. The government has viewed itself as the arbiter of speech most recently to mask the public from false information. But as I mentioned, the definition of what is true and what is false has consistently been evolving to the point where the fact that the government keeps changing those goal posts, I think as a citizen, is actually undermining public confidence in both the government and what is true and what is false which itself is a risk in our society for the government to first set up truth and falsity and then move those goal posts. So from that perspective, I think there are real harms for the government to be actively involved in this arbitration of truth and falsity.

 

You similarly see the government collaborating with social media companies who of course are regulated by the government, and so even if, as some on the right would say, they're inclined to toe the government line, even if you take that factor away, whether you're right or left, if you're regulated by the government, you're going to want to please the regulators by toeing that line. And if that keeps changing again, Americans will distrust what is true and what is false.

 

In 2018, California created the Office of Election Cybersecurity to "educate voters with valid information." And the government spent about $25,000,000 in California to contract with a political consulting firm to identify truth and falsity in social media platforms and then work with the government to inform those social media companies to take these posts down. This is the subject of a lawsuit that I'm involved with, O'Handley v. Padilla. The office quickly became a political weapon for censorship of non-left-wing voices. Leading up to and following the 2020 election, Twitter, at the explicit direction of this government taxpayer funded Office of Election Cybersecurity, removed approximately 400 tweets, or posts a day posted by social media influencers questioning the legitimacy of the 2020 election.

 

Coming forward to today, we still see litigation over the very issues that were mentioned in some of those social media posts. Were ballot boxes allowed? How did the machines function? This is something certainly -- prior to the 2020 election, the left questioned the effectiveness and the accuracy of these voting machines. And then in the Biden Administration, you have the Disinformation Governance Board, the federal government's most recent attack on citizen's freedom of speech. There was a heartwarming hue and cry across the political spectrum about the dangers of a federal government agency defining what is true and what is false, and the whole idea was quickly trashed. It may rear its ugly head again. I suspect probably around the time of the 2024 election. But for now, I think we are safe from the Disinformation Governance Board. So in conclusion, I'll hand it over to the next panelist. But I think we can have a vigorous discussion about the role of the government. In my opinion, that role should be virtually nil particularly in the most controversial issues of election, speech, and matters of public policy such as Covid misinformation. Thank you.

 

Hon. Donald Palmer:  Thank you, Harmeet. Catherine.

 

Catherine Ross:  Thank you so much, and it's wonderful to be here with this great group and this audience. So I want to begin by just talking about the legal definition of lies which is a very narrow one and which is the one I use. Lies are verifiable factual falsehoods where the liar knows that the statement is false and intends others to believe the statement. So there's an intent requirement. And I'm already seeing a little daylight between Harmeet and myself because I think that there are verifiable factual falsehoods. And some of them include things like scientific knowledge about Covid.

 

So when the First Amendment says, "Congress shall make no law," which we understand to mean the government at every level shall make no law infringing freedom of speech, it doesn't really mean no law at all. And as you said in your excellent introduction Commissioner, there are a number of exceptions, many of which stem back -- go back to the common law and many of these involve falsehoods like defamation claims, fraud, speech in the service of crime, perjury, false advertising, and so forth can all be regulated and punished without conflicting with the First Amendment. But the constitutional status of lies is quite complicated and remains not fully articulated.

 

Modern discussions begin with the case United States v. Alvarez. The 2012 case that you mentioned in your introduction again which involved the Stolen Valor Statute, lying about holding a medal of honor. So the bottom line of that opinion, which surprised many people at the time because it seemed a departure from existing law, was that the government cannot punish lies just because they are false even if they are verifiably false statements of fact or what the lead opinion called "straight out lies." I call them 'bald faced lies." But it did not say that those -- that such lies are beyond the reach of the government. It said that, in order to penalize such lies, the government must either show harm to others or unjustified benefit to the liar. And I call that the "something more" requirement -- pulling language from some of the opinions. And so this makes the inquiry into the harm that lies cause a critical factor.

