Part V - Civil Society and Tackling Disinformation

14 Knowledge Institutions and Resisting ‘Truth Decay’

Vicki C. Jackson

14.1 Introduction

Today is a time of retrogression in sustaining rights-protecting democracies, and of high levels of distrust in institutions.¹ Of particular concern are threats to the institutions, including universities and the press, that help provide the information base for successful democracies. Attacks on universities, and university faculties, are rising. In Poland over the last four years, a world-renowned constitutional law theorist, Wojciech Sadurski, has been subject to civil and criminal prosecutions for defamation of the governing party.² In Hungary, the Central European University (CEU) was ejected by the government, and had to partly relocate to Vienna,³ and other attacks on academic freedom followed.⁴ Faculty members in a number of countries have needed to relocate to other countries for their own safety.⁵ Governments attack what subjects can be taught – in Hungary bans on gender studies;⁶ in Poland, a government minister issued a call to ban gender studies and ‘LGBT ideology’.⁷ Attacks on academics and universities, through government restrictions and public or private violence, are not limited to Poland and Hungary, but are of concern in Brazil, India, Turkey and a range of other countries.⁸ Attacks on journalists are similarly rising.⁹ These developments are deeply concerning. The proliferation of ‘fake news’, doctored photos and false claims on social media has been widely documented.¹⁰ Constitutional democracy cannot long be sustained in an ‘age of lies’, where truth and knowledge no longer matter.¹¹

Turning from the world to the United States of America, the position of the USA in rankings of respect for political and civil liberties has suffered a marked decline.¹² Likewise, the USA has seen a decline in its ranking for academic freedoms.¹³ Waning confidence in the value of a college education has been accompanied by a pronounced partisan skew in evaluating the value of higher education.¹⁴ Suspicion of expertise, along with tolerance by significant parts of the public and by leading political figures for outright fabrications, have increased.¹⁵ Bans on teaching Critical Race Theory were encouraged initially by an executive order in 2020 banning the teaching of ‘divisive topics’.¹⁶ Tracking language from this executive order, a number of states enacted bans, including Iowa’s 2021 law banning institutions of higher education from promoting ‘specific defined concepts’ including ‘race or sex scapegoating’ and teaching that ‘that the United States of America and the state of Iowa are fundamentally or systemically racist or sexist’.¹⁷ Whether or not the federal courts ultimately will uphold this law, its enactment is plainly inconsistent with basic ideas of pursuing truth through academic freedoms.¹⁸

This chapter argues that constitutional democracies need ‘knowledge institutions’, in part because of the role they can play as intermediary organizations for the public in sorting out genuine claims of knowledge from false claims and in checking false claims by those with power. These ‘knowledge institutions’ should be recognized in comparative constitutional studies as essential elements of a constitutional infrastructure. Section 14.2 introduces a general claim about knowledge institutions in constitutional democracies.¹⁹ Section 14.3 raises a set of concerns about the implications of some recent US Supreme Court case law for the knowledge functions of public universities. It argues that these decisions reflect a fundamental failure to appreciate the role of these and other knowledge institutions in the infrastructure necessary for constitutional democracies to sustain themselves.

14.2 Knowledge Institutions in Constitutional Democracies

Justice Felix Frankfurter once suggested that government-employed college ‘teachers’ are vital in developing public views that are ‘disciplined and responsible’, it being their ‘special task to foster those habits of open-mindedness and of critical inquiry, which … make possible an enlightened and effective public opinion’.²⁰ Knowledge institutions are central to these goals. This section will discuss some definitional questions about knowledge institutions, and explain the need to focus on those institutions in democracies..

14.2.1 A Simple Definition

Knowledge institutions are ongoing entities that have, as a central purpose, the dissemination, preservation or production of knowledge.²¹ They aspire to some degree of objectivity, reliability or accuracy in evaluating claims and evidence, including the consideration of opposing evidence or views. In doing so they apply distinct disciplinary methodologies designed to enhance the search for better understandings of the world;²² they seek to maintain an epistemic openness, consistent with commitments to knowledge based on evidence and disciplinary methodologies that, over time, may lead to changed or expanded understandings.²³ In order to aspire to objectivity in the pursuit of knowledge, independence in the application of disciplinary methods and openness to having one’s beliefs dis-verified through those methods are required. To be sure, what is accepted as true may vary over time; scientific findings may be based in part on assumptions that are matters of legitimate public debate;²⁴ but the processes of knowledge development allow for correction and improvement and, over the long run, real lives of real people have thereby improved.²⁵

Knowledge institutions include ongoing entities that are public and private – universities, the free truth-seeking press,²⁶ courts and some government offices (such as the Census Bureau or other government offices charged with collecting and disseminating accurate, reliable data).²⁷ They are not a ‘branch’ of government but an essential part of the infrastructure of democratic constitutionalism. Knowledge institutions act as informational intermediaries for the public, helping to navigate among the many claims (some false, some true, some uncertain) now being disseminated.²⁸ A diverse group of knowledge institutions populated by diverse professionals is a valuable part of the knowledge infrastructure, providing different perspectives and cross-checks on developing understandings of knowledge.

14.2.2 Knowledge

The concept of knowledge is a contested one. There are important philosophical disagreements about the nature of epistemic claims; but there is fairly wide agreement on the proposition that knowledge should be understood to mean ‘justified true beliefs’, or that truth alone does not establish knowledge without something like some further grounds or account for why something is true.²⁹ Yet, I claim, attempting to govern based on knowledge is likely to yield better outcomes than not doing so, even though ‘knowledge’ is in some respects socially constructed and subject to change as scientific paradigms shift or new evidence is discovered challenging orthodox beliefs.³⁰ ‘Knowledge’ here is understood not in absolute terms but rather, as referring to the best current understanding of descriptive and causal realities, reflecting justified current beliefs about what is true, based on reliable evidence.³¹ To recognize this kind of role for ‘knowledge’ is to embrace the distinction between facts and opinions, to accept that there are understandings of the world about which, for practical purposes, there is a truth of the matter.³² But it also embraces the idea that knowledge must remain open to being corrected or displaced by new, verifiable, knowledge claims.³³

14.2.3 Why Focus on Institutions?

Many constitutional rights provisions – including those of expression, of association, and of the press – serve both democracy-enhancing and knowledge-producing functions, as argued by Alexander Meiklejohn and Justice Oliver Wendell Holmes.³⁴ Given the robust presence, in the USA and many other constitutional democracies, of judicially enforced protections for freedoms of speech, association and the press, why focus on institutions? Some excellent scholarly work has recently argued that the meaning of freedom of expression must be analyzed differently within different institutional contexts.³⁵ My own view is in great sympathy with these, but focuses on the institutions as objects of protection as well as the individual speech or speakers within the institutions.³⁶

To be sure, individual freedoms are of great importance. They can and do promote the goal of developing and diffusing knowledge. But knowledge institutions – with their aspirations towards objectivity, their role as disciplinary gatekeepers to review the soundness of what is being taken as reliable information, and their epistemic openness to new evidence – offer some distinct advantages in the protection of rights and advancement of knowledge not served as well by a focus that looks solely to individual rights claimants.³⁷ This is so for several reasons. Institutions can provide focal points for organized action by knowledge producers or disseminators.³⁸ Ongoing institutions can, moreover, also enhance and reinforce disciplinary cultures of independence and knowledge-seeking. The existence of institutions may offer legal protection for their members when their professional knowledge products lead to liability claims. Such institutions serve as much-needed intermediaries, helping to sort out genuine knowledge from the gushers of information that are now available to so many through social media. And knowledge institutions perform their truth-seeking/dissemination roles non-coercively, unlike regulatory arms of government that may seek to prohibit and punish speech. Although institutions may come under conflicting pressures, it is important that their role as knowledge producers and disseminators, and their independence in that role, be reinforced. An elaboration of these points follows.

14.2.3.1 On Focal Points for Collective Action

Adam Chilton and Mila Versteeg’s research discloses an interesting relationship between the presence of written constitutional rights and actual levels of being able to exercise those rights. A positive relationship did not hold for all of the rights they investigated; the presence of rights to be free from torture, or to free speech, typically asserted by individuals, had no association with actual levels of respect for those rights. But for those rights held or exercised by collective entities – religious groups, trade unions or political parties – written protections were associated with greater levels of respect for those rights. Chilton and Versteeg suggest an explanation for the difference might be that the collective entities in which certain rights are exercised provide focal points for coordinated, collective action (such as organized protests) that may result in the protection of the rights, even without intervention of courts. That is, ongoing entities can facilitate coordination and collective action to protect those rights whose exercise is necessary to the core functions of the entity.³⁹ Particular universities and press institutions may provide a powerful focal point for the protection of academic and journalistic speech, research and investigation. Similarly, some government offices may provide powerful focal points for the preservation of the integrity of their own work, including knowledge production. Consider, for example, the collective efforts of Department of Justice officials to prevent the Attorney General from being persuaded by White House pressures to an erroneous legal interpretation as the basis for unlawful action,⁴⁰ or the concerted efforts by former members of the Department of Justice Office of Legal Counsel (OLC) to uphold or re-envision the legal integrity and knowledge practices of that office in the face of apparent egregious departures.⁴¹

14.2.3.2 On Disciplinary Cultures

Institutions have institutional cultures, which include habits and norms about valid methods of producing and testing knowledge. Institutions help sustain and pass on these cultures, shared assumptions and codes of behaviors.⁴² Institutions sustain their cultures in a variety of ways, including unconscious imitation, reward structures,⁴³ mission statements and codes of ethics.⁴⁴ Many opportunities exist to promote the truth-seeking mission of universities and colleges and their faculties, including in hiring, promotion and tenure review; mission statements of universities, public and private, emphasize their role in knowledge production, preservation and transmission.⁴⁵ At a high level of generality, many in the sciences would agree with the National Academies of Science, Engineering and Medicine in the USA that ‘the values of objectivity, honesty, openness, accountability, [and] fairness’ are essential.⁴⁶ A more general statement, cognizant of the variation in some standards among disciplines, is found in Cambridge University’s statement of good research practices, that ‘the highest standards of integrity, honesty and professionalism in respect of their own actions in research and in their responses to the actions of others’ is necessary, as is ‘openness’ about research and its availability.⁴⁷ Tenure standards of particular schools and departments cast further light on how particular schools talk about research quality.⁴⁸ Academic cultures are passed on in various ways – including, inter alia, through policy statements, tenure requirements, formal reviews, informal reviews, academic mentoring and professional associations in the various academic disciplines. So institutions matter because, in part by bringing together people with similar professional commitments over time, they can reinforce disciplinary cultures for the production of different kinds of knowledge.⁴⁹

14.2.3.3 Material Resources for Discipline-Conforming Knowledge Work

As discussed elsewhere, institutions matter because they are likely to have material capacities and incentives to protect the rights of their members, at least where their members are seeking to produce or identify knowledge in accordance with the relevant disciplinary norms.⁵⁰ Constitutional rights, of course, also provide protection, but that protection can be supported – or supplemented – by aspects of the institutional presence. This protection may take different forms. Institutions will, typically, have more money and access to legal expertise than any individual member. If a New York Times journalist or a Harvard scholar is sued or subject to investigation for their journalistic or academic work, their employers may be able to assist in their defense;⁵¹ government employees are often able to have government support for their defense unless the employee’s conduct ‘does not reasonably appear to have been performed within the scope of his employment with the federal government … [or] is otherwise determined … not [to be] in the interest of the United States to provide’.⁵² Of course, the interests of institutions and their employees may diverge,⁵³ but the presence of an institution whose goals generally overlap with those of its employees may provide added support against attacks on those employees for doing their jobs. If institutions fail to support employees in their knowledge production or disseminating capacities, the consequences for an epistemically sound system may be quite adverse.

