Module 3: Content

Misinformation and Disinformation Online

Disinformation is false or misleading content that is spread with an intention to deceive or secure economic or political gain, and which may cause public harm. Misinformation is false or misleading content shared without harmful intent though the effects can be still harmful.

United States

Definitions

According to the European Commission’s High Level Group (HLEG), disinformation is defined as ‘false, inaccurate, or misleading information, designed, presented and promoted to intentionally cause public harm or for profit’. Misinformation is defined as ‘misleading or inaccurate information shared by the people who don’t recognize it as such’.

In the U.S, clear definitions for "misinformation" and "disinformation" are not fully codified across all statutes. However, governmental agencies like the Cybersecurity and Infrastructure Security Agency (CISA) provide generally accepted definitions. Misinformation is typically understood as false or inaccurate information shared without the intent to deceive. It occurs when incorrect information is spread inadvertently, often due to misunderstandings or mistakes, rather than a purposeful intent to mislead. Disinformation, by contrast, is false information deliberately crafted and disseminated with the intent to mislead, manipulate, or cause harm. Disinformation is frequently used in contexts involving political, social, or economic influence campaigns, such as election interference or propaganda efforts.

Freedom of Speech and Legal Protection

In On Liberty, John Stuart Mill makes the case in favour of freedom of speech arguing that truth and ideas can only be achieved if both true and false statements and opinions are allowed to remain uncensored. Indeed, in the United States, false statements are often granted legal protection so as to protect other values and avoid a chilling effect on public discourse. As will be discussed below, the guarantee of free speech in the First Amendment also implements the values that underpin it, which include facilitating representative democracy and self-government, advancing knowledge and truth in the marketplace of ideas, promoting individual autonomy, self-expression and self-fulfilment.

Under the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As a general rule, the government may not regulate speech “because of its message, its ideas, its subject matter, or its content.” [Police Dep’t of Chicago v. Mosle, 408 U.S. 92, 95 (1972)].

The Congressional Research Service (CRS) published an In Focus report in 2022 that says: 

• The Supreme Court has said the Free Speech Clause protects false speech when viewed as a broad category, but the government may restrict limited subcategories of false speech without violating the First Amendment.
• Defamation, fraud, political advertising, and broadcast speech are subject to special consideration. 

Case note: New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

New York Times Co. v. Sullivan was a landmark U.S Supreme Court ruling on freedom of speech protections under the First Amendment to the U.S Constitution to restrict the ability of public officials to sue for defamation. The Court held that, in order to prove libel, a public official must show that what was said against them was made with actual malice – "that is, with knowledge that it was false or with reckless disregard for the truth." This imposes a high threshold as it only applies to defamatory speech against public officials and only if actual malice is shown. The reasons are twofold. Protection of false speech is based on the concern of a chilling effect, where regulation of false speech would also chill true speech through fear of breaking the law. The Supreme Court has recognized that false statements may not add much value to the marketplace of ideas. Even so, there is a concern that by prohibiting false speech, the government would also “chill” more valuable speech, meaning it would cause people to self-censor out of fear of violating the law. Consequently, the First Amendment creates “breathing space” protecting the false statements and hyperbole that are “inevitable in free debate.” In the words of Justice Brennansaid: ‘even a false statement may be deemed to make a valuable contribution to a public debate’.

Strict Scrutiny in Content-Based Legislation

As a general rule, if a US law targets speech based on its expressive content, that content-based regulation will trigger strict scrutiny analysis. Under strict scrutiny, a law is presumptively unconstitutional unless the government can show the challenged law is the least restrictive means of targeting speech while also serving a compelling governmental interest. 

Case note: United States v. Alvarez, 567 U.S. 709 (2012)

In United States v. Alvarez, the U.S Supreme Court ruled that the Stolen Valor Act of 2005, a federal law prohibiting false statements about receiving military decorations or medals, was violating the First’s Amendment guarantee of the right to free speech. The four-Justice plurality opinion clarified “that falsity alone may not suffice to bring the speech outside the First Amendment.” Thus, the plurality opinion applied strict scrutiny to the Stolen Valor Act as a content-based law.  Moreover, the Court held that the law was not sufficiently narrowly tailored because it punished false statements regardless of the context or purpose. Accordingly, there was no “direct causal link” showing the law’s broad scope was necessary to the government’s goal of protecting the integrity of the military honors system.

Election Speech

False, misleading, and intimidating speech has proliferated in both online and real world spaces, particularly as it relates to elections. Although the right to free speech is generally protected by the First Amendment, that right does not extend to saying anything, anywhere, in any manner. When governments identify efforts to intimidate, deter, or otherwise interfere with voters, the First Amendment allows them to safeguard the fundamental right of citizens to vote freely without fear, threat, or undue influence. Governments can also take steps to prevent, suppress, or remove false and misleading speech that seeks to disrupt the process of voting. 

