Thoughts about regulating lies and dishonest free speech

Cass Sunstein’s 2021 book, Liars: Falsehoods And Free Speech In An Age of Deception, is focused on existing limits on free speech in the US, and the pros and cons of further regulations on free speech. Sunstein is a Harvard law school professor and legal scholar. The book is short (133 pages), non-technical and easy to read. Sunstein’s assessment of America’s situation, analysis and reasoning leads him to propose this:

False statements are not constitutionally protected if the government can [objectively] show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route.

Since Sunstein’s book published in 2021, the damage and intensity of dishonest or dark free speech in politics, e.g., demagoguery, lies, defamation, divisive crackpot reasoning, irrational emotional manipulation, etc., have significantly worsened under Trump and MAGA politics, tactics and policy. Most safeguards and norms that tended to limit dark free speech harms have weakened or fallen completely. The damage to society, American democracy, government and commerce is vast. It is mostly hidden by demagoguery, distractions, defections and lies that soften and normalize free speech harms. Much of the damage will not be reversible any time soon, if ever.

At present, laws regulate several kinds of dark free speech. The main ones are false advertising or fraud, defamation (written libel or spoken slander), perjury under oath in court proceedings, non-trivial false statements to government officials, child porn, incitement of imminent lawless action, “true threats” of unlawful violence, copyrights, and trade secrets. In the case, United States v. Alvarez, the USSC rejected broad bans on “mere lies” when they don’t amount to harms like fraud, perjury, or defamation (significant harm to reputation).

Thus in politics, most dark free speech in the form of demagoguery, lies, crackpot conspiracy theories and irrational emotional manipulation (bigotry, racism, etc.) are constitutionally protected and the government cannot regulate it. But the 1st Amendment right to free speech does not apply to private entities, e.g., blogs like BNR, newspapers, social media or broadcast media. Private entities can regulate what protected speech they allow and disallow.

The pros and cons of speech regulation

Sunstein points out the complexity. He points out that the chances of truth surviving in the face of hostile power are very low. Lies and deceit can always push truth out of the world. Facts are very fragile things, easy to distort and destroy.

He carefully distinguishes between falsehoods based on honest mistakes, intentional lies, and bullshit, i.e., content based on no concern for truth or harm. Honest mistakes are human and unavoidable. But so are lies and BS. The level of harm that falsehoods cause varies from grave and literally lethal to nonexistent. The probability and timing of potential harm varies from (i) certain to highly improbable, and (ii) immediate to distant future. Those factors are relevant to considering regulation of lies. He does not propose regulating honest mistakes because an intent to deceive is absent.

Sunstein points out that liars often believe that their lies are morally justified. In their minds, the ends they believe in lying for justifies their intentional deceit and the risks of harm to innocents their deceit might cause. For example, belief in lies about vaccines can and has caused people to reject them. That has led to the deaths or serious harm of some of them or others they infect. 

Sunstein also points out that lying and falsehoods violates people’s power and autonomy. The reasoning is simple. When people have been deceived, and they think and act of the basis of deceit, deceit has taken from them their power to think and act on the basis of truth. In other words, power flows from the deceived to the deceivers. Deceit is thus inherently authoritarian, corrupt or usually both. So are the deceivers.

The obvious problem inherent in regulating dark free speech, bias and abuse of power, is inherent in the human condition. The natural human urge is to use power to ward off criticism and embarrassing truths. Authoritarians are heavily biased to abuse their power to insulate themselves from criticism and embarrassing truths. Trump is a current example. He attacks and sues the mainstream media and political opponents, but has no basis in law to do so. If there were laws regulating dark free speech, morally rotted authoritarians like Trump would falsely claim that inconvenient truth from his targets are lies and subject to being shut down by the law. That has already happened. Link, link, link

Finally, Sunstein points out that the default human condition is to trust what they hear. That can flip to distrust if the listener is informed of relevant facts or has reason to distrust a known dishonest source, e.g., chronic liars like Trump and MAGA elites. The problem is that most people don’t or can’t do fact checking. Liars and deceivers usually have at least as much access to persuadable minds as truth tellers.

Q: Should objectively demonstrable lies, falsehoods, and BS that are likely to cause significant harm be subject to more stringent regulations than is currently the case, or is the threat of authoritarianism too great to justify that?

Reviews of Sunstein's book: 

The Tyranny Of Loud Idiots 

Sunstein, Cass R. Liars: falsehoods and free speech in an age of deception

MAGA supporters scammed by fake AI influencer who turned out to be a man

 A medical student has made thousands of dollars by selling photos of a fake MAGA woman he created using AI

If you take a look at Emily Hart's Instagram account, which has since been removed, you'd see the American blonde nurse ice fishing, drinking cans of Coors Light, and shooting at the rifle range.

One of her captions read: “If you want a reason to unfollow: Christ is king, abortion is murder, and all illegals must be deported,” while another said: “POV: You were assigned intelligent at birth, but you identify as liberal."

And surprise, surprise, the account blew up, with millions of viewers believing that Emily Hart was in fact a real woman.

Through the account, Sam also started flogging MAGA-themed T-shirts, at which point the scammer was making a few thousand dollars every month.

Sam brutally added: "The MAGA crowd is made up of dumb people - like, super dumb people. And they fall for it."

Both accounts seem to have been taken down by Instagram because they violate the rules for not disclosing AI-generated media.

https://www.tyla.com/news/politics/ai-generated-maga-woman-republicans-scammed-influencer-338384-20260422

 

The NYT increases scrutiny of the USSC’s partisanship, authoritarianism and secrecy

Secret shadow docket law

Context

Last February the NYT expanded its coverage of the USSC (US Supreme Court)(not paywalled), finally recognizing the stunning amount of power the court has and its shocking secrecy, and unprincipled partisanship and authoritarianism. Since Trump put 3 radical right authoritarian judges on the bench, that court has been a key source of power for Trump, the authoritarian MAGA wealth and power movement, and the rise of American kleptocracy. 

