Disinformation and the First Amendment: Fraud on the Public

Abstract

If one deceives another in a manner that profits the deceiver and harms the victim, it is fraud, a crime and a tort. However, if one deceives a great number of people in a manner that profits the deceiver and harms the public, it is generally neither a crime nor a tort. It is often legal to mislead the public for profit. As a result, harmful disinformation is disseminated constantly by politicians, the media, and corporations. This disinformation causes a multitude of harms to human health, life, and property, to the environment, and to democratic institutions and systems. Because of the emergence and growth of the internet, email, and social media, disinformation spreads faster and is, in many measures, more problematic today than it has ever been. And it is getting worse. Disinformation cannot, in general, be stopped without infringing on fundamental First Amendment rights. If Congress or a state passed a law curtailing disinformation, or any broad category within it, such a content-based regulation would not survive a First Amendment challenge under strict scrutiny. Why? Because disinformation and other terms like it (e.g., fake news, lies, and misinformation) are broad and vague, and encompasses both protected and unprotected speech. This Article argues that some of the most harmful disinformation, which results in widespread damage, should be deemed unprotected speech because it is fraudulent speech and not merely false speech. Harmful disinformation that amounts to “fraud on the public” is distinct from (and worse than) other kinds of disinformation. The Article sets forth elements that must be met to qualify as fraud on the public. Conduct that qualifies as fraud on the public, rather than merely spreading disinformation, should be deemed either to fit within the fraud exception to the First Amendment, or to have its own carve-out from First Amendment protections. This argument is, in some ways, a radical one; the fraud exception to the First Amendment normally applies only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraudulent speech, such as securities fraud or false advertising. However, because fraud on the public is carried out in the same manner as fraud on the individual, and because the harm it causes to individuals, society, and the environment is as bad or worse than fraud on the individual, fraud on the public, like fraud, runs counter to the very aims of the free speech provision of the First Amendment. As a result, fraud on the public should be deemed unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of the most harmful disinformation, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.