Are election related false statements Protected by the first Amendment?	Generally, yes, but not if they interfere with the voting process. The Constitution protects lies, especially if they are not under oath and can be easily countered (United States v. Alvarez). However, false statements can be regulated in contexts such as fraud, defamation, libel, statements to government officials, perjury, misrepresentation as a government official, and misleading advertising or commercial speech.
What types of false statements about elections can be constitutionally prohibited?	Regulation allowed for misleading voting process information: Governments can prohibit false or misleading speech about voting logistics, like when, where, or how to vote, to protect voter access (Minn. Voters All. v. Mansky). The government’s interest in protecting voting rights is emphasized, especially during election campaigns when false statements can have adverse public consequences (McIntyre v. Ohio Elections Comm’n).
Can the government regulate other types of election-related speech?	Yes, when necessary to protect voting integrity. The Supreme Court has recognized that government has compelling interests in protecting voters “from confusion and undue influence,”and in “preserving the integrity of its election process” [Burson v. Freeman].  “Preventing voter intimidation and election fraud” is “necessary,” and “ensuring that every vote is cast freely, without intimidation or undue influence, is  a valid and important state interest” [Brnovich v. Democratic Nat’l Comm.]  Thus, where it is necessary to regulate speech about elections—a content-based category of speech that is subject to strict scrutiny—the government can take steps that are the least restrictive means necessary to protect this compelling interest.

Case note: Social Media Influencer Sentenced for Election Interference in 2016 Presidential Race

In a recent case, the Department of Justice successfully prosecuted a social media influencer who made online posts ahead of the 2016 election to “disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to ‘vote’ via text message or social media, which was legally invalid”.  Although the defendant challenged his prosecution by claiming that his deceptive posts were “political speech,” a federal court found that his speech was “merely a single element within a course of criminal conduct”—namely, a conspiracy to interfere with the right to vote [United States v. Mackey]. Accordingly, the speech was “integral to criminal conduct” and thus unprotected by the First Amendment. The court also found that intentionally false speech about voting procedures did not fall within the core of political speech and that it could be regulated by the government where it did not address the substance of what was on the ballot but instead dealt with access to the ballot. Thus, speech that harms the integrity of the election process—such as misinformation about where, when, or how to vote—can be regulated even where speech about a candidate or a candidate’s views, even if false, could not be.

Role of Social Media Platforms

Recent events such as the Cambridge Analytics scandal or the allegations of Russian interference into the 2016 elections have shown how important online intermediaries and platforms are.

Online intermediaries and social media platforms have a large amount of freedom when it comes to speech violations. Section 230 of title 47 of the U.S. Code, part of a codification of the Communications Act of 1934 (Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) has been interpreted to mean that operators of Internet services are not publishers (and thus not legally liable for the words of third parties who use their services).

• Section 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
• Section 230 confers full immunity on ‘interactive computer services’, from liability for torts others commit on their websites or online forums, even if the provider fails to take action after receiving notice of the harmful or offensive content.
• Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.

Case note: Murthy v Missouri, 603 U.S (2024)

In Murthy v. Missouri, the Supreme Court rejected a suit brought by two states and several social media users against Executive Branch officials and agencies, claiming that government officials’ contacts with social media companies about misinformation related to the COVID-19 pandemic and the 2020 election violated First Amendment guarantees against government censorship [Murthy v. Missouri]. The Court emphasized that social media companies already had policies against misinformation and disinformation, which they enforced by “exercising their independent judgment” even after consulting with government officials as well as outside experts. The Court held that the plaintiffs lacked standing, in part because they could not “link past social media restrictions” imposed by the social media companies to the government officials’ communications in which they identified potential misleading and false speech. Most major social media companies have in place policies against election-related misinformation and disinformation. After Murthy, social media companies remain free to enforce these policies on their own platforms by exercising their own judgment and conferring with outside experts, including government officials who may reach out to alert them to potential false statements. Unless there is “evidence of continued pressure” from government officials to interfere with companies’ independent application of their content- moderation policies, companies are “free to enforce, or not enforce, those policies,” even if those decisions are informed by contacts with government actors.

State Legislation

The federal government does not regulate false statement about the subject-matter of elections, but many states do. These laws impose liability for a number of different types of false claims.

Thirty-eight states have statutes that directly target the content of election-related speech:

• Sixteen states have statutes that prohibit false statements about a candidate for public office. 
• Fourteen states have statutes that prohibit false statements about a ballot measure, proposal, referendum, or petition before the electorate. 
• Thirteen states have statutes that prohibit false statements about voting requirements or procedures.
•  Eleven states have statutes that prohibit false statements about the source, authorization, or sponsorship of a political advertisement or about a speaker’s affiliation with an organization, candidate, or party. 
• Nine states have statutes that prohibit false statements that a candidate, party, or ballot measure has the endorsement or support of a person or organization. 
• Seven states have statutes that prohibit false statements about incumbency.

A number of states have false statement laws that explicitly apply to online actions and that can be applied to election deception.

• California law prohibits “political cyber-fraud,” which includes intentionally causing visitors to believe advocacy or information posted on a political website represents the views of candidate or someone in favor or opposed to a ballot measure, when it does not [Cal. Penal Code 18320-18323).
• Texas law (and California law until 2022) prohibits distribution of election-related “deepfakes,” which use artificial intelligence to create highly realistic videos that appear to portray real people when they do not.