The article is here; the opening paragraphs:
We live in an era of profound anxiety about the threat that lies, and false speech more generally, pose to American democracy. It's not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. Meanwhile, blatant lies, hyperbolic rhetoric, and misleading claims about important issues of public controversy—critical race theory and its use in public elementary schools, the risk of COVID-19, the reliability of the 2020 election results—saturate many reaches of the mass and social media and motivate, or at least justify, all manner of both elite and popular political mobilization.
The obvious political potency of these kinds of lies raises many questions about what kind of society we live in, and about our political past and future. But it also raises deep questions for and about free speech law—perhaps the most fundamental being whether the First Amendment, as it is currently understood, enables or impedes the collective pursuit of something we might call "truth." I spent the 2021–2022 academic year at the Knight First Amendment Institute at Columbia University, exploring these questions through a series of roundtable discussions culminating in a major symposium in April 2022 on "Lies, Free Speech, and the Law."
A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) "the best test of truth is the power of the thought to get itself accepted in the competition of the market." But as contemporary experience makes quite clear, this assumption is not always true—or, at least, may not be true on a time horizon that prevents society from incurring significant costs—especially if we equate the market, as First Amendment law tends to do, with the hurly burly public marketplace of ideas. There are many reasons why an idea might win out over its competitors on the television screen, in the newspaper, or at the water cooler, other than because it accords better with empirical reality. It might reinforce its audience's assumptions about the world and therefore be easier to embrace than more disruptive alternatives. It might be promoted by an institution or person that is widely viewed as trustworthy. It might be repeated so frequently it becomes one of the taken-for-granted background assumptions of our lives. Or it might give its audience permission to do what they really want to do. The love of truth is not the only motivation that leads listeners to embrace or reject ideas. The result is that there is no reason to think that the fact that an idea wins in the public marketplace of ideas means it must be true, or is likelier to be true, than an idea that fails to win adherents.
And yet, First Amendment law makes it quite difficult (although, as I discuss below, not impossible) for the government to exclude from public discourse assertions about the world that are patently false—that do not, in other words, come anywhere close to satisfying the criteria that have traditionally been used to distinguish truth from falsity. This is not necessarily a doctrinal error, and it is not simply a consequence of courts' embrace of the arguably false Holmesian dictate from Abrams. It is also, and to a much greater extent, a consequence of judicial fears that, were the government granted the power to punish false speech, the dynamics of political competition and the vulnerability of government officials to the same cognitive biases that affect how you and I receive information would make that power susceptible to abuse, and thereby result in a public sphere even more saturated with untruths than the one we live in today. In the wake of the Trump presidency, these fears appear very well-justified. Certainly, the fact that one of President Trump's favorite means of deflecting attention away from his own lies and failures was by accusing his enemies of indulging in "fake news" suggests how powerful a political weapon false allegations of falsity can be. The result, nevertheless, is a body of law that, notwithstanding its frequent invocation of the importance of safeguarding the search for truth, often leaves "truth" vulnerable to the manipulation of media moguls, party bosses, and charismatic speakers.