 

Many things were left unresolved by the opinions including what kind of harm, what level of harm, how serious must it be before the government can regulate it? And critically important, what standard of review the courts should bring to statutes and regulations that apply to lies because of course the standard of review is really important in First Amendment law. If there is a protected speech right, the normal standard of review is strict scrutiny. But in a series of footnotes and separate statements in the three opinions, the Court declined to specify the standard of review and used some language that is often applied to intermediate review -- to rights that are not quite as squarely established. Intermediate review must have an important purpose rather than a compelling purpose. And that suggests to scholars and people who are studying this carefully that perhaps lies are not quite as protected as some other kinds of speech.

 

So the title to my book is actually followed by a question mark. A Right to Lie? What's the Bottom-Line Answer? The First Amendment protects even factual falsehoods, but there is no affirmative right to lie. So if you go to court and say my right to lie has been infringed, it is unclear how the Court is going to regard that as a First Amendment claim. It's kind of like a constitutional grey zone. There's some protection but we don't know how much and what the government is required to show to overcome that protection. But it's very important that Justice Alito who authored a dissent and -- that was signed by two other justices -- would have allowed the government to punish Alvarez's stolen valor lie. He did this by a slight of hand because he proposed some adjustments to the statute which is generally not something the Court should do. But it's very important that the Court's composition has changed substantially since 2012 and Justice Alito's view that lies have no importance, no inherent value could now convince a majority of the current Court. And that adds another level of uncertainty.

 

So if the First Amendment is an almost insurmountable bar to government regulations -- and I agree that it is, and I argue that it really should be. And one of the reasons is that to identify a lie requires us to look at both the content and the viewpoint of the message which are the highest sins in the First Amendment hierarchy and the principle that debate, especially on public issues and politics, should be uninhibited, robust, and wide open and that often involves the airing of a lot of falsehoods. And Sullivan also discussed that. And most importantly, there is -- judges of all political stripes agree, no place under the First Amendment for George Orwell's government as arbiter of truth. The government cannot determine what is true or false. But I would argue that when the government speaks, when it publishes counter speech to disinformation, when it has websites saying, "We don't think you should believe the following rumors about Covid," or "We don't think you should believe that the election was stolen." The government can say whatever it wants, and it can express its own viewpoint. So I think that is an important distinction to keep in mind as we're talking.

 

So what does Alvarez tell us about things like lies about electoral legitimacy and the status of election denials? I would argue that lies about the legitimacy of elections, if they are knowing and after courts have resolved and after challenges have been brought, are very very harmful to the body politic. In fact, I can think of very few things that cause greater harm to others and potentially advantage the liar if the liar is a candidate or office holder then what we now call the "Big Lie." And another example of very harmful lies are lies about Covid which caused, according to many scientific studies, a very very large number of needless deaths.

 

But let me focus on the "Big Lie." And here I'm talking about every level of government, not just the federal government, and if there's anything that can be done despite Alvarez and the First Amendment. So the first thing is -- "Big Lie," if that doesn't satisfy the harm, the "something more" that Alvarez requires, it is hard for me to imagine what could. And this is not a political statement. The Honorable Michael Luttig said, "The big lie is the biggest threat to democracy today and we have to address it."

 

And something I did not have the imagination to forecast when I put the finishing touches on my book in May of 2021 when it still appeared there would be republican buy in into an inquiry of the events of January 6th, I did not imagine the tenacity of the "Big Lie" and the impact that it would still have today on our ongoing politics or that there would be what appears to be an ongoing conspiracy to undermine electoral legitimacy and looking forward to 2024. So in the midterm elections and the elections for state offices critical to the election outcome, governors in particular and secretaries of state -- today 17 of the 27 states electing a secretary of state this year, there is at least one person in the republican primary who is an election denier. And in the eight primaries held so far, half of those election deniers have become the official republican candidate for secretary of state to oversee the next round of elections. And in some states, both the gubernatorial candidate and the secretary of state candidate are election deniers. A good example is Arizona. And then we have Mastriano in Pennsylvania who first rose to prominence as an election denier. So this is a level of harm and crisis that may call for us to really press to see if there's any way consistent with the First Amendment to reign in these efforts to undermine democracy.

 

Roughly 70 percent of republicans continue to believe that the 2020 election was stolen, and even more concerning, the proportion of Americans who now say they support the use of violence to address their political concerns, largely attributable to the "Big Lie," is rising. The study of out the University of Chicago last fall found that about nine percent of Americans or 21 million support the use of violence. And the most recent study that came out just this week said that 20 percent of Americans support the use of violence to resolve their political differences which is about 50 million Americans. So how are we going to combat these very measurable dangers posed by certain kinds of lies, particularly the "Big Lie," as well as rapidly declining confidence in US elections?

