Wes Henricksen (Barry University School of Law) has posted Disinformation and the First Amendment: Fraud on the Public on SSRN> Here is the abstract:
The recent proliferation of disinformation has left legal scholars, legislators, and courts at a loss as to how to address, or even if to address, this growing problem. To begin with, spreading disinformation most often breaks no law; it is neither a crime nor a tort. Given this fact, many scholars conclude that if Congress or a state passed a law curtailing disinformation, such a content-based regulation would likely not survive a First Amendment challenge under strict scrutiny. This Article argues that much of what constitutes disinformation has no First Amendment protection in the first place because it is fraud on the public, and therefore fraudulent speech. This proposition is, admittedly, a radical one because the fraud exception to the First Amendment is normally deemed to apply only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraud, such as securities fraud or false advertising. However, a review of how disinformation is created, spread, and bought into, as well as the harm it causes, reveals not only that disinformation is not only fraud on the public, and therefore fraudulent speech, but that it is the most harmful kind of fraud, and therefore should be the least protected. Although novel, this argument is supported by jurisprudence and public policy. Accordingly, I conclude it is urgent that legislatures and courts deem disinformation that meets specific criteria to be unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of disinformation, further damaging public discourse and public health, worsening economic inequality, and generating more attacks on our democracy.