The article is here; the Introduction:
As articulated by Justice Brandeis in Whitney v. California (1927), a foundational assumption of First Amendment jurisprudence is that the best remedy for potentially harmful speech, including false and misleading speech, is "more speech, not enforced silence." This extended Oliver Wendell Holmes' "free trade in ideas" model of speech in which the ultimate good is reached when people are free to exchange ideas in a marketplace without fear of government punishment (Nunziato 2018). However, the idea that an unregulated marketplace of ideas leads to the greatest public good has been increasingly challenged as our politics has become more contentious, polarized, and burdened with conspiracy theories that could potentially spread unimpeded through online networks (e.g., Sunstein 2021).
The January 6 Capitol riot provides the most striking example of this current state of affairs: Supporters of the sitting president, believing conspiracy theories about a stolen election (many of which were transmitted through social media), attacked the Capitol to disrupt the certification of the 2020 election. Of course, this is not an isolated incident—believers of conspiracy theories have been linked to numerous instances of societal harm. Supporters of the conspiracy theory-laden QAnon movement have engaged in harassment, kidnappings, domestic terrorism, and killings (Bump 2019). Those exhibiting beliefs in COVID-19 conspiracy theories—of which there are many—refuse social distancing, masking, and vaccination (Romer and Jamieson 2020), allowing the virus to spread unhindered. If conspiracy theories are causing people to engage in violent or otherwise harmful actions, doesn't the government have the responsibility to prevent those harms by limiting the reach of conspiracy theories?
It is clear that conspiracy theories (and other similarly dubious ideas) are subject to existing jurisprudential doctrine regarding defamation, imminent lawless action, threats, and false statements (Han 2017, 178). Indeed, one could argue with relative ease that at least some conspiracy theories serve no purpose in contributing to the marketplace of ideas, promoting healthy democracy, or aiding in the search for the truth, and that any personal or societal harm stemming from such conspiracy theories outweighs the merits of protecting them. But as with all other forms of speech, circumstances matter, and under current legal frameworks, only particular conspiracy theories—those that fall into one of the categories of low-value speech listed above—will be denied constitutional protection. The result is that most conspiracy theories, even those that are intentional lies, will constitute protected speech.