 

So I think there are some things that can be done even though I am an ardent supporter of a serious understanding and enforcement of the First Amendment. So I would like to focus on high government officials and current office holders because I think they have a very outsized impact on popular opinion when they promote the big lie and that would include those who have just exited office no matter how unwillingly. And my argument is it's not the First Amendment, it's the lack of political will. So very briefly, while a person is in office, Congress should use their oversight and enforcement powers to indicate pervasive repeated lies in the face of contrary evidence are a violation of the terms of office because the office holders are public employees and governed by a different First Amendment standard.

 

The state election statutes have 16 states, almost a third of our states, currently have statutes on the books that are transparently unconstitutional. And every time one of these statutes have reached the courts, the courts have overturned the statutes which is why there are only 16 today. And often because the state cannot be the arbiter of truth but also because they're carelessly crafted. They apply to anything sent by anyone, anything that's not truthful designed to influence the election, lies about the opponent but not about yourself. So they're overbroad they're over narrow. They do not define lies and the courts, when it's time to enforce, have had a very hard time determining what's a lie. What's opinion? What is just innuendo? So there are many many problems with enforcement as well as crafting, but can we craft better ones?

 

And then there are many private actions that can be used to penalize lies that do not involve state action which is all that the First Amendment governs except for the use of courts. But we already have that when we bring -- when we rule on defamation actions. So these include civil suits against the propagators of the "Big Lie" by victims of violence. And there are several pending in the D.C. courts now. Some brought by members of Congress. Some brought by law enforcement officials who were injured and so on.

 

There can be professional discipline for lawyers who promote the "Big Lie." And a federal court in Michigan referred nine attorneys who represented the former president including Sidney Powell and Lin Wood referred them to their state bar associations for disciplinary action for lying in court about the legitimacy of the election. And Powell's preposterous defense, "Nobody could have believed my claims about the election," which she was bringing in state after state after state and promoting in public speeches. They were not presented as satire or opinion. And finally, defamation suits such as those being brought by the providers -- the major providers of election software and machines against Fox and numerous other media outlets and commentators. So those are all things that are consistent with the First Amendment that can reign in lies. And so my -- the underlying theme here is the First Amendment doesn’t tie our hands and make us participants in a suicide pact.

 

Hon. Donald Palmer:  Thank you, Catherine. Eugene, go ahead and --

 

Eugene Volokh:  Right. So there's much that I agree with in with my fellow panelists and much that I disagree with. I just want to start by pointing out that this really is a very serious problem especially with regard to political violence, which I abhor. But if you look at polls -- this is for the most extreme form of political violence. This is approval for assassinating a politician who you think is harming a country or a democracy. Among younger men, unsurprisingly, knowing what we know about age and about sex, you'd think there would be more support but it's shocking the level of support. That 44 percent of younger democratic men and 34 percent of younger republican men say that they would approve of that.

 

Now, whether they'd actually pull the trigger, I would hope very very few would, but maybe they're doing it for performative reasons. They don't even really support it, but they just want to show they support it to show the magnitude of the righteous anger. But it is very sobering to do that. Interestingly, for women it's somewhat less but actually on average, it's a little less probably within the margin of error. Interestingly, younger republican women are actually more likely to respond with a "yes" than younger republican men. Vice versa for democratic women and men. So actually, there's less of a gender gulf than you'd think.

 

But in any event, both parties -- obviously people would support assassination for different reasons. But it is really quite appalling what's going on. Now, how much of that is prompted by lies about people, lies about the results of elections or results of Supreme Court decisions or whatever else and how much of it is prompted by opinion, "Oh, this person is a tyrant. This person is an oppressor. This person deserves punishment." It's hard to tell, but this is a very serious problem.

