This is part V 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).
Even if most of the state statutes we reviewed end up being found to be constitutional, their enforcement will not eradicate lies and threats in elections, let alone eliminate the flow of misinformation that is polluting public discourse. The problem is simply too big. Any legislative approach to combatting election misinformation must be part of a broader strategy that seeks to reduce the prevalence of misinformation generally and to mitigate the harms that such speech creates.
Part of the challenge stems from the fact that we may be moving to what Richard Hasen calls a "post-truth era" for election law, where rapid technological change and hyperpolarization are "call[ing] into question the ability of people to separate truth from falsity." According to Hasen, political campaigns "increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools." In response to these profound changes, election law must adapt to account for the ways our sociotechnical systems amplify misinformation. Furthermore, we must recognize that legislating truth in political campaigns can take us only so far; there are things that law simply cannot do on its own.