14.2.3.4 Intermediaries and Massive Misinformation Flows

Another reason to give special attention to knowledge institutions as such arises from the profusion of communications sources that now exist in the world. This profusion of communications sources, including through social media, facilitate very quick and widespread diffusion of claims that may have little foundation or be completely untrue.⁵⁴ Major sources of information flow on social media such as Facebook, YouTube or Twitter do not generally purport to screen what they disseminate for truthfulness;⁵⁵ their principal purposes do not include the creation or dissemination of knowledge, but rather the flow of communications. University communities and those of other intermediary institutions can often sort out true from false knowledge claims in a more authoritative way than any isolated individual acting on their own.

Knowledge institutions serve this function generally by applying appropriate disciplinary standards to determine what counts as ‘knowledge’, including the credentialing of experts and the identification of areas of epistemic uncertainty.⁵⁶ Moreover, a number of knowledge institutions (some independent non-governmental organizations, some universities) have in recent years supported scholarly work and established knowledge-disseminating projects specifically designed to understand, and to help check, the flow of misinformation online.⁵⁷ These projects directly seek to play an intermediary and knowledge-preserving role.

14.2.3.5 Knowledge Institutions as Less Coercive than Government Regulation

Knowledge institutions rely on less coercive measures in promoting knowledge than government regulation. Allowing the coercive powers of government to be used intrusively to regulate knowledge production, testing and dissemination poses acute risks to constitutional democracy. As current events have shown, some governments have invoked the COVID pandemic as a pretext to suppress and punish criticism of the incumbents by asserting coercive control over purportedly ‘fake news’.⁵⁸ Although knowledge institutions may refuse to reward work that is deemed below par, or may impose employment-related sanctions, they do not have the coercive powers of government to prohibit speech or jail dissidents. Such milder forms of influence exercised by knowledge institutions offer a less threatening alternative to government efforts directly to sanction or suppress speech and the dissemination of knowledge.⁵⁹

14.2.4 Why Focus on Democracies?⁶⁰

All governments need knowledge in order to be able effectively to govern; even the most authoritarian of governments will need knowledge to maintain their own power.⁶¹ But democracies are particularly dependent on knowledge institutions for their own legitimacy and effectiveness. Democratic constitutionalism requires at least to some degree the active involvement of knowledgeable citizens, even if only to participate in elections where public approval or displeasure with the performance of office holders can be expressed.⁶² On more demanding understandings of democracy, elected representatives must deliberate seriously over issues of policy or, on some accounts, citizens must participate actively in influencing government bodies’ agendas and policy outcomes.⁶³ Elections legitimize government insofar as they reflect the views of the voters who have access to information (about choices of candidates and policies) and access to voting without obstruction or coercion.⁶⁴ Thus legitimate elections depend on ample sources of information,⁶⁵ as well as unobstructed access to voting. On any version of a real democracy, knowledge relevant to evaluating issues and representatives must be available to voters.⁶⁶

Second, constitutional democracies require knowledge institutions to sustain their constitutionalist character. A core idea of constitutionalism is that the rule of law applies to the government itself so as to constrain the government from arbitrary action.⁶⁷ Central elements of the rule of law require that the laws, and what they prohibit or authorize, be knowable, and that the enforcement of the law be characterized by some degree of consistency and reliability.⁶⁸ Thus, in order to secure the ‘constitutionalist’ aspect of constitutional democracy, knowledge of the law, about what it is, how it is being applied and how it can be improved, is necessary.

Third, knowledge is essential to the effective policy development and implementation that is necessary for government to respond to the needs and preferences of the public. Democratic constitutions must enable elected governments to work effectively in meeting the material needs of their societies, while at the same time protecting the individual rights that are central to human liberty and equality.⁶⁹ Constitutions not only impose constraints on governments but also empower governments to act for the benefit of their people.⁷⁰ The democratic and constitutionalist pillars of constitutional democracy must be accompanied by a pillar of effective government.⁷¹ Effective government requires competency in decision-making.⁷²

Democratic elections mean less if elected officials are incompetent or lack access to knowledge that forms the basis for competent decisions. Incompetent government cannot effectively respond to and provide for the material needs of the people; constitutional democracies cannot long survive if their governments are not seen as effective in advancing the welfare of the people. Even the protection of individual rights rests on the ability of government to have an effective system that works to promote the protection of rights, including well-trained police, prosecutors, lawyers, judges and courts. Competency, in turn, rests on decision-makers having reliable knowledge of the world.

Constitutional democracies, then, rest on multiple pillars – of democracy and public consent, of respect for rule-of-law protections from arbitrary government conduct, of protection of individual rights and of competent, ‘workable’ governance.⁷³ To secure ‘democratic’, ‘constitutionalist’ and ‘competency’ forms of legitimation, constitutional democracies require what Ginsburg and Huq call a ‘shared epistemic’ foundation.⁷⁴ A shared epistemic foundation is one that is rooted in verifiable knowledge about the world and a reasoned and open process for interpreting what that knowledge means for policymaking. To this end, democratic constitutionalism requires vibrant ‘knowledge institutions’, both within and outside of government, to help secure this shared epistemic foundation.

For the reasons discussed above, institutions devoted to knowledge production or dissemination deserve special attention in the field of constitutional studies; their role is a distinctive one in securing the freedoms and epistemological grounding necessary in constitutional democracies. Yet the role of knowledge institutions in constitutional democracy has gone underappreciated, both in US constitutional discourse and in comparative constitutional studies. Shoring up appreciation of and protections for knowledge institutions is thus urgently important.

14.3 Brief Examples: Of Public Universities and Government Offices

Both government offices and universities, public and private, can be ‘knowledge institutions’. Some government offices exist for the principal purpose of compiling and creating knowledge – about different sectors of the economy, about the population as a whole, about natural phenomena.⁷⁵ Many government offices also have other purposes to be pursued through the exercise of professionally informed knowledge, as in criminal prosecutors’ offices, or in offices of health and safety regulation. In carrying out their knowledge-related functions, ongoing organizations in government, like academic departments, require commitments to the pursuit of truth or knowledge; the application of appropriate disciplinary standards designed to identify reliable knowledge claims; and the ability independently to apply those disciplinary criteria. In the sections that follow, I discuss case law that threatens that independence, in both government offices and public universities.

14.3.1 Garcetti and Government Employees

In Garcetti v. Ceballos,⁷⁶ the Court held that criminal prosecutors, and government employees generally, are not protected by the First Amendment from adverse employment action for statements made pursuant to the government employees’ official duties – apparently even if the statements address matters of public concern, or of professional ethics and constitutional responsibility.⁷⁷ It explained that: ‘Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.’⁷⁸ The implications for faculty at public universities aroused considerable concern,⁷⁹ although the Court reserved that question.⁸⁰

Government offices no doubt have ‘managerial’ needs that warrant control over employee speech that would be unconstitutional if extended by the government as regulator to the citizenry as a whole.⁸¹ But Garcetti’s prioritization of bureaucratic control over other public values of truth and legality remains a significant deterrent to expressions of professional disagreement within government offices, including those that are knowledge institutions, even when expressing those disagreements may be in the public interest. Government employees may develop specialized expert knowledge, making their observations and concerns of high value to the public as well as the government.⁸² And government officials, like other employers, have incentives to avoid acknowledging or redressing their own mistakes,⁸³ a tendency that could be mitigated, or deterred, by recognizing that government employees doing ‘knowledge’ work for the government require, by virtue of the function of their office, greater protection for their speech in the course of official duties. In denying that a government employee has any First Amendment interest in speech made as part of their official duties as a government employee, Garcetti also undervalues the role of such speech in serving knowledge-related interests vital in a democracy, including checking or disclosing misinformation and breaches of constitutional requirements.

Although categorical rules have important advantages of clarity, and error avoidance,⁸⁴ when deployed to strip all constitutional protections from government employee speech in their official duties, that approach goes too far in cutting off potentially valuable information. At the same time, governments as employers have undoubted interests in being able to manage their workforce, including the ability to discipline employees for errors, incompetence or disruptive behavior at work.⁸⁵ And the constitutional system as a whole, and all of its members, have an interest in effective government that requires acknowledging the hierarchical authority in heads of offices to manage their staff.⁸⁶

Those legitimate interests can be accommodated through doctrine that does less harm to the interests of the First Amendment and the public in the kind of information government employees can and should be able to provide,⁸⁷ while at the same time recognizing the knowledge-producing roles of government offices. Fred Schauer, among others, has criticized the Court for too rigid an application of legal categories that are insufficiently attentive to contextual differences between institutional settings.⁸⁸ As such work suggests, ‘government speech’ should not be deployed as a category to preclude careful attention to the competing values at stake in conflicts between managerial authority for work-related errors, on the one hand, and the professional judgment of professional employees exercised on behalf of public values, on the other.⁸⁹

These arguments warrant significant modification of Garcetti, notwithstanding its concern for managerial prerogatives.⁹⁰ The US approach severs too completely the public employees’ constitutional accountability to the public from its bureaucratically focused conception of the hierarchical responsibility of a public servant.⁹¹ The question of government employee speech highlights one of the benefits of seeing knowledge institutions as a category in constitutionalism, because the benefits to be achieved by protecting the professionally informed, expert speech of some government workers overlap with the benefits to be derived from protecting academic and press freedoms, in ways that separate treatment may obscure.

14.3.2 Universities as a Special Case?

As noted, Garcetti did not rule on whether its holding – that government employees had no First Amendment protection for speech that was part of their official duties – would apply to professors at public universities. This unanswered question of Garcetti has assumed increasing importance, as attacks on basic elements of American academic freedom traditions mount while the Court has seemingly retreated from its prior support for the constitutional status of academic freedom in the context of student admissions. As Paul Horwitz argues, the law of free speech protection ‘should be responsive to context, specifically including institutional context’, and ‘should be built from the perspective of important speech institutions, not imposed upon them’.⁹² Academic freedom is central to sustaining constitutional democracy.⁹³ The central functions of universities as institutions – whether public or private – are to advance knowledge through research and teaching. Similar protections of academic freedoms should be accorded to those operating as public as well as those operating as private universities.