 

The other thing that I want to point out is that this is a very old problem. In fact, the argument that lies need to be suppressed in order to prevent insurrection and violence are as old pretty much as the republic. The very first really prominent controversy about the freedom of speech and of the press that should be there -- the press -- was about the Sedition Act of 1798. So here is a quote from I believe it was chief justice -- it was Justice Iredell speaking about -- to a grand jury in the case of Fries about the Sedition Act. "If a man attempts to destroy the confidence of the people in their offices, the supreme magistrate and the legislature, he effectually saps the foundation of the government." Actually, I'm sorry. That may have been Chase. Justice Chase in a different Sedition Act case. But that's the concern.

 

The Sedition Act, remember, was seen by the federalists, was praised by the federalists as a big advance in protection for free speech because it only punished false statements about the government -- not just opinion, not just true statements like the old English rules, but false statements and only malicious ones -- only ones that were really seen as lies. And the justification was precisely the one that we're hearing now. That it is dangerous for a democracy to have people sap the foundation of a government by lies about the government. All right. So this is from I think the other one, Justice Iredell, "Can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with the express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow?"

 

In fact, in response to an argument that we're now a republic and we can't have the government decide what's a lie and what's truth in these kinds of political debates, he says "No. In a republic more is dependent on the good opinion of the people for its support than in a monarchy, so these lies are especially dangerous. Take away from a republic the confidence of the people and the whole fabric crumbles into dust." Those are not ridiculous arguments. They're very sensible arguments. I think our legal system has been right to ultimately reject them when it comes to lies about the government, not because such lies are harmless, but because putting the government in the position to decide, "Well, that's a big lie, and you're a big liar. And we're either going to throw you in jail or expose you to financial ruin through civil liability." That is a more dangerous problem. But it's an interesting question whether it is. Maybe. Maybe we should get back to something like the Sedition Act. Certainly, we're talking about it. It's funny, for the first time in my lifetime, seditious -- saying somebody's engaged in seditious advocacy has now become again a pejorative. Well, the country was founded in sedition. And the first attempt to punish sedition was condemned. But again, everything old is new again.

 

Now, if you look at what the Court has said about lies, there's no doubt -- I entirely agree with Catherine -- that many kinds of lies are punishable. Liable -- by the way criminal liable laws are constitutional too. Liable, fraud, perjury, and a wide range of other kinds of lies, including some that aren't tremendously damaging like false slight invasion of privacy which is basically telling things about people that are false that sufficiently and reasonably distress them rather than just damage their reputation. That too can lead to civil liability. At the same time, the Court has, I think quite expressly said, certain kinds of lies are categorically constitutionally protected. One item is lies about the government, again this is seditious liable.

 

Now, New York Times v. Sullivan of course has the famous holding that lies about government officials are unprotected -- but only lies. Reasonable mistakes effect or even negligent mistakes effect are protected. That's the famous holding of New York Times v. Sullivan. The less famous one is that you can't have persecutions and in context. It meant civil liability too because that's what it was talking about in New York Times v. Sullivan for liable on government. That it had said, "No court of last resort has held or even suggested that these kinds of seditious liable persecutions are constitutionally permissible." And in context, the Court was actually saying they are not permissible. One of the things that it said in New York Times v. Sullivan was, "Look, the statements in that ad in the New York Times weren't even really about Sullivans as an alternative holding." The very fact that they were about the police commission generally, even though there were polls -- there were errors there -- that makes them categorically protected. Doesn't matter if that's a deliberate lie or an innocent mistake -- categorically protected.

 

Also Justice Alito in his dissent in Alvarez -- and on this point, the two justices in the concurrence agreed. So this got five votes, and there's nothing in the plurality that suggests that they disagree. The plurality that actually provided even more speech protection generally speaking said that the lies about philosophy, religion, history, the social sciences, the arts, and the like are also categorically constitutionally protected. And Justice Alito made clear, it's not because he thinks those -- that you can't -- there's no such thing as truth as to those subjects. Sure there's such a thing as truth as to those subjects. And it is especially perilous, especially dangerous for the government to decide what is true and what is false in those areas.

 

Now, of course this leads to complicated questions about what do you do about things that are in between. So what about those statutes that ban false statements in election campaigns? On one hand, they're particularly likely to be dangerous because there's an election campaign looming, there may be relatively little time for counter speech. On the other hand, there's particular peril in putting government officials in the position of deciding what speech about other government official -- possibly their political buddies -- should be constitutionally punished. In fact, sometimes it may be even criminally punished. Generally speaking, the courts that have recently considered this -- I was going to say about the last 20 years or so -- three or four decisions have struck down those statutes about election lies. But some earlier decisions from I want to say the late '80s and '90s upheld them. So there's something of a mix.

