False and misleading political speech has become a fact of life in elections. On an intuitive level, politicians' willingness to use false and misleading political speech feels troubling. Many discussions of false and misleading political speech frame the issue as one of morality. But moral concerns alone fail to make a normative case for regulatory or legislative intervention.
This Article attempts to make that normative case. False and misleading political speech inhibits, and even prohibits, the deliberation and discussion that both the United States Constitution and the United States Supreme Court have indicated are essential to American democracy. False and misleading political speech erodes the ability of voters to cast informed votes, meaning votes may no longer constitute voters' informed consent. In this way, false and misleading political speech strikes at the heart of the collective decision-making process that sits at the core of American democracy.
Accordingly, regulatory intervention is justified. Such intervention could draw on consumer protection law, and the regulatory framework used in New Zealand, to regulate false and misleading political speech in a manner consistent with the First Amendment.
About the Author
Rayhan Langdana, Senior Associate, Quinn Emanuel Urquhart & Sullivan UK LLP. LL.M (University of California, Berkeley), LL.B (Honours), B.A. (University of Auckland). My sincere thanks to Professors Ted Mermin and Abhay Aneja at Berkeley Law, Fulbright New Zealand Te Tūāpapa Mātauranga o Aotearoa me Amerika, and the Spencer Mason Trust. All views are the author's own.
Citation
98 Tul. L. Rev. 877