14.3.2.1 Student Admissions

In Sweezy v. New Hampshire,⁹⁴ Chief Justice Earl Warren’s plurality opinion noted the ‘essentiality of freedom in the community of American universities’ as a ‘self-evident’ feature of the First Amendment, and cautioned against ‘imposing any strait jacket upon the intellectual leaders in our colleges and universities’. In a concurrence, Justice Felix Frankfurter famously described the constitutional scope of academic freedom in explaining what freedoms of universities were necessary to maintaining a ‘free society’.⁹⁵ Drawing from a statement by South African academics, his opinion stated that

[i]t is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.⁹⁶

Widely cited,⁹⁷ this statement of a US idea of academic freedom proved central to supporting decisions in subsequent cases upholding the use of race in university admissions to promote the diversity of the student body: Justice Lewis Powell’s opinion in Regents of University of California v. Bakke quoted and relied on Justice Frankfurter’s Sweezy discussion of academic freedom,⁹⁸ and this rationale was relied on as well in Grutter v. Bollinger.⁹⁹

However, in Students for Fair Admissions v. Harvard College,¹⁰⁰ the Supreme Court in effect disavowed the reasoning in Bakke and Grutter, holding that consideration of race as such in university admissions violates the Equal Protection Clause; the Court invalidated the Harvard College plan (whose predecessor had been specifically approved by Justice Powell in Bakke). Contrary to the reasoning in prior cases, the Court treated the university’s aims – including ‘better educating its students through diversity’ and ‘producing new knowledge stemming from diverse outlooks’ – as ‘commendable goals, [but] not sufficiently coherent for purposes of strict scrutiny’, ‘worthy’, but not enough to justify the use of race¹⁰¹ – notwithstanding their acceptance in prior cases. The lack of respect for universities’ academic decisions is manifest in the evident hostility with which strict scrutiny is applied (for example, the Court’s claim that the educational benefits of student body diversity are not ‘sufficiently coherent’).

Students for Fair Admissions was a major case, with long majority, concurring and dissenting opinions. Of further concern, then, is that in this major case, in which universities defended an admissions program on academic freedom grounds,¹⁰² not one opinion cites Sweezy. Why not? Should the majority in Students for Fair Admissions be understood as rejecting Frankfurter’s formulation of academic freedom, at least as it applies to the admission of students? How concerned should one be about universities’ capacities to remain independent ‘knowledge institutions’ if their academic freedom does not extend, generally, to selection of students? Even more concerning is the possibility that the Court’s silence in Students for Fair Admissions implies skepticism that ‘academic freedom’ has any constitutional foundation whatsoever, for in that case, university faculty would be in the same position as government employees under Garcetti. Garcetti’s unanswered question about its application to public colleges and universities thus looms even larger in light of Students for Fair Admissions.

How central to universities is the ability to develop and apply selection criteria for choosing their students? One could perhaps argue – not very. One could argue that the core, or most central, reason to protect universities as knowledge institutions is for the production of knowledge that comes from faculty who are relatively untrammeled by the limits of conventional wisdom, and for teaching students both current knowledge and to open their minds to further learning as they go on in life. These core functions, it could further be argued, are not much influenced by the admission of those students – at least at the undergraduate level – who are primarily there to learn from their professors, rather than to assist professors in their research. Or one could argue that the reasons for active selection in the past, rather than, say, accepting as many students as the university had room for, had more to do with maintaining elite status or membership in a particular religion, considerations that are no longer persuasive in a more egalitarian society.

But is this really persuasive? In the context of modern colleges and universities – especially contemporary research universities – does the quality and diversity of one’s students not affect the quality of faculty research? Do admissions decisions not reflect profoundly academic judgments about how to achieve a quality education? Such claims seem wholly implausible as applied to graduate students, who are often employed as teaching or research assistants to faculty members. But even undergraduate students may help faculty with their research. And classroom interactions with adult students of all ages, whose diverse experiences lead them to ask different kinds of questions that in turn lead faculty to see materials in new lights, have the potential to sharpen faculty minds and expand their horizons.¹⁰³ Thus, the autonomy of faculties over whom to admit seems closely related to core reasons for recognizing academic freedoms in universities and their faculties. Moreover, the qualities of mind and range of experiences that their classmate students have will affect the quality of student learning experience.¹⁰⁴ If research, teaching and learning are the core elements of universities as knowledge institutions, these favor considerable autonomy for universities in selecting their students. And if universities that have adopted affirmative action programs have made deliberate academic judgments about their educational mission (perhaps relying on academic studies to support their educational conclusions),¹⁰⁵ values of academic freedom are, at least arguably, seriously at risk when a court declares their program is invalid.

In this light, the absence of discussion of universities’ academic freedoms in Students for Fair Admissions is troubling. True, the issue of racial justice/injustice under the equal protection clause dominated, under the standards of strict scrutiny established in Grutter and Bakke, and is of surpassing importance; constitutional interests in equality clearly support general rules prohibiting invidious discrimination against students based on race, sex or religion.¹⁰⁶ Moreover, it is not uncommon for public universities to experience external pressures or constraints to admit, for example, students from their own state,¹⁰⁷ and/or for financial reasons to admit other categories of students (including out-of-state) who can pay higher or full tuition fees.¹⁰⁸ But it was significant that these affirmative action programs reflected exercises of academic judgment, and the Court’s decision interfered with those judgments and resulting programs. There are sound reasons to include the right to decide on selection criteria for students as part of a university’s academic freedom. Had the protection of academic freedom been seen as of higher constitutional value, then a different balance might well have been struck between presumptive rules against considering race and the universities considered, non-invidious reasons for doing so as a method for building a more inclusive, more diverse student body.

14.3.2.2 Curriculum

The questions of what and how to teach are often said to be at the core, along with freedom of research, of the academic freedom of universities.¹⁰⁹ True, there is often some degree of shared control: it is not uncommon for governments to decide to support particular fields of study – such as medicine, veterinary medicine, mechanical arts or agriculture¹¹⁰ – and to provide funds to be used towards that purpose,¹¹¹ and curriculum decisions are often made for universities based on a consensus among faculty and academic staff.¹¹² But as a matter of academic freedom, it must be up to academic faculty to determine the content of a course and how it should be taught.¹¹³ In this way, the academic expertise of faculty is deployed to advance the field of knowledge that has attracted the government’s interest; faculty are not required to speak or teach or write in ways that misrepresent their academically informed views. For governments to offer funds for the study of particular areas is not necessarily incompatible with leading understandings of academic freedom; for governments to require universities to offer specific courses of study may raise questions of academic freedom, perhaps depending on the degree of faculty involvement in defining the curriculum;¹¹⁴ but for governments to prohibit the study or teaching of particular topics or content plainly is wholly incompatible with the spirit of free inquiry in prevailing conceptions of academic freedom. Recent events in the USA and in other countries, including Poland and Hungary, challenge this basic aspect of academic freedom and of universities as knowledge institutions.

As noted earlier, the State of Iowa’s House Bill 802 applies to public institutions of higher learning. Benignly, it states clearly that it does not prohibit teaching about the ‘topics of sexism, slavery, racial oppression, racial segregation, or racial discrimination including topics related to the enactment and enforcement of laws resulting in sexism, racial oppression, segregation and discrimination’.¹¹⁵ Yet it provides that any ‘mandatory staff or student training’ must not ‘teach, advocate, act upon or promote specific defined concepts’. ‘Specific defined concepts’ include ‘that the United States or State of Iowa are fundamentally or systematically racist or sexist’. The law also says that public employees are not ‘prohibited from discussing such specific defined topics as part of a larger course of academic instruction’. So it would appear that faculty can discuss whether the USA or Iowa are fundamentally racist, but cannot argue – even if based on their academic expertise – that they are, at least if they are teaching something that could be regarded as ‘mandatory student training’ (whose application to, for example, a required history class is on its face unclear).¹¹⁶

The law is a clear violation of basic principles of academic freedom.¹¹⁷ And if it were applied to private colleges and universities, it is reasonably clear that the law would be found to violate the First Amendment: it is a content- and viewpoint-based distinction, and it is difficult to imagine any argument that such a restriction would pass muster under the decided cases.¹¹⁸ But the Iowa law applies only to public employees. As such, it raises the question reserved in Garcetti – whether the holding applies to faculty at public universities – which is now of critical importance.¹¹⁹ Will Students for Fair Admissions’ failure to endorse the constitutional concept of academic freedoms affect resolution of this question?

Allowing government to dictate what positions faculty can take in teaching university students, as the Iowa law appears to do, is incompatible with the independence necessary for a knowledge institution to function. It is a form of censorship with all of censorship’s well-known potentials for harm; it prevents the free deployment of academic expertise for the benefit of student learners; and it can function as a form of government propaganda, anathema to a free society.¹²⁰ Seeing universities (whether public or private) as knowledge institutions should make this clear.

As noted, careful attention must be given to the competing values at stake when the managerial authority of government as employer is countered by a claim that the professional judgment of professional employees be exercised on behalf of public values. In the academic setting, the balance tilts decisively in favor of providing autonomy for the professional judgments of academics, taken in academic contexts; it is the very function of faculty in these institutions to question, dissent and take sides – supported by evidence – on all kinds of subjects, notably including difficult issues. If Garcetti’s categorical exclusion of government employees from First Amendment protection when they are speaking within their official capacity survives (it should not), a categorical exception should be applied for academic staff in institutions of higher education. As the Court said in Keyishian v. Board of Regents of the University of State of New York, ‘academic freedom … is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom’.¹²¹ A ‘pall of orthodoxy’ is precisely what the Iowa law purports to prescribe – and the fact that it was proposed and enacted into law should raise deep concerns.

Freedom of research and freedom of teaching within areas of expertise, according to disciplinary standards of the field, is at the core of academic freedoms. As many scholars note, academic freedom is quite distinct from freedom of speech entitled to constitutional protection; academic freedoms require content-based distinctions to be drawn, and require viewpoints expressed in the classroom and in writing to be adequately supported in an academic way. As Adrienne Stone and Carolyn Evans put it: ‘Freedom of speech is a political freedom that should be enjoyed by all people in democratic nations. Academic freedom has a more specific purpose. It protects the pursuit and dissemination of knowledge through free inquiry and ensures that university research and teaching is authoritative and unbiased.’¹²² Academic freedoms are necessary in a constitutional democracy because without those freedoms, we stand on less certain ground about what is true knowledge; genuine inquiry requires space to test, explore and try out arguments for what may not yet be known to be true (and for what on further inquiry may not survive the disciplinary processes of justification and critique). The pursuit of knowledge is a good in itself and is also a good for society and for democracy, because of the valuable function the institution serves in developing and applying standards for the pursuit and verification of truth. Without independent knowledge institutions as important parts of our constitutional infrastructure, finally, the intermediary role in helping to sort out and check misinformation will go unfulfilled.¹²³

15 Freeing Speech at Work Journalists’ Unions, Workplace Democracy and Political Democracy

Charlotte Garden

15.1 Introduction

The ‘marketplace of ideas’ metaphor tends to dominate US discourse about the First Amendment and free speech more generally. The metaphor is often deployed to argue that the remedy for harmful speech ought to be counterspeech, not censorship; listeners are to be trusted to sort the wheat from the chaff. This deep skepticism about the regulation of even harmful speech in the USA raises several follow-on questions, including: How will trustworthy sources of information fare in the marketplace of ideas? And how will participants know whom to trust? Both questions implicate non-regulatory, civil-society responses to mis- and disinformation.¹ This chapter takes on these questions, considering groups and institutions that deal with information and misinformation. Civil society groups cannot stop the creation of misinformation – but they can decrease its potential to proliferate and to do harm. For example, advocacy groups might be directly involved with fact-checking and debunking misinformation, or with advancing truthful or properly contextualized counter-narratives. And civil society groups can also help strengthen social solidarity and reduce the social divisions that often serve as fodder for and drivers of misinformation.