 

So one question is, do you treat them more like fraud? Which is trying to get money through lies, which is punishable. Should getting someone's vote through a lie be treated the same way? Or should you -- and by the way, incidentally, this is especially true if it's a candidate. Right? If a candidate is running for office, he's running for a paid job. So you can say, "Well, if the candidate -- not just the parties -- but the candidate is lying about his record or about the government or about anything else, he's trying to defraud us into paying him money." I mean, to be sure, probably not doing it for the salary. But still, he'd be getting a salary. Should we treat that as financial fraud? Or should we treat that as these kinds of lies about the government or about history or about social sciences. There's no reason I think physical sciences would be any different here.

 

So that is an interesting and difficult question. My inclination, in an article that is going to be put out by the Night Foundation kind of paper series, is to say that what the Court is looking to is alternative institutions. That one reason we think lies about the government should be not punishable by the government is the government is in an excellent position to respond. Lies about -- it's not going to do a perfect job of responding to them but better than if we set up a legal process for it. Lies about history and social science, there is the government that might respond to them, there are academic institutions, there's the media and the like that are more likely to do it. Whereas lies about, "Did Volokh have his hand in the petty cash?" Well, that's not something in which there are alternative institutions that are likely to speak to that, especially if I'm not a high, high, high level government official.

 

So there's a little bit of this in Gertz v. Robert Welch as the public figure private figure distinction. But I think it's possibly more generally applicable and might help explain what's going on because remember, there are these holdings. Right? Some kinds of lies, the Supreme Court says, rightly or wrongly, the government is the arbiter of truth. It can have a liable prosecution. It can have a                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           prosecution. Any statement that the government can't determine truth, it's an overstatement. It's not actually accurate. On the other hand, any statement "Well, of course lies are unprotected," that too would be an overstatement because there are these holdings on the other side. So where you draw or how you draw that line is a very difficult and interesting question.

 

Let me mention a few other things. I have this list, but Catherine had already gone through some of these. So one thing that's I think is important to remember -- and by the way this comes up in liable cases too. It's not reason enough to totally junk liable law, but it may be reason we may be worried about the government restricting lies about the government or asserted lies, is the line between fact and opinion is often pretty hard to draw.

 

So let me give you two historical examples. One is US v. Cooper, 1800 Sedition Act persecution. There are three statements said to be lies and the third is complicated, so I just don't want to spend too much time on it. But here are the first two, "Nor were we yet threatened in 1797 under President Adams's auspices with the existence of a standing army. Our credit was not yet reduced to the lowest to borrow money at eight percent in time of peace." Today, we probably say, "Well, you know, this is a matter of opinion." Maybe a matter of fact whether in fact this was eight percent was the rate. But if it was, well then is it a credit reduced so low? Is it just the natural order of things.? It's a question of opinion. "No," says Justice Chase in instructing the jury which ultimately convicted Cooper. Cooper was sent to jail for this.

 

First of all, we don't have a standing army because a standing army is an army that doesn't need congressional reauthorization. And under the constitution, the army always needs, every two years, congressional reauthorization. So the army we do have, that's not a standing army because that's not what standing army means. I'd say that's a matter of opinion, right? At least many people today and presumably I think some people at the time too, took the view that, "Well, if it's out there and we have it employed for then even if it requires authorization, it's still a standing army, unless we have reason to think it's just for like a three-month period and it's sure not to be reauthorized." Likewise, what was Justice Chase's point about the eight percent? He had no quarrel with the eight percent. He said, "It's not time of peace, right? We're in the middle of this war against France."

 

Now, in fact, if you look at the history textbooks, it is sometimes called the quasi war. Interestingly, later, some years later, President Adams himself called it the half war. So it's a judgement call, right? Are you going to call it a war or not? Today, it would be viewed as a matter of opinion. At least, I think it should be. But it's understandable that, at times of hot partisanship, things that are opinions are recast as facts. So this is from Shaker v. US. This is from a real war -- World War I. Nobody doubts that. But there were very -- there was a German language publication which was seen as sympathetic -- well, it was sympathetic to the Germans and hostile to the allied cause. And there were some small errors that were pointed, but more broadly he said, "Well, the statements were deliberately and willfully false because the point of them was to represent the war wasn't demanded by the people but was the result of executive machinations." Again clearly, I would say a matter of opinion but wasn't so clear to the judge and the jury and the prosecutor and the majority of the justices on the Court.