Prior NYT coverage was limited to one reporter covering mostly arguments and decisions. In Feb. that was expanded “to look further at the incredible power of the nine justices and how the least transparent branch of government operates”. The new focus is on court power, ethics, and internal dynamics. That was years overdue. With some luck, this is better late than never.

The rise of MAGA partisanship and secrecy

On April 18, the NYT published an article, The Inside Story of Five Days That Remade the Supreme Court, (not paywalled), based on previously secret USSC memos from 2016. Those documents at this link, show the partisan MAGA take-over of the court and the rise of a weaponized shadow docket that allows the court to decide major cases without a full hearing or any public notice. The trigger for the takeover was lawsuits filed against the EPA over pollution regulations that pollution-for-profit business hated and wanted to get rid of. The six MAGA judges decided to use the shadow docket to gut and neuter the EPA in as much secrecy and opacity as possible.

The April 18 article on the shadow docket uses the internal 2016 memos to reconstruct how the court’s current emergency‑order practice took shape in a climate case against Obama’s Clean Power Plan, West Virginia v. EPA. In that episode, a 5–4 conservative majority blocked a major national climate rule before any lower court had ruled on its legality, doing so in a one‑paragraph order with no reasoning. Scholars and the NYT reporters see that 2016 order as the practical “birth” of the modern shadow docket. This is MAGA’s way to quietly decide high‑stakes, often partisan outcomes on an expedited basis. Those decisions come with little legal briefing and argument, limited internal discussion at the court, and no public explanation. This flimsy policy opened the door to later shadow docket decisions in later major disputes over presidential power and other national issues.

The MAGA judges at the time in 2016 (Roberts, Scalia, Kennedy, Thomas and Alito) found a way to bypass norms that required full merits briefing, oral argument, and reasoned opinions before deciding major questions of law. Chief justice Roberts was a driving force behind the creation and normalization of this stripped-down political way to decide major cases in secrecy. Roberts pushed the MAGA judges into the purely partisan step of blocking Obama’s climate plan before any lower‑court adjudication or legal arguments. Legal scholars now argue this secrecy method is routine in presidential‑power cases. Shadow docket secrecy allows the USSC to shape and create policy while leaving the public in the dark about its legal justifications. Legal scholars point out that those decisions are almost always partisan and unprincipled.

The previously secret memos include draft proposals, responses, and strategic back‑and‑forth among the justices. Those documents clearly show candid partisan political calculations. Legal scholars see these memos as archival material they assumed would remain sealed until long after the current justices had left the bench. The NYT reporting here provides an unusually detailed, contemporaneous window into how the Court moved itself onto a more aggressive, less transparent footing. 

MAGA prejudges the EPA -- that’s partisan politics, not neutral judging

So, what did the memos show? They show what a person who has paid some attention to the USSC would expect. The Republican judges made clear they were going to decide against the EPA. Their minds were closed.[1] They wanted to issue a stay to block implementation or enforcement of the law, allowing pollution-for-profit to continue. According to legal scholars, that was not judging a dispute on the merits. It was partisan prejudging to get the decision that MAGA wanted. Those Republican judges completely ignored factors mitigating in favor of the EPA including no mention of (1) any climate risks, (2) public health benefits, and (3) EPA’s estimate of $55–93 billion in annual benefits by 2030. To get their partisan decision, all of that had to be ignored because it strongly favored the EPA’s position. Link 1, link 2

Footnote:

1. One legal scholar commented: What you see in those memos is they prejudged. There is no combination of legal or policy arguments that will change their mind. Their mind is inalterably closed.

Christian nationalism theocracy attacks birth control

A NYT opinion (not paywalled) discusses the Christian nationalist attack on federal birth control programs. A bipartisan effort created Title X in 1970 as the first federal program dedicated to family planning and reproductive health. Title X was the government's responding to high rates of unintended pregnancy that fueled poverty, worsened health outcomes, and destabilized family life. The program, backed initially by bipartisan support and championed by President Richard Nixon, dramatically expanded access to contraception. The program is credited with preventing tens of millions of unintended pregnancies, sharply reducing teen birth rates, cutting child poverty, and saving governments substantial Medicaid costs, all while improving women’s physical and psychological health, economic stability, and children’s outcomes. Modern contraception is a medical miracle that has saved the lives of millions of women.

However, current Title X funding guidelines aim to redirect the program away from its core mission of preventing unintended pregnancies and toward promoting conception. This change in focus aligns with the priorities of anti-abortion activists, and MAHA-aligned wellness propaganda. The new guidance minimizes effective contraception, barely mentioning it while elevating “fertility-awareness-based methods”, which have much higher failure rates than IUDs and other modern methods. The theocratic guidance also prioritizes male fertility counseling and lifestyle issues like pornography use, low sperm count, and environmental toxins, while downplaying contraception’s role in healthy pregnancies and chronic-disease treatment. 

Although Biden-era rules still require Title X funds to support access to a range of modern contraceptives, they are vulnerable to reversal by theocratic zealots. The program has not recovered from Trump’s first-term restrictions that drove clinics out and halved the number of patients served. This shift directly threatens affordable contraception and the future of Title X. It also marks the collapse of a longstanding bipartisan consensus that even poor women should have the publicly supported ability to shape their own futures and families. Link, link, link