In this chapter, I focus specifically on the role of labor unions in countering misinformation in the US context. US labor unions negotiate on behalf of groups of workers, and also advance workers’ interests writ large in political contexts. Both roles can involve countering mis- or disinformation in various forms. First, misinformation is a common weapon in employers’ arsenals during union-organizing drives. Among other misleading messages, employers often try to paint union organizers as outside agitators, isolated malcontents, or incompetents looking for protection from rightful accountability. This sort of messaging is so routine as to have become unremarkable – though it can also be difficult to counter effectively, given that employers have vastly more access to employees than do union organizers.² Second, employers can be a source of misleading political claims. As political scientists have documented, it is relatively common for US employers to urge employees to adopt the employer’s preferred political views, sometimes by creating the impression that the future of the company (and the employees’ jobs) is on the line.³ But would workers be likely to know if their employer lied (or stretched the truth) in making political pitches? The answer is more likely to be ‘yes’ if the workers are unionized.⁴

The foregoing is true for US workers in general – but some workers, such as journalists, teachers and librarians, have jobs that inherently involve countering (or spreading) misinformation. Here, labor unions can play more specific roles in strengthening the organizations for which their members work. As an illustration, this chapter considers journalists’ unions. At one level, these unions fight for the same working conditions as any other union, such as better pay and benefits, stronger worker autonomy and freedom from arbitrary discipline, and the preservation of bargaining-unit work.⁵ But in the context of news organizations, these terms can take on special significance. For example, a more diverse set of people will pursue careers in journalism if they can earn a decent living while doing so, which is important because varied perspectives and knowledge within a newsroom can lead to better and more thorough reporting. And protections against arbitrary or inconsistent discipline are important to workers whose jobs involve ‘speaking truth to power’ – ultimately benefiting both covered workers and the integrity of organizations themselves against individual failings of managers or owners.

In addition, journalists’ unions are often able to negotiate contract protections that specifically relate to journalists’ integrity.⁶ For example, some collective bargaining agreements provide for a degree of independence in the editing process, such as by allowing reporters to withhold their bylines from stories that they believe have been edited in an inaccurate or misleading fashion. Others guarantee that reporters will have input and an opportunity to respond if the accuracy of their reporting is challenged by the subject of that reporting and promise that the news organization will pay for legal representation if a journalist is sued. And still others implement general codes of ethical conduct as part of the collective bargaining agreement (CBA) itself, creating protections for journalists who insubordinately refuse to engage in unethical conduct.

My argument is that journalists’ unions (and, similarly, unions of other groups of information workers) can protect free speech values – and the most specific way they do this is by giving workers leverage to demand that their employers live up to their institutional values. Ironically, though, the First Amendment weakens unions’ abilities to do this. Although the Supreme Court has held since 1937 that the National Labor Relations Act of 1935 (NLRA) applies to employers that are in the speech business, news organizations have successfully argued to US Courts of Appeals that they cannot be compelled to bargain over editorial policies.⁷ This is so even though unions themselves are not state entities, and even though US labor law includes no mechanism to compel a private-sector employer to reach an agreement.⁸ In other words, although the First Amendment is crucial to journalists’ abilities to do their jobs, it can also benefit employers when journalists exercise collective power to protect the integrity of their work.

The chapter begins with a brief discussion of social scientists’ findings on the kinds of traits that make individuals and societies vulnerable to mis- and disinformation. These findings background the chapter’s discussion of why strong unions can harden American society against misinformation, including by decreasing social cleavages, increasing government’s responsiveness to poor and working class citizens’ concerns, and connecting unionized workers to the political process. Then, the chapter turns to unions of information workers, particularly teachers and journalists, and argues that unionization allows these workers to pressure their employers to stay true to their institutional missions. Finally, it shows that already weak labor law is further weakened by courts’ understanding of how the First Amendment interacts with labor law in this context.

15.2 Civil Society and Misinformation

Misinformation researchers have focused primarily on questions such as how to identify and map misinformation, and whether or how to regulate the spread of misinformation by government officials or on social media platforms. But there is less research focused on civil society’s role in fighting misinformation. Still, these groups have a role to play. First, civil society groups will often be trusted by their own members as sources of accurate information.⁹ Further, they can bring people together, engaging them on social and political issues and building social connections; this function is important because engaged and connected communities are better able to resist misinformation than more atomized communities.¹⁰ Second, civil society groups can pressure social media platforms or news outlets to take down misinformation without triggering government censorship concerns. Third, they can advance accurate narratives in the press. For example, a news outlet might seek comment from a local civil rights group before publishing a story on a school board candidate’s untrue claim that critical race theory is taught in elementary schools.¹¹

Civil society groups have a range of purposes and goals, and of course they are also differently situated with respect to political disinformation. Some groups view fighting disinformation – either in general or on a specific topic or platform – as a central purpose; on the other end of the spectrum, others avoid all discussion of political or divisive topics. But many groups fall in between, including labor unions – this chapter’s focus. Unions generally have explicit political priorities, but they do not exist only to participate in electoral politics, or specifically to fight misinformation. And while they sometimes address misinformation head-on, they likely also have more indirect effects. Accordingly, this chapter begins with a generalized discussion of how labor unions can strengthen democracy and make US society more resistant to disinformation, before turning to an important subset of unions: those that are comprised of information workers, particularly journalists.

Why focus on labor unions rather than media literacy organizations, civil rights organizations, political parties or advocacy groups? To be clear, my answer is not that unions are more important than these other groups. Instead, it is that unions are also important, but frequently overlooked. Most of the remainder of this chapter explains why that is, beginning with unions in general, and then turning to unions of information workers.

15.3 Unions and Misinformation

One reason unions are an important part of this story is that – perhaps counterintuitively – workplaces can offer opportunities for sustained cooperation and the development of social ties between people of different backgrounds, which can have positive spillover effects for democratic life.¹² Moreover, because three-quarters of US adults aged 25–54 work,¹³ and workplaces tend to be more diverse than other American institutions, these opportunities may be more likely to arise at work than in other (relatively segregated) spaces in which people regularly spend time.¹⁴ For that reason, Cynthia Estlund argued more than twenty years ago that the workplace is ‘a uniquely important site within a diverse democratic society that aspires to achieve integration and equality among the citizens but that recognizes limitations on the proper scope of regulation’.¹⁵

But, as Estlund also observed, the story is not entirely rosy, and workplaces’ potential to give rise to social bonds that help protect communities from misinformation can easily go unfulfilled. First, as in many other US contexts, racial diversity has been declining in US workplaces over recent decades,¹⁶ and the US Supreme Court’s growing hostility towards remedial affirmative action increases the likelihood that this trend will continue.¹⁷ Moreover, most workplaces are autocratic; the philosopher Elizabeth Anderson rightly calls most workplaces ‘dictatorships … in which bosses govern in ways that are largely unaccountable to those who are governed’.¹⁸ This means that even though workplaces can facilitate or require respectful interactions among employees, US employers are also generally free to insist on a pace of work that precludes community-building interactions among workers.¹⁹ Employers may also rely on pools of high-turnover-contingent workers.²⁰ And whereas yesterday’s employers may have been unable to monitor their workforces closely enough to notice short breaks or side conversations, today’s employers have increasingly sophisticated workplace surveillance technology that monitors workers’ precise activities, including whether they are ‘on task’ at any given moment.²¹ In addition, many low-wage workers need multiple jobs to make ends meet – leaving little or no time for civil or political engagement outside of work.²²

Rather than giving up on workplaces’ potential to strengthen our social ties, it is worth considering whether there are institutions or practices that can make work more democratic. One obvious candidate: labor unions, which may bargain on behalf of a group of workers only if democratically elected.²³ In turn, a successful union election compels employers to come to the table to attempt to hash out an agreement on wages and working conditions, rather than setting working conditions autocratically.²⁴

Collective bargaining (and workplace collective action more generally) allows workers to push back against some of the workplace trends discussed above. For example, pay, scheduling, the pace of work and workplace discipline are the bread-and-butter of collective bargaining agreements.²⁵ (This is also one reason that unionized workers vote and otherwise participate in politics at greater rates than their non-union counterparts.)²⁶ Beyond that, unions are also active in politics in ways that range from member-to-member conversations, to programs that help union members run for office, to candidate endorsements and related spending. Much of this advocacy involves union leaders or members conveying their own affirmative messages about which party or candidate will be better for workers – but, of relevance to this chapter, it can also involve rebutting misinformation from other sources, including workers’ own employers.

Private-sector employers in the USA are mostly free to ‘talk politics’ to their employees, and a large number of them take advantage of their captive audiences.²⁷ Some stick to non-partisan messages, such as reminders about when Election Day is or how to register to vote – but others actively advocate for candidates or political parties in ways that can pressure workers, and that can involve misinformation.²⁸ For example, an employer may ‘nudge … people away from thinking about issues in particular ways’,²⁹ or falsely or misleadingly blame government policies as the cause of its own unpopular decisions. More alarmingly, some employers have said or implied if the employer’s disfavored candidate wins, it could be forced to cut jobs.³⁰ When this happens – or even when misinformation circulates in a workplace on a more ad hoc basis – unions may be a trusted source for both facts and alternative policy viewpoints. Thus, researchers have found that unionized workers are relatively well-informed about politics,³¹ and that this is especially true for workers with the least formal education.³²

In addition, social inequality seems to play a role in making societies susceptible to misinformation, and unions reduce various forms of inequality. To be clear, the premise – that more unequal societies are more vulnerable to misinformation – seems intuitive, but the supporting research is sparse, especially compared to research on characteristics that make individuals vulnerable to misinformation.³³ Still, good reasons exist to believe high levels of social inequality are an important part of the puzzle. For example, one group of researchers has posited that it will be relatively easy to manipulate members of socially segregated societies in which an advantaged group hoards knowledge resources from a disadvantaged group, though the less advantaged group is especially likely to be harmed.³⁴ Other research specifically focused on public-health messaging in the USA has identified ‘inequality-driven mistrust’ as an important reason that members of historically and currently oppressed groups may be willing to accept misinformation.³⁵ Moreover, the content of concerted misinformation campaigns often exploits and attempts to heighten existing social divisions and prejudices, such as racism and/or sexism in the USA;³⁶ it stands to reason that this material would be less effective in more solidaristic societies.

If this is right, then more widespread unionization would help ‘harden’ a society against the effects of misinformation because unions both strengthen American democracy and, relatedly, decrease inequality. For example, because US unions are required to operate in a democratic fashion, they can be a kind of training ground (and source of material support) for their members’ greater participation in electoral politics. And, in addition to reducing economic inequality (including the racial wage gap),³⁷ there is also evidence that today’s unions reduce racial resentment among their white members – a finding that makes sense when one considers that, to be successful in racially diverse workforces, unions will often have to convince workers to unite to achieve shared goals.³⁸

This section has argued that unions in general have a salutary effect on members’ vulnerability to misinformation. The next section turns to a subset of unions: those comprised of workers whose jobs involve informing or educating the public.