 

So look I'm a supporter of vaccination. I'm a supporter of various anti Covid measures, and I'm sure there were various things, I know there were various things that were said that were false. Although, I'm not sure they were lies. I think people believe it -- maybe foolishly believe it. But a lot of other things that people fault others for spreading are opinion like, vaccinations. Are we sure they're safe? Aren't there some adverse effects? Should we really be experimenting with this? I think the answer is, on balance, as best we can tell, they are pretty safe. But all of those questions it seems are legitimate questions to ask, and at most are expressions of opinion that I -- there is reason to doubt that. And in fact, it's a plausible opinion. On balance, I think the argument for vaccination is quite strong, and therefore that's why I reject those particular positions. But it's not because they're lies or even because they are factual falsehoods -- at least, those examples are. Maybe others might be. But rather because we think they are unsound opinions.

 

So let me just close with a last point about government speech because I do agree very much that the government often can and should point out errors and respond to them. It's the government's job. If there is some false statement, not even a lie, an honest mistake about American foreign policy that's printed in the New York Times, I certainly hope the State Department says, "Wait a minute guys. You say that we said this. That's just not true. We don't want the rest of the world to believe this thing that isn't true. Here's the truth." Of course, sometimes they themselves are the ones who are lying. But if there's an error to correct, they should correct. The CDC should correct errors or even respond to what it sees are unsound medical opinions with regard to communicable disease. And relatedly, I think election officials, when people are saying, "Oh, the election is -- election machines are insecure, or these results were falsely reported." It's their job to report the truth and to respond to errors.

 

What's more, and this is where we're getting to harder questions, lower courts generally say that requests not to speak and to block speech are generally constitutional. So one classic example is, CIA calls up the New York Times and says, "We hear you're about to write a story about this operation. Look, we can't stop you. We know we can't stop you. We tried once but we failed. But can you see your way clear to not including these details or delay the story or whatever else? Because otherwise you're going to ruin this operation, you're going to jeopardize our interests." And the New York Times sometimes will say, "Yes." So is that unconstitutional? I doubt it. But in any case, lower courts say it's not. On the other hand, orders, and pressure "Do it or else we'll take away your license," or something, that is generally unconstitutional. And one of course interesting question is, how do you draw the line?

 

Let me close with one interesting point. I don't know what to make of this. The rule appears to be different for First and Fourth Amendments. What I say is true for the First Amendment. But say the government calls me up and says, "Volokh, we know that you have this condo you're renting out. And we know, under your contract, you're entitled to go there periodically and kind of check up on things. Next time you do that, do you suppose you could kind of look around, nose around and see if you can find evidence of drug dealing or something else?" And I say, "Sure. I'm a good citizen." That turns that search into a government search. That turns my action -- that request turns it into government action. So as to the Fourth Amendment, government requests that private entities do something do make it state action. As to the First Amendment, again lower court case laws pretty solid on this. It doesn't. What's the right answer? Don't know. But with that, I close.

 

Hon. Donald Palmer:  Well, thank you. That was all very informative. I think that one of the things I want to ask a question -- we don’t have a lot of time, but maybe all three could answer this, and Harmeet you can go first. The first -- there was a lot of discussion about prosecution for liable on government. That's the action of the government that harms a citizen for voicing an opinion. Or like some of the legislation, I believe, may impact the access of a candidate for ballot. Those are sort of activities that will impact a citizen for voicing free speech even if it's a lie. So there's a level of dangerousness, I think, when you analyze that. But I think that the reason I want to start with Harmeet is, the sort of the soft power of government where the government doesn’t necessarily take this action but it uses social media or the media to sort of                                                                                                                                                                                                                                                                                                                                                                 and it may not be a prosecution but there is some impact on free speech, even if it's false. What are your thoughts on that? It's not a prosecution, but it is some impact on a voter. Or not a voter, but someone who's speaking on a topic that may end up being false. Harmeet. You're on mute, Harmeet.

