This is part III in a series of posts discussing First Amendment Limits on State Laws Targeting Election Misinformation, 20 First Amend. L. Rev. 291 (2022). What follows is an excerpt from the article (minus the footnotes, which you will find in the full PDF).
The Supreme Court has not directly addressed whether election-related lies (or other forms of election misinformation) can be regulated by the government without violating the First Amendment. As a result, while the Court's First Amendment decisions provide a general framework for evaluating the constitutionality of state election-speech statutes, they leave a number of difficult issues unresolved, including whether election-related speech enjoys greater or lesser constitutional protection than speech in other contexts and whether the government has a sufficiently compelling—or even important— interest in curtailing or eliminating various unsavory election-speech practices. Our goal here is not to fully resolve these uncertainties, but merely to highlight the constitutional challenges current state statutes are likely to face and to potentially guide future legislative efforts in this area.
[A.] Determining the Appropriate Level of Judicial Scrutiny