15.3 Information Workplaces and Workers

Some workplaces have special relationships to information and misinformation.³⁹ Many news outlets, libraries and schools would reasonably characterize themselves as carrying out a public-facing mission – producing knowledge, educating and informing segments of the public, and inculcating skills to help protect their audiences against misinformation.⁴⁰ (Social media companies might also characterize themselves this way, but the major platforms have at best a complicated relationship to information and misinformation that is beyond the scope of this chapter.) But organizations that genuinely try to fulfill this mission-driven role can become targets for misinformation spreaders, meaning that both the organization as a whole and its various employees and managers may need to contend with mis- and disinformation. Specifically, they may need to resist targeted campaigns intended to manipulate or coerce them into spreading misinformation, while also retaining their credibility with the public.⁴¹

How well these institutions resist cooptation by spreaders of misinformation will depend on a range of factors. But I argue that one important factor is the extent to which their workforces are organized and empowered to defend themselves (and, by extension, the institution as a whole) against misinformation. The basic argument is intuitive: most people who become journalists or teachers or professors do so at least in part for mission-driven reasons,⁴² and they are singularly well-placed to know how well their employers are doing at carrying out their stated missions and stewarding their institutions.⁴³ This makes organized and empowered employees a potential first line of defense against organizational decisions or practices that open the door to misinformation, or that erode earned public trust.

The remainder of this section turns to one industry – journalism – as an illustration of the thesis. It begins by briefly describing some of the pressures bearing down on US media outlets, emphasizing that one possible response is for outlets to fall back on practices that tend to erode trust in media. Next, it describes how journalists have unionized and otherwise acted collectively in response, fighting with varying degrees of success to preserve institution-sustaining employment conditions and standards. To be clear, I am not arguing that unionization is ‘one weird trick’ that will solve the industry’s various problems – but unionizing allows journalists to push back with more force than they could muster individually.

15.3.1 The Changing Media Environment

As Shannon Poulson and Dannagal Young have described, ‘[t]he quality of journalism and the pursuit of truth depend largely on the commercial, social, and technological changes of the times’.⁴⁴ Financialization, the rise of ‘both-sides’ journalism following a prolonged campaign to label certain kinds of (accurate) reporting as having ‘liberal bias’, the increasing popularity of ‘fake news’ or ‘alternative facts’ rhetoric on the political right,⁴⁵ and the shift to online news consumption (especially on social media platforms) all pose significant threats to ‘mainstream’ journalism and journalists. This subsection briefly (and necessarily incompletely) surveys these trends.⁴⁶

Technological evolution has presented a series of challenges to traditional newsrooms.⁴⁷ Widespread adoption of the Internet left print newspapers scrambling to compete with online entertainment of all sorts, and to convince the public to pay for online news content. Then, the rise of platforms like Facebook again changed the way many individuals consumed news, diverting them from news organizations’ homepages and towards stories that appear individually in their content feeds. One large, international survey recently found that nearly 80 percent of respondents preferred to access news via a platform or other aggregator (and that Facebook is now being supplanted by other platforms) – but also that fewer people are consuming news at all.⁴⁸ This shift has created several misinformation-related problems. Some of these challenges are content-moderation problems, over which platforms have control. For example, legitimate news outlets can report on the existence of sham stories formatted by malevolent actors to closely resemble real news sites – but only platforms can take these posts down and ban their originators, or at least try to.

Similarly, news outlets have had to adapt to the role of algorithmic amplification in determining the reach of individual stories or an organization’s collective output. This would be challenging and at least potentially harmful even if the algorithms were unchanging and publicly well-understood, because algorithmic amplification often rewards ‘clickbait’⁴⁹ or ‘infotainment’.⁵⁰ But the reality is that platforms change their algorithms unpredictably and often without notice. Worse, platforms may provide incorrect information about their own algorithms. The leading example is Facebook’s significant overestimation of the amount of time individual users spent viewing video content, leading many news organizations to undertake a doomed ‘pivot to video’ – sometimes laying off print journalists in the process.⁵¹

These and other technological changes have led to plummeting advertising revenue, particularly for local newspapers.⁵² This has been catastrophic: ‘Since 2005, the [United States] has lost more than a fourth of its newspapers (2,500) and is on track to lose a third by 2025.’⁵³ The result is a growing number of ‘news deserts’ where no credible local newspaper exists.⁵⁴ And although people living in news deserts may be able to access some kinds of local information from other sources,⁵⁵ they lose the benefits of reporting by journalists with the skills and deep local expertise required to unearth information that has been deliberately concealed or that is simply difficult to access or understand.⁵⁶ Further, local news outlets enjoy considerably more public trust than do national news organizations, especially among Republicans and independents⁵⁷ – suggesting that news deserts may leave large numbers of disproportionately right-leaning Americans with few news sources that are credible and that they also trust.

Outlets that have managed to avoid closure still face budget pressures, which can lead to layoffs of journalists and editors, and create incentives for news organizations to underinvest both in time-consuming accountability or investigative journalism, and in critical behind-the-scenes functions like fact-checking and copy-editing. Outlets may substitute access journalism or stories that simply rehash prepackaged material; in the future, outlets may even turn to stories generated in whole or part by predictive-text applications.⁵⁸ Local control of newspapers has also become less common in recent years: as of 2021, ‘half of all daily newspapers in the U.S. [were] controlled by financial firms’⁵⁹ – often ‘vulture’ funds that, in the words of writer McKay Coppins, aim to ‘[g]ut the staff, sell the real estate, jack up subscription prices, and wring as much cash as possible out of the enterprise until eventually enough readers cancel their subscriptions that the paper folds, or is reduced to a desiccated husk of its former self’.⁶⁰

Finally, news organizations have to decide how to deal with misinformation. This might seem straightforward: every credible news outlet strives to uncover the truth, and publicly getting it wrong – especially on a high-profile story – is the stuff of nightmares. But the topic quickly becomes knotty, especially when misinformation and accusations of newsroom bias intersect. For example, consider a journalist who reports the overwhelming scientific consensus that climate change is occurring, that it is caused by human activity, and that it will lead to devastating consequences.⁶¹ In response, powerful industry groups and aligned politicians vociferously accuse the reporter and the outlet for which they work of bias. When this scenario replays itself enough times, the effect can be to pressure editors and reporters to adopt ‘both sides’ or ‘false balance’ reporting. In this example, that might look like producing stories that wrongly imply the existence of meaningful scientific doubt about climate change.⁶² In other words, news outlets legitimately strive for (some version of) neutrality, but also of its appearance – and so when it comes to hotly contested policy and political issues, they may decide to repeat misinformation in order to appear ‘fair’.⁶³

As the climate change example illustrates, this dynamic long predates Donald Trump, but Trump’s candidacy and presidency presented an especially acute challenge. Trump coupled a disregard for the truth with near-constant accusations of media bias (‘fake news’), and he frequently characterized the mainstream media as the ‘Enemy of the People’, sometimes even celebrating violence against reporters.⁶⁴ This left reporters and news outlets with a dilemma – how to handle statements that are false, but also newsworthy because of their source? Early in Trump’s presidency, outlets seemed to struggle with this question. For example, many outlets were at least initially reluctant to use the word ‘lie’ to describe Trump’s statements.⁶⁵ Similarly, journalists and academics alike grappled with how to report on the propagation of disinformation without inadvertently serving the purposes of its creators.⁶⁶

Whether or not news organizations succumb to the bad incentives created by the confluence of these pressures has consequences for the organizations’ public legitimacy. In turn, public trust in media plays a role in determining a society’s susceptibility to misinformation. Unsurprisingly, researchers studying the European context found that journalism scandals decrease trust in mainstream media, as does public perception that media is pervasively biased, clickbait-y or of poor quality.⁶⁷ And, one might add, if this perception is accurate, this loss of legitimacy is deserved – media that suffers from these flaws is failing to convey useful and accurate information to the public.

Misinformation may fill the void left by an absence of trusted news organizations, though the picture is complex: Carlos Rodríguez-Pérez and María Canel also found that countries characterized by lower public trust in media tended to have greater resilience to misinformation. But the finding that healthy skepticism is better than blind trust is not a vindication of poor-quality journalism. Instead, the researchers recommend a two-pronged approach in which government warns the public of the risk of misinformation and develops media literacy through education, while media outlets foster their own legitimacy through transparency, accuracy and fact-checking, and stepped-up ‘watchdog’ journalism⁶⁸ – precisely the functions that are most at risk in today’s media environment. The challenges confronting news outlets and journalists today are shaping the news and reporting available to the public, and journalists’ working conditions. The next subsection discusses how journalists’ unions can respond.

15.3.2 Journalism Unions and Misinformation

The dynamics discussed in the previous section have propelled a recent wave of successful union drives at US news organizations. Beginning with the unionization of Gawker Media in 2015, union drives quickly sprang up at other web outlets, legacy newspapers, magazines and public radio stations.⁶⁹ Steven Greenhouse, a highly regarded journalist who spent three decades at the New York Times, including twenty years covering labor,⁷⁰ explained that ‘[t]wo major forces have propelled the unionization wave: the industry’s financial crisis and the wave of acquisitions, wiping out thousands of jobs and clamping down on salaries’.⁷¹ In addition, Greenhouse saw the COVID-19 pandemic as a factor, both because increased remote work led to a desire to build community, and because the pandemic prompted new questions about working conditions, such as COVID-related workplace safety protocols and work-from-home policies.⁷²

As Greenhouse explained, union drives are often precipitated by planned acquisitions, as journalists see an acute need for negotiated contractual protections against downgrading of their working conditions. For example, Los Angeles Times journalists decided to unionize after the paper was purchased by a news conglomerate, which then unilaterally changed working conditions for the worse and fired newsroom leadership.⁷³ It turns out this was a smart move: the union successfully negotiated a three-year contract guaranteeing raises each year, as well as instituting protections against arbitrary terminations and measures to increase newsroom diversity.⁷⁴

Of course, unions do not always win improvements, and they cannot usually forestall closures of news outlets. The NLRA does not require employers to negotiate with unionized employees over decisions to shut down an entire enterprise – but it does require bargaining with unionized employees over the effects of decisions to shut down, including on topics such as severance payments and the timing of layoffs.⁷⁵ This means that even in a worst-case scenario, unionizing gives journalists a better shot at a good outcome, or at least at the best outcome available under the circumstances. For example, after writers working at The Appeal, a web-based outlet devoted to covering the criminal justice system, announced they were unionizing, the site’s owner announced a decision to shut the site down altogether.⁷⁶ But the union was first able to negotiate severance packages – and better yet, the unionized employees then announced their intention to relaunch The Appeal as a worker cooperative. Today, the outlet still exists as a ‘worker-led nonprofit newsroom’.⁷⁷

Unions such as the NewsGuild advocate against harmful acquisitions in other ways as well. For example, the NewsGuild launched a project called ‘SaveLocalNews’ as a hub for reporting on hedge fund acquisitions of newsrooms,⁷⁸ as well as a place to coordinate political, shareholder- and public-facing advocacy when a new acquisition is in the works.⁷⁹ Journalists’ unions also advocate for regulatory bodies to halt acquisitions of news outlets,⁸⁰ and for legislatures to pass laws aimed at preserving local news.⁸¹ One important function of this advocacy is to point out where the interests of news organizations’ owners diverge from those of journalists. For example, the NewsGuild has warned that iterations of the Journalism Competition and Preservation Act, a bill that would allow news companies to bargain collectively with platforms like Google and Facebook, will be counterproductive if it is not packaged with measures designed to channel increased revenues towards employing more journalists.⁸²

Other US newsrooms have unionized precisely because they see a negotiated CBA as a way to protect the integrity of their work. For example, when ProPublica journalists unionized in 2023, they signed a mission statement focused primarily on journalistic standards and workplace equity: ‘We want to maintain the organization’s focus on ambitious, impact-focused journalism. We want to strengthen existing internal efforts, like those of the diversity committee, that address inequities within our own staff and across our industry.’⁸³ (As of when this chapter went to print, ProPublica and its journalists had not yet negotiated a CBA, although ProPublica agreed to voluntarily recognize the union as the collective bargaining representative of its employees.⁸⁴)

Collective bargaining agreements covering journalists at other outlets reflect a range of terms that help protect journalists’ professional integrity. Some of these are terms that are common to collective bargaining agreements across industries. For example, CBAs that cover journalists usually contain protections against termination or other discipline without ‘just cause’⁸⁵ – an important backstop for journalists who, for example, report on or otherwise criticize their own employers, or who become targets of coordinated, bad-faith attacks.⁸⁶ Importantly, just-cause protections typically put the burden on the employer to prove it had a sufficient reason to impose discipline or termination; moreover, the union litigates the grievance on behalf of the employee, meaning that the employee need not pay a lawyer themselves. Thus, unionized journalists typically have workplace protections that are much closer to academic tenure than to the presumption of at-will employment that otherwise applies to most private sector workers in the USA.