 

Harmeet K. Dhillon:  Okay. So I think we all agree on this panel that the government has a right to speak. That's not disputed. The problem with what I'm seeing -- and I have a vested interest -- I represent numerous plaintiffs who have sued Twitter and other social media companies for censorship is that, if you have the white house press secretary correcting things that people are saying out there that are wrong and then the white house press secretary goes one step further and says, "Not only am I going to, from that podium, correct what's wrong, I don’t want anybody to be able to be heard who's saying these things that I disagree with." And how are people heard today particularly during Covid when we weren't out and about? Our movement was limited. People are increasingly speaking through social media.

 

So if Rogan O'Handley, a lawyer named D.C._Draino on twitter, who has 400,000 or 800,000 followers is deplatformed, suddenly he cannot be heard for the most part at all. Now, some of the things that Mr. O'Handley was banned for speaking included simply putting up a photograph of the capitol surrounded by barbed wire saying, "Most votes in U.S. history?" Is that a lie? That's a statement of opinion that is mocking. It's satirical. That is the speech for which this citizen was permanently banned from speaking on Twitter at the request of California's government.

 

So while it is correct statement of the law that currently, and I know this because I've lost these cases. Courts have not been willing to step in and say that partnership between the government and social media companies that are regulated by the government is First Amendment censorship. I think it should be, and I think that frankly, when the correct set of facts presented in front of the correct judge materializes, I think that eventually, that law is going to change. I also think that there need to be some additional legal protections for users of social media so that they don't get the effective free speech death penalty because the white house press secretary or the Secretary of State of California who's auditioning for United States Senator in an administration to replace the -- and I'm talking about our Senator Padilla who became a senator after some of these actions were taken. I think there's a huge conflict of interest there.

 

And so I saw a comment in the chat about, "Hey, can we make this less partisan?" Well, election speech is by necessity partisan, and it is not a republican or democrat problem. One of the issues here that we talked about before this panel which was very interesting is Professor Ross has had a hand in drafting legislation in Oregon, she alluded to, that would disqualify a candidate from being able to be on the ballot if they contest the results of an election -- any election in the United States that has been adjudicated by the courts. Okay. It's a fair attempt to impose an objective standard. So it isn't Jenn Psaki's opinion. Or it isn't something disputable. It is true or false that a court ruled on an election. But every lawyer listening to this discussion knows that courts get it wrong. Courts get it wrong a lot. And if you're a frequent litigator, I would say courts get it wrong half the time. And so is that really -- should that really be the standard for whether you can speak about the outcome of an election?

 

Today, to this day, many people on the left would contest the accuracy of the outcome of Bush v. Gore. So that's an example on the other side. Many democrats did not show up for the inauguration of President Trump in 2017, not believing that he was validly elected, etc. So this is a bipartisan problem. I don’t think anybody should be banned from being on the ballot for that. They're entitled to their opinion, and that would be an inappropriate exercise of government authority. I believe that statute would be unconstitutional. So hopefully, that addresses the question.

 

Hon. Donald Palmer:  Catherine, Harmeet mentioned the statute in Washington. Could you -- do you have a response to that? And my general question about, where is the line that the government can -- go.

 

Catherine Ross:  Sure. It was actually Washington not Oregon.

 

Harmeet K. Dhillon:  Sorry.

 

Catherine Ross:  And I want to begin by just saying how I came to be involved because there was an article in the Washington Post saying that Governor Inslee wanted to introduce legislation to keep people off the ballot if they were election deniers and it was going to be modeled on defamation and incitement law. And I was quoted in that article from an article that I had written a number of years earlier explaining why, as a general matter, it would be almost impossible to craft a constitutional state regulation on lies during election campaigns. And so I reached out to the governor's staff and I said, "If you're going to do that, would you at least let me comment on it and try to help you steer clear of some of the real pitfalls in these statutes," because I thought, if they're going to try, then let's not be cavalier and sloppy, and because I had been convinced by the events since January 6th that election denialism was a huge huge problem.

