Political Speech

Abstract

Abstract Political speech unquestionably occupies the core of the First Amendment. Citizens’ freedom to learn about and discuss politics is essential to self-government, as the right to vote means little without the ability to inform oneself about issues of the day. And government regulation of political speech presents unique risks, as limitations on political speech could make it more difficult for voters to hold government officials accountable. Yet political speech can also cause damage, including damage to the electoral system. False information about candidates or issues can mislead voters into making improvident choices, and false statements about election procedures (e.g., polling-place location, election dates, voter qualifications, and voting methods) might cause people to miss their opportunity to cast a valid vote. Thus, the right of free speech in the political context can be both especially valuable and especially harmful. The Supreme Court has often spoken of political speech as the most important, and therefore the most protected, type of speech. In practice, however, the Court has often been willing to accept the government’s proffered justification for restricting political speech. Some academics, citing free-speech abuses in the digital age, have urged an interpretation of the First Amendment that would permit regulation of even more political speech. This chapter argues that false statements of fact—even if on political subjects—should be unprotected if they are made with “actual malice.” Protected political speech, however, should be immune from government regulation unless the regulation is truly the least-restrictive means of achieving a compelling interest.