Additionally, journalists’ unions often negotiate contract terms that are either aimed at increasing the diversity of their newsrooms, or that can have that effect; this can increase public trust in reporting by those outlets, especially among marginalized communities.⁸⁷ For example, some contracts require news outlets to interview at least one or two members of underrepresented groups for each open position.⁸⁸ And CBAs that reflect new pay floors, coupled with predictable raises for more senior journalists, can make careers in reporting more feasible for members of marginalized communities. Finally, journalists’ unions have pressured a list of high-profile outlets to respond to racial disparities in hiring, pay or performance evaluations by conducting and releasing surveys of newsroom staff.⁸⁹

Next, many news outlet CBAs contain provisions that are specifically aimed at protecting and operationalizing journalistic standards. For example, the contract that covers US journalists working at The Guardian provides for employee representation on ‘any editorial boards or internal news committee teams by a Guild-appointed employee’, and also states that employees cannot be required to undertake ‘any practice which in the employee’s judgment compromises the employee’s integrity’, including by writing in a way that distorts facts or creates wrong impressions⁹⁰ – a provision that a journalist could rely on if pressured to imply the existence of a scientific debate over a matter that was actually settled.⁹¹ This CBA also specifically protects covered employees against discipline based on ‘the communications of another person on social media’ – which means that journalists cannot be suspended or terminated simply because they become a target of online criticism.⁹² CBAs are not always this protective or detailed – but they often contain some degree of shared labor–management recognition of and protection for journalistic independence. Thus, some CBAs specify that journalists can withhold their bylines from stories to which they have editorial objections, and some create joint labor–management committees to deal with conflicts of interest of breaches of ethical standards.⁹³

In the near future, journalists’ unions might negotiate over the deployment of artificial intelligence (AI) in their newsrooms.⁹⁴ (The deployment of new workplace technology is typically a mandatory subject of bargaining.) This is an example of a larger issue over which unions negotiate frequently: how labor-saving technology will be used, and how the resulting cost savings will be distributed. Those questions can be existentially important for workers in any context – but this context will have consequences for the broader public as well. A best-case scenario might involve cautious deployment of AI for specific routine tasks, subject to careful checking by humans, in ways that free up journalists to concentrate on investigative reporting. But the worst-case scenario would involve increasing reliance on AI for substance, perhaps triggering a vicious cycle of poor-quality output and fall-offs in subscribers and advertisers.

US news outlets seem to be at an inflection point, and the danger is that publishers will continue to respond by prioritizing short-term fixes at the long-term cost of both public trust and public access to reliable news sources. Journalists may not be able to prevent this outcome – but their odds are better if they act collectively. But how does US labor law shape the leverage that journalists bring to bear on news outlets? The next section turns to that question.

15.3.3 Labor Law, the First Amendment and Journalists’ Unions

The previous section made the case that journalists’ unions can help resist misinformation, including because they provide a way for journalists to pressure news outlets to adopt and maintain strong journalistic standards, and to enforce those standards in individual situations. But one barrier to unions’ effectiveness is the weakness of US labor law.⁹⁵ First, as I have described elsewhere, labor law preserves a very broad scope for employers to fight organizing drives,⁹⁶ including by making serious ‘misrepresentations’ about the likely effects of unionization.⁹⁷ As a result, it can be very difficult for workers to unionize in the first place, making the recent string of successful union drives among journalists all the more remarkable. In addition, US labor law does very little to compel employers to agree a contract. The NLRA requires employers (and unions) to bargain in ‘good faith’, but provides no governmental mechanism to resolve bargaining impasses;⁹⁸ instead, it assumes that parties will use their ‘economic weapons’, such as strikes or lockouts, to pressure the other side to reach a deal. And although the NLRA confers legal protection on most strikes⁹⁹ – meaning that employers cannot retaliate against strikers by firing them – workers striking over economic issues can be ‘permanently replaced’.¹⁰⁰ Moreover, labor law generally requires employers to hold working conditions constant while bargaining, but then allows them to make certain unilateral changes to working conditions upon reaching impasse.¹⁰¹ This set of principles tends to give employers the upper hand during bargaining, no matter their industry. But at least two US Courts of Appeals, including the US Court of Appeals for the District of Columbia Circuit, have held that the rules should be even more employer-friendly when unions seek to bargain over issues of editorial policy.¹⁰² This is because they see a bargaining requirement – even under these employer-friendly set of rules related to impasse and unilateral changes – as raising First Amendment concerns.

News outlets have been raising First Amendment objections to labor law since the NLRA was enacted in 1935, and the Supreme Court considered this argument in the 1937 case Associated Press v. NLRB.¹⁰³ This decision was issued as part of a trio of cases in which the Court upheld the NLRA as a valid exercise of Congress’s Commerce Clause authority.¹⁰⁴ The case began when the Associated Press (AP) fired one of its reporters who was active with the American Newspaper Guild. Arguing that it could not be compelled to reinstate the reporter, the AP argued before the Supreme Court that ‘[t]o name the men who shall choose and write the news for publication is no different either in principle or in result from naming what shall be written or published. Here the author and the product are one and inseparable. If one is to be free, so must the other’.¹⁰⁵ In other words, because the AP had a First Amendment right to choose what to publish, it also had an absolute right to decide whom to (or not to) employ.¹⁰⁶ The Court rejected this argument, correctly observing that the NLRA ‘does not compel the petitioner to employ any one; it does not require that the petitioner retain in its employ an incompetent editor or one who fails faithfully to edit the news to reflect the facts without bias or prejudice’.¹⁰⁷ However, the Court did not preclude the possibility of future First Amendment challenges to specific aspects of labor law.¹⁰⁸

Subsequently, news outlets have had some success in arguing that certain applications of labor law infringe their First Amendment rights. For example, consider Passaic Daily News v. NLRB, in which the employer-newspaper cancelled a bureau chief’s regular column in retaliation for his support for a unionization effort.¹⁰⁹ Normally, the remedy for this sort of anti-union retaliation would be an order for the employer to restore the status quo ante by reinstating the union supporter’s duties – but in this case, the Court held that it would be inconsistent with the First Amendment to order the employer to publish the bureau chief’s column.¹¹⁰ Unfortunately, the discussion of the First Amendment issue was quite limited – rather than considering the government interests at stake and possible alternative ways to achieve them, the Court seemed to assume that because the order to reinstate the column implicated the First Amendment, it also violated the First Amendment.¹¹¹

The District of Columbia Circuit reached a similar conclusion in Ampersand Publishing v. NLRB, a case that arose after the owner and publisher of the Santa Barbara News-Press fired or otherwise disciplined several union supporters. Here, the core of the dispute centered on journalistic ethics: reporters and editors employed on the paper’s news-gathering side became concerned about how the paper’s owner, along with an editorial writer who was promoted to publisher, exercised influence over news-gathering and reporting. The reporters unionized, and sought to bargain over these issues as well as bread-and-butter topics.¹¹² When the paper’s leadership resisted, the journalists held a rally calling for readers to cancel their subscriptions, and the paper responded by firing a group of journalists who supported the union.¹¹³ The NLRB ordered the paper to reinstate the fired reporters, but the DC Circuit reversed on First Amendment grounds, writing that ‘[g]iven the publisher’s First Amendment rights, issues of what is published and not published are not generally a “legitimate employee concern”’, because ‘The First Amendment affords a publisher – not a reporter – absolute authority to shape a newspaper’s content’.¹¹⁴

Two important legal implications flow from this approach. The first is that editorial policies would be at most a ‘permissive’ subject of bargaining, meaning that employers would remain free to change those policies throughout the bargaining process, and they would not bear on whether impasse was reached. The second, more consequential, implication is that an employer could fire or otherwise discipline employees who struck over either a news outlet’s refusal to bargain over editorial policies, or the substance of those policies. In other words, journalists could not rely on the NLRA’s bargaining requirement or its anti-retaliation provision with respect to editorial policies. My view is that this approach is seriously flawed because it conflates labor law – a mechanism to provide limited protections for employees to exercise voice vis-á-vis their employers – with direct government control of the press. Unfortunately, the current Supreme Court’s highly formalistic approach to First Amendment cases means that it would likely uphold the DC Circuit’s approach, were it to decide a similar case.¹¹⁵

But even assuming that these courts’ understanding of the First Amendment’s interplay with labor law is doctrinally correct, journalists’ unions will still likely succeed in influencing mainstream outlets’ editorial policies. Unions that lack legal rights can still appeal to the public, and editorial integrity is an appealing message. Moreover, many individual journalists have substantial presences on social media platforms, making it relatively easy to reach both the public and other journalists, and news outlets within the same media market report on each other, as illustrated by coverage in the Los Angeles Times of labor conflicts at the Santa Barbara News-Press.¹¹⁶ Finally, once an outlet commits to be bound by a CBA provision related to editorial integrity, that provision is likely to be enforceable through the usual channels without raising a First Amendment problem.¹¹⁷

As a result, journalists’ unions will have greater prospects for success when they organize and seek to bargain over editorial integrity before there is an integrity problem at their outlet. Once the train has left the station – as was seemingly the case at the Santa Barbara News-Press – the outlet may simply double down and fire complaining journalists.¹¹⁸ But in the absence of a current conflict, outlets should be willing to agree to general integrity commitments along with specific mechanisms to make them real, particularly because these provisions do not generally come with attached price-tags. Thus, although labor law’s weakness is a drawback – and an especially significant one in this context – organizing and collective bargaining still have promise as mechanisms to protect journalistic integrity.

15.4 Conclusion

This chapter has argued that labor unions are important to the fight against misinformation, both in the near term and on a longer time horizon. Already, unions can inoculate their members against misinformation through member-to-member education, and counter-narratives advanced in the media. In the longer run, higher levels of unionization could decrease the social inequality and resentment that make a society more vulnerable to misinformation.

