By: Wes Henricksen* and Broderick Betz**
Published: March 19, 2023
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 peddled to the public in bad faith and for personal gain should, like other kinds of fraud, enjoy no First Amendment protections.
Those who create and disseminate harmful falsehoods aimed at misleading people should not be rewarded, but punished. Fraud should be regulable, whether aimed at one victim or at millions. Although this principle is simple to articulate, crafting a workable framework of speech restrictions to capture fraud on the public poses significant challenges. Nevertheless, given the harm resulting from allowing unfettered fraud on the public, it is urgent that we find ways to close the loophole that allows people to profit off of manipulating public opinion by spreading intentionally false speech. Closing this loophole will not only further numerous important free speech policy aims; it will also help protect against future attempts to thwart democracy.
*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.
Suggested Citation: Wes Henricksen & Broderick Betz, The Stolen Election Lie and the Freedom of Speech, 127 Penn St. L. Rev. Penn Statim 111 (2023).