When More Speech is Not Enough: An Argument for the Regulation of Political Falsehoods

Abstract

The U.S. Supreme Court has declared “[u]nder the First Amendment there is no such thing as a false idea.” Following the marketplace of ideas model the Court has held that, while false statements do not deserve constitutional protection, the solution to factually false speech is more speech setting the record straight rather than government regulation of that speech. This article interrogates the idea that fact checking and debate are adequate solutions to the problem of lies in politics and proposes the best solution would be a campaign ethics council. It begins with a discussion of the judicial discourse surrounding the regulation of factual falsity, looking at how the courts have ruled in cases involving false speech especially the recent decision in U.S. v. Alvarez. This is followed by a discussion of how states restrict political falsehoods through various statutes. Finally, following the decisions made in Pestrak v. Ohio and Michigan v. Dewald, this article offers a proposal for one way to create a campaign ethics council that could be used as a deterrent for factual falsehoods in political campaigns without offending the First Amendment.