Further, unions of information workers can play an important role in maintaining the integrity of their own workplaces. (This chapter has focused on journalists, though similar arguments could be made about other groups, including teachers and librarians.) First, collective bargaining between journalists’ unions and news outlets can improve bread-and-butter labor standards so that journalism will remain a realistic and attractive career option for people from a diverse range of backgrounds – an important predicate for public trust. Second, collective bargaining is an opportunity to establish meaningful protections for ethical journalistic practices, which unions can then monitor and enforce through grievance procedures. These labor standards and protections are likely to be especially important as news outlets continue to grapple with the serious challenges posed by technology, changing business models and financialization, and threats posed by authoritarian politics.

Unfortunately, union density in the USA has been declining since the mid-1950s.¹¹⁹ Today, private sector union density hovers at around 6 percent; public sector union density is much higher, but it also varies tremendously among different regions of the country. Moreover, although labor unions enjoy widespread and relatively bipartisan public support,¹²⁰ the Republican Party is mostly hostile to organized labor, making pro-union labor law reform very unlikely, especially at the federal level. This means a resurgence in union strength will have to come despite labor law, not because of it. There is a ray of hope, however: young workers have a remarkably favorable view of unions and unionizing, and are driving a new wave of organizing, especially among service workers.¹²¹ Whether young workers will be able to unionize in sufficient numbers to move the needle is unclear – but there is more reason for optimism on this topic today than at any point in the last three decades.

Afterword For Whose Benefit Is the Freedom of Speech?

Vincent Blasi

United States v. Alvarez, oral argument of Jonathan D. Libby on behalf of the respondent, 22 February 2012:

Chief Justice Roberts: What is – what is the First Amendment value in a lie, a pure lie?

Mr. Libby: Just a pure lie? There can be a number of values. There’s the value of personal autonomy.

Chief Justice Roberts: The value of what?

Mr. Libby: Personal autonomy.

Chief Justice Roberts: What does that mean?

Mr. Libby: Well, that we get to – we get to exaggerate and create.

Chief Justice Roberts: No, not exaggerate – lie.

In United States v. Alvarez,¹ the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling the truth about their credentials and experiences. Nevertheless, as both the plurality and the concurring justices who together formed the majority in Alvarez viewed the case, it was the liar’s interest in saying what he wished that carried the day. Why is that? Crucial to answering this question is whether ‘the freedom of speech’ that the First Amendment tolerates ‘no law abridging’ is understood to be primarily speaker-centered, audience-centered, or society-centered.

I maintain that up until the last fifty years the freedom of speech that is the subject of First Amendment protection had been understood to be primarily for the benefit of audiences and the society beyond. Only as a result of modern Supreme Court interpretations has a speaker-centered understanding of that freedom become dominant. One of the consequences of this shift has been that today liars are more able than ever before to cause harm, and not only because of the way that digital technology amplifies their misbegotten communicative power. Constitutional interpretation is also part of the problem. At least that is so in the USA.

Other societies that have maintained a less speaker-centered approach to the freedom of speech have more capability on that account to punish lying. That capability might become more and more important as digital technology vastly increases the means, the incidence and the reach of lying. For that reason, as well as many others, it is important to realize that the current speaker-centered understanding of the freedom of speech that makes the USA an outlier is something of an aberration – not only by comparison to how other countries view the matter but also by comparison to how the First Amendment itself was conceived in earlier eras.

***

The principal author of the provision that eventually became the First Amendment was James Madison. He also was probably the most influential advocate in securing its passage by Congress and ratification by the states. Earlier, in a fascinating exchange of letters with Thomas Jefferson,² Madison had wondered how efficacious ‘parchment barriers’ protecting the freedoms of speech and press can be in a government that takes the form of a republic. He conceded that declaring rights in a charter can serve as a rallying standard for arousing popular resistance to corrupt or oppressive monarchical rule – Jefferson was receiving Madison’s ruminations while residing in Paris on the eve of the French Revolution – but surmised that the situation must be different in a republic, where the chief danger lies in the wrongful exercise of majority will itself. Nevertheless, Madison concluded that such a declaration could conceivably have a constructive role to play in a republic by means of influencing public opinion: ‘The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion.’³ Moreover,

although it be generally true, as above stated, that the danger of oppression lies in the interested majorities of the people rather than usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source, and on such, a bill of rights will be a good ground for an appeal to the sense of the community.⁴

This exchange with Jefferson was echoed on 8 June 1789, when as a member of the House of Representatives Madison spoke in favor adopting a bill of rights which he had drafted, including what became the First Amendment.⁵ He addressed head-on the objection that declaring such rights might be ineffectual:

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention … [Y]et, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.⁶

Ten years later, in response to the passage by his political opponents of the Sedition Act of 1798 prohibiting ‘any false, scandalous, and malicious writing or writings against the government of the United States’,⁷ Madison published his most detailed account of the meaning of the First Amendment, and once again he made public opinion the touchstone. The Report on the Virginia Resolutions,⁸ written by Madison on behalf of the Virginia Legislature, argued that the federal Sedition Act was unconstitutional under the First Amendment for violating ‘that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right’.⁹ Madison noted that the Constitution supposes that ‘the President, the Congress, and each of its houses, may not discharge their trusts’.¹⁰ Whenever that happens, he reasoned, ‘it is the duty as well as right of intelligent and faithful citizens’ to control such abuses by means of ‘the censorship [i.e., censure] of the public opinion’.¹¹ He made no mention of an individual right of self-expression. His focus was entirely on the role that an informed public opinion must play as a check on official conduct.

In 1964, the Virginia Report was made the centerpiece of the Supreme Court’s landmark opinion in New York Times v. Sullivan,¹² which ruled invalid under the First Amendment a state court defamation judgment against a national newspaper for some factual errors in a story about abusive treatment of civil rights protesters by local officials in Montgomery, Alabama. Justice Brennan’s opinion for the Court invoked Madison for the proposition that ‘breathing space’ for unintentional factual error is requisite under the First Amendment because of ‘a profound national commitment that debate on public issues should be uninhibited, robust and wide-open’.¹³ It was ‘the great controversy over the Sedition Act of 1798’, said Justice Brennan, ‘which first crystallized a national awareness of the central meaning of the First Amendment’.¹⁴ Not only Madison’s writing on the subject but also that of John Milton (Areopagitica),¹⁵ John Stuart Mill (On Liberty)¹⁶ and Oliver Wendell Holmes (dissenting opinion in Abrams v. United States)¹⁷ were invoked by Justice Brennan in his opinion for the Court majority in Sullivan. Like Madison, each of these thinkers had developed a well-known and distinctly audience-centered account of the freedom of speech.

***

In the early 1930s, when the US Supreme Court first began to rule in favor of First Amendment claimants, the majority opinions, usually written by Chief Justice Charles Evans Hughes, emphasized the interests of audiences and the society beyond rather than the interests of speakers. In Stromberg v. California,¹⁸ vindicating the right to display a red flag as a symbol of opposition to government, Chief Justice Hughes said: ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’¹⁹ In Near v. Minnesota,²⁰ holding that judicial enjoining of a publication is as problematic under the First Amendment as requiring a license for the privilege of printing, Hughes quoted Madison’s Virginia Report for the proposition that ‘to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression’.²¹ Hughes also invoked the following passage about the freedom of the press contained in a letter written in 1774 by the Continental Congress to the inhabitants of Quebec urging them to join in resisting British colonial rule:

The importance of [freedom of the press] consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.²²

Not only founding-era history but also twentieth-century developments informed the Chief Justice’s understanding in Near of the audience- and society-centered justification for freedom of the press:

[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities.²³

Further evidence of how the First Amendment was viewed by the Court that first gave it life is the opinion Hughes wrote for a unanimous Court in Semler v. Oregon State Board of Dental Examiners,²⁴ a case about the constitutionality of a state law that prohibited dentists from ‘advertising to guarantee any dental service, or to perform any dental operation painlessly’.²⁵ His explanation for upholding the law focused on audience well-being:

It is no answer to say, as regards appellant’s claim of right to advertise his ‘professional superiority’ or his ‘performance of professional services in a superior manner’, that he is telling the truth. In framing its policy, the legislature was not bound to provide for determinations of the relative proficiency of particular practitioners. The legislature was entitled to consider the general effects of the practices which it described, and if these effects were injurious in facilitating unwarranted and misleading claims, to counteract them by a general rule even though, in particular instances, there might be no actual deception or misstatement.²⁶

Hughes treated the case as raising only an unpersuasive liberty-of-contract objection. No Justice, and not even the dentists asserting a right to advertise, even considered the possibility that a speaker-centered First Amendment had anything to do with the dispute.

Two landmark cases decided in the early 1940s, after Chief Justice Hughes had retired, continued the emphasis on audience and societal interests. In Chaplinsky v. New Hampshire,²⁷ the Court ruled that the First Amendment does not protect a speaker’s right to utter face-to-face epithets, even to assert a political point. One day in Rochester, New Hampshire, a Jehovah’s Witness named Walter Chaplinsky offended local citizens in front of the town hall by denouncing all religion as a ‘racket’. The City Marshall, one Bowering, came upon the scene, only to be derided by Chaplinsky in the following terms: ‘You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.’²⁸ The US Supreme Court unanimously agreed that Chaplinsky’s outburst directed to a government official was not protected under the First Amendment: ‘[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’²⁹ Chaplinsky’s personal interest in having his say in his own biting way was given short shrift. What determined the outcome of the case was the lack of value to any audience of the speech at issue.

In West Virginia State Board of Education v. Barnette,³⁰ the Court held that a schoolchild cannot be required to recite the Pledge of Allegiance in a classroom ceremony. Although the case was largely argued in terms of an asserted individual right to abstain grounded in religious freedom, the majority opinion by Justice Robert Jackson based the holding on a broader freedom derived from the political principle of popular sovereignty: ‘We set up government by the consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.’³¹ Although the hardships of the expelled young Witnesses and their parents made for appealing individual claims, the Court’s interpretation of the First Amendment focused on the various ways that the pledge requirement corrupted public opinion: “Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing”.³²

***

Since the 1930s and 1940s, the Court’s understanding of the freedom of speech has become much more speaker-centered. This is not the place to trace the complicated history of that evolution, but a few representative cases decided within the last fifty years well illustrate the contrast. In Miami Herald Publishing Co. v. Tornillo,³³ the Court interpreted the Press Clause of the First Amendment to disallow ‘a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper’.³⁴ The Court’s analysis began by focusing on audience interests:

It is urged that at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers.³⁵

In contrast, by the latter part of the twentieth century, ‘chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events’.³⁶ Despite this asserted and never disputed development, the Court ruled that:

the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors … The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.³⁷

In terms of classifying the various First Amendment interests in play in Tornillo, the candidate’s claim to have access to the newspaper’s readers can be viewed as either speaker-centered for the benefit of the candidate, or audience-centered in that granting him such access might give the newspaper’s readers additional information and advocacy that would help them decide how to vote in the forthcoming election. By the same token, the newspaper’s claim of a right to exercise maximum control over the content of its pages might be seen as benefiting the newspaper qua speaker or as benefiting its readers who might wish to defer to the judgment of professional journalists regarding what content would best serve their interests.