 

Although, I do agree with much of what Eugene said about the fact that this isn't a new problem. And that we don’t want to overly relax First Amendment standards out of panic or partisanship. So I got involved and I was highly skeptical until the last minute. Although, we made a lot of progress. And one of the things was that I said, "People have to be held accountable by -- they have to buy in in some way." And so that was adding a pledge that is essentially the same as the oath of office the winner would have to take to uphold and abide by the laws and constitution of the state and the United States. And it specifically calls attention to this new section of the law that says, "Once challenges are resolved -- and that's where we're separating the adjudication of truth from the adjudication of an offense under the statute -- the candidate undertakes in the future not to knowingly, maliciously, or recklessly lie about the outcome."

 

And that's a condition of getting on the ballot. That if you want to participate in the Super Bowl, you are going to accept the referee's rulings. Yes, courts make mistakes all the time. And as a constitutional law professor, I am often in the position of explaining to my students when I think the courts got something wrong. But that's still the law and the rule of law. So they are not punished for anything they have said prior to becoming candidates. They are not barred from continuing to voice opinions about what happened in the election. They can say, "I think there was a lot of fraud and that's why I'm appealing all the way up to the Supreme Court." What they can't do is state as a verifiable fact something that has already been appealed to the highest levels where the courts have said there was no fraud that could have changed the result in this election. And --

 

Hon. Donald Palmer:  So Eugene --

 

Catherine Ross:  -- and it applies only to the candidates who live in the state not the president or vice-presidential candidates.

 

Hon. Donald Palmer:  So we're about to wrap this up. Eugene, if you have a comment on -- you looked at election laws -- what's permissible, what may not be permissible for the government to get involved with. What are some of your thoughts on the conversation we just had here, and we'll wrap this up.

 

Eugene Volokh:  Sure. So one thing to keep in mind is that there are different kinds of proposals. If we were only talking about restrictions on candidates for office, let's say, and conditions for elections, it's an interesting point. Yeah, we can require, for example, of them to take an oath that we can't require normal citizens to take. Although, we do actually become citizens, let's say. But that's not the only thing that I've heard. Right? I think I've been hearing calls for allowing civil liability again potentially financial ruin, and this is the government acting as sovereign and not just as employer for entities that convey information that is seen as sufficiently harmful and may indirectly cause violence. Yeah, can imagine a situation where somebody falsely overstates the magnitude of police brutality and as a result there's a riot and some police officer is shot. I don't think that there ought to be liability in that kind of situation. Likewise with regard to elections. So I think we do need to look closely at what's being proposed.

 

I will close though with -- that I do think there is some room for certain kinds of restrictions. The Court hinted at that and maybe -- although, it's ambiguous, I mean, outside of Voters Alliance v. Mansky that when you're talking about particularly narrow and verifiable false statements, not just verifiable because some court controversially perhaps resolved it, but because it's a matter of very particular detailed fact about the mechanics of elections. That might in fact be punishable. There's a Missouri statute, for example, that tries to outlaw the --basically, known falsehoods about the where, when, how, and who of elections. 

 

Catherine Ross:  Yes. That's --

 

Eugene Volokh:  So something that says, "The polls close at six," even though you know they close at eight. But you're trying to sort of suggest to people, "Well, it's too late." Or let's say that -- there was one prosecution where somebody said, "You can vote for Hilary Clinton by texting Hilary to this number." Clearly, wrong. And it may be, in fact, that at that point, and this is actually one of the difficulties, may be more a joke or parody or satire or whatever else rather than an outright factual assertion. That's always a line that has to be drawn including liable cases. But it may be as to those very specific and detailed questions. There might be some room for regulation. I would be much more skeptical of attempts to allow either criminal liability or civil liability. Again, we're talking I think about proposals go way beyond disqualification from office for saying big picture statements about contested questions about election procedures or about public health or about history or social science or what have you.

 

Hon. Donald Palmer:  With that, we're going to wrap this up. I think we've run out of time. I want to thank everybody for this. The courts are divided and so shall this panel. But we will wrap this up. I'm going to turn it back over to Ryan.

 

Ryan Lacey:  Well, thank you so much Commissioner. And on behalf of The Federalist Society, I would like to thank the panel for the benefit of their valuable time and expertise today. And I would like to thank you the audience for joining us and participating. We welcome listener feedback by email at info@fed-soc.org. And as always, please keep an eye on our website and your emails for announcements about upcoming webinars. Thank you all for joining us today. We are adjourned. Thank you everyone.