Home Politics Second Part: First Amendment Limits to State Laws Targeting Election Misinformation

Second Part: First Amendment Limits to State Laws Targeting Election Misinformation


This is Part II of a series of posts about First Amendment Limits to State Laws Against Election Misinformation20 First Amend. L. Rev. 291 (2022). This is an excerpt (minus the footnotes), from the article. You can find the complete PDF here.

Despite widespread outrage over misinformation being spread in political campaigns, federal regulation is not applicable to election-related speech. Federal law is absent from this area, except in the contexts of campaign finance. While federal laws that govern political speech are primarily focused on advertising, the existing federal law does not apply to advertising. It is mainly directed at traditional media such as print and broadcast. Federal agencies, such as the Federal Trade Commission (FTC), have “truths in advertising” laws which target misleading content in ads. However, those laws are only applicable to advertisements that “affect commerce,” which the FTC interpreted as preventing it from being able to regulate political advertisements.

However, the states have not retreated. State legislatures have been trying to pass statutes that prohibit false speech in elections since at least 1893, when Minnesota made it a crime to defame campaign speech. Today, there are 48 states and the District of Columbia with statutes that could regulate election-related speech. The statutes can be divided into two types: those that directly regulate election-related speech, and general applicable statutes that prohibit intimidation or fraud related to an election.

Before we look at how the First Amendment may affect state efforts to regulate election fraud, it’s helpful to review the full range and depth state laws that attempt to correct lies, intimidation, or fraud in elections. We developed a multi-level taxonomy that identifies the speech types targeted by various state statutes to aid in our assessment. The most basic level can be divided into eight categories according to the subject matter of the statutes. These include speech about (1) candidates, (2) ballot measures, (3) voting requirements or procedurals, (4) source authorization or sponsorship or endorsement of political advertisements, (5) endorsements, and (6) incumbency. Speech that involves intimidation, (7) fraud, or corruption is also included. Many statutes can fall under more than one of the top-level categories.

Each category was further sub-divided based on whether the statute required knowledge or intent before liability is attached. A few statutes, for instance, require that false speech be committed with reckless disregard of truth or knowledge. Some statutes also impose liability if the speaker knew the information was incorrect. This is sometimes called “constructive knowledge”. Other statutes impose liability regardless or knowledge. This is known as “strict liability.”

A. A.

The types of speech that are prohibited by statutes directly targeting election-related speech can vary greatly (remember, most states have multiple types of statutes).

  • Sixteen states There are laws that prohibit the making of false statements about candidates for public office.
  • Fourteen states Statutes prohibiting false statements concerning a ballot measure, proposal or referendum before the electorate.
  • Thirteen states Statutes prohibiting false statements about voting procedures or requirements.
  • Eleven states There are laws that prohibit the making of false statements about the source, authorisation, sponsorship, or sponsorship for a political advertisement, or about the affiliation of a speaker with an organization, candidate or party.
  • Nine states Statutes prohibiting false statements by candidates, parties, or…

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