An additional understanding of the Tornillo ruling at the time might have been that audiences and the society beyond have a strong interest in media entities controlling their published content because of the role such powerful actors can play in holding government accountable due to their local knowledge, expertise, resources and professional credibility. Recall the way that Madison placed such accountability at the center of his argument in the Virginia Report. Such a notion of instrumental journalistic autonomy would resonate with the Court’s talk in Tornillo of the distinctive ‘function of editors’. In sum, Tornillo was a case of apparently rich but uncertain import regarding how the First Amendment would be understood going forward regarding its intended beneficiaries.

Just three years later, the Court invoked the Tornillo holding in support of its ruling that a New Hampshire driver had a First Amendment right to cover up the state’s motto ‘Live Free or Die’ on his license plate.³⁸ Whatever else that case was about, it had nothing to do with journalistic autonomy and very little to do with audience interests. Similarly, a decade later the Court relied heavily upon Tornillo to strike down a law requiring solicitors of charitable donations to disclose to their addressees what percentage of their donations would be passed along to needy recipients rather than used by the solicitors to cover operating expenses or for other purposes.³⁹ Once again, speaker interests dictated the result, on this occasion in the face of a significant audience interest in disclosure. Since then, Tornillo has become a favored precedent for a robust speaker-centered right against ‘compelled speech’, a right enjoyed by almost all targets of regulation, not just journalists, and one that is seldom derived from a comparison of speaker and audience interests.

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)⁴⁰ involved a challenge to a public financing scheme for elections which had been adopted by referendum. A candidate for office agreeing to cap her spending from private contributions was granted an initial public subsidy, which would then be supplemented by a second-stage subsidy if her privately financed opponent spent over a specified amount. The law was challenged by a group of privately financed candidates who claimed that the scheme punished them by making their spending for speaking a trigger for extra public funding being directed to their opponents’ campaigns. The law was defended on the ground that it enabled more and different candidates to run competitive campaigns, thereby giving voters more choices and more information while still not prohibiting privately financed candidates from spending as much as they wished.

In an opinion by Chief Justice Roberts, the Court majority ruled, citing Tornillo, that making a privately financed candidate an instrument for triggering public subsidization of his opponent’s campaign was an encroachment on that candidate’s liberty under the First Amendment even if the overall result was more total speech available to the electorate, and indeed even if the privately financed candidate was still able to outspend the two-stage-subsidized publicly financed candidate.⁴¹ This logic left the four dissenters aghast. As Justice Kagan put it: ‘Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.’⁴²

It is possible, of course, that in certain campaigns the mechanism of the triggered subsidy might cause a privately financed candidate to conclude that his best tactic would be to spend less than he could in order to prevent his opponent from getting the second-stage supplemental subsidy. If so, voters would receive less speech overall. But the majority opinion made no claim that this scenario would ensue more often than the more-spending-by-both-sides scenario. Its ruling was focused exclusively on the burden the law placed on the privately financed candidate. Arizona Free Enterprise Club’s Freedom Club PAC is a speaker-centered, not an audience-centered or system-centered opinion.

A different kind of speaker-centered understanding of the First Amendment drove the Court’s ruling in National Institute of Family and Life Advocates v. Becerra (2018).⁴³ California required clinics that primarily serve pregnant women to inform their potential patients that the state ‘has public programs that provide immediate free or low-cost access to comprehensive family planning services including … contraception, prenatal care, and abortion for eligible women’, and to give them a phone number to call to learn more about such programs.⁴⁴ Private clinics that offered pregnancy testing, prenatal care and moral counseling opposed to abortion argued that it violated their freedom of speech to be required to post the mandated message informing patients of their alternatives.

A closely divided Supreme Court held that the state’s disclosure requirement violated the First Amendment because of its potential adverse effect on the messaging of the private clinics that considered abortion to be immoral. The Court majority treated a service provider’s responsibility to disclose accurate information regarding the availability of alternative services to be as problematic under the First Amendment as would be a requirement that the service provider convey an opinion contrary to its own about the morality of services it declined to provide. In that respect, the National Institute of Family and Life Advocates (NIFLA) holding went well beyond Tornillo, which it cited. Furthermore, the fact that the speech of the clinics was integrated with the act of providing medical services did not reduce the speaker’s claim to exercise full control over what patients heard and read within its walls. The Court never considered any possible First Amendment interest of the patients of the private clinic in learning about the full range of alternatives available to them or in understanding at the outset what services were and were not being made available to them at the private clinic.

The problem with the NIFLA decision lies not with its premise that a speaker, even one taking on the responsibilities of a service provider, has a First Amendment interest of a sort in exercising full control over what accurate information it conveys or chooses not to convey to the persons it seeks to serve. At least when the choice of what to convey might be perceived by an audience as carrying normative implications, a speaker’s interest in not participating in the transmission of certain information might well have First Amendment valence. The problem is that such a conceivable interest was not the only one related to the freedom of speech in play in the case, and the Court majority reasoned as if it was. Regarding the relative importance of speaker interests and listener or societal interests, NIFLA reads nothing like the opinion of Justice Jackson in the foundational compelled speech case, Barnette, involving the compulsory flag salute. Rather, NIFLA represents the modern triumph of the speaker-centered understanding of the freedom of speech.

All of which brings us back to where we began: the Court’s decision in Alvarez, recognizing a speaker’s First Amendment right to claim in a formal public setting that he had earned the Congressional Medal of Honor when he knew that he had not. This was not a case about punishing falsity in the realm of opinion or delusional assertion. All the Justices read the statute to cover only situations in which there could be no doubt that the speaker knew perfectly well that his statements about specific facts were false. Moreover, although the plurality opinion noted that the statute read literally would apply to ‘personal, whispered conversations within a home’, such an application was all but inconceivable. The reasoning of both the plurality and the concurring opinions made it clear that the First Amendment concerns that led to overturning Alvarez’s conviction would have prevailed even if the statute had been confined to lying in a public setting, or even more narrowly in a formal public meeting.

What exactly was the speaker’s legal interest, grounded in the freedom of speech, in being able to tell a deliberate, self-aggrandizing lie to his constituents? It could not have been simply in saying whatever he wished. Had Alvarez issued a ‘true’ threat or directed a face-to-face epithet to a member of his audience, Supreme Court precedent makes clear that he would have had no First Amendment claim whatsoever.⁴⁵ Such communications are not considered to be part of the freedom of speech. So if there is no comprehensive First Amendment right to say what you wish, what was Alvarez’s claim to lie the way he did? How does protecting his lying advance the objectives of the freedom of speech? There would be a First Amendment concern if a speaker’s being vulnerable to prosecution for lying created a risk of being convicted for telling the truth. Some would-be spreaders of truth surely would opt for silence in the face of that risk. But so long as the prohibition is limited, as was the Stolen Valor Act, to knowingly spreading a falsehood about a hard fact concerning oneself, the chilling effect on, or risk of wrongful conviction of, truthful speakers is bound to be minimal.

The plurality and concurring opinions in the case appeared to find it relevant that many persons knowingly lie, not only to burnish their credentials but also to embellish a story or exaggerate a point, and often are indulged in doing so. In that respect, it might seem to be more problematic for a representative government to criminalize the activity than it is to punish threats or face-to-face epithets, which are forms of speech that may or may not be as common as lying but are more universally condemned. A different speaker-based interest was thought by the plurality and concurring opinions to be a reason not to uphold the criminalization of deliberate lying. Precisely because the activity is common, prosecutorial discretion not to press charges is bound to play a large role in enforcement practices.

Justice Kennedy for the plurality, and Justice Breyer for himself and Justice Kagan, worried that prosecutorial discretion could be improperly based on disapproval of a speaker’s ideas. Such selectivity would violate a speaker-based interest not to be discriminated against on the basis of one’s beliefs. However, that risk is not limited to the selective prosecution of communicative crimes. A regime inclined to punish beliefs could do so by selectively enforcing housing codes, tax filing requirements or speed limits. Were that to occur, the objects of such selective prosecutions would be punished for their beliefs just as much as when the underlying crime is lying. The Stolen Valor Act presented no unusual risk of being selectively enforced.

The receptivity of the plurality and concurring Justices in Alvarez to these less-than-compelling speaker-centered interests was noteworthy. Equally noteworthy was the lack of receptivity exhibited by the prevailing Justices to the audience- and society-centered interests grounded in the freedom of speech that might support regulating the type of lying at issue in the case. Those could include autonomy interests of listeners not to be manipulated, as well as audience and societal interests in fact-based political accountability and productive public discourse. Justice Kennedy said nothing at all about the wrong done to individual audience members by their being lied to. He said a lot about public discourse, however. He discovered in the Stolen Valor Act the seeds of the most notorious regime of comprehensive thought control ever devised by the human imagination:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949).⁴⁶

This analogy is dramatic but its drama is of the fictional sort. Oceania’s infamous ‘Ministry of Truth’ existed to decree official truth and punish deviants from that ‘truth’. It was about policing heresy. The Stolen Valor Act punished dishonesty not heresy. The only ‘truth’ it enforced was the understanding the speaker himself had developed before venturing out to mislead others regarding what he believed. A government that punishes deliberate lying regarding hard facts is not thereby enforcing its own truth.

Later in his opinion, Justice Kennedy continued to operate at a very high level of generality: ‘[S]uppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.’⁴⁷ It is a stretch to characterize what was done to Alvarez as ‘suppression of speech’ by a government seeking to ‘orchestrate public discussion through content-based mandates’. He was convicted of making a deliberate lie about a hard fact concerning an important matter singled out by statute and on the basis of proof beyond a reasonable doubt that he understood the falsity of his statement. His conviction was a discrete event, not part of a wide-ranging, ‘list’-driven effort by government to control the thought of its citizens.

There is a place in legal analysis for slippery slope arguments, but they lose credibility when they are employed indiscriminately. Flat-out lying about one’s receipt of a specific award falls into a category of communicative activity that is notable for its boundedness. No questions of characterization, intention or degree complicate the classification. Any doctrine devised to address the dangers and transgressions of that activity can be contained. To equate the punishment of deliberate lying about a hard fact concerning the speaker’s own experience with comprehensive, dogmatic Orwellian thought control is not to take seriously the distinctive audience and societal interests that are jeopardized by such lying.

That said, some observers who understand the freedom of speech to be at least partly about audience and societal truth-seeking might believe, with Justice Kennedy, that those objectives would be better served if liars were regulated exclusively by refutation. In fact, a preference for private refutation had an honored place in the free speech tradition of yore that gave considerable weight to audience and societal interests. Justice Brandeis memorably argued in Whitney v. California that, when time permits, ‘falsehood and fallacies’ are corrected better by ‘more speech’ than by ‘enforced silence’, and that ‘the fitting remedy for evil counsels is good ones’.⁴⁸ Justice Brandeis’s favoring of private correction was prompted by what he took to be the benefit of giving audience members informal civic responsibilities. ‘[T]he greatest menace to freedom’, he said in Whitney, ‘is an inert people’.⁴⁹ Justice Kennedy’s concern that authoritative legal correction might be obtuse or sought for ulterior purposes was not mentioned by Justice Brandeis in Whitney. As a legendary reformer, he did not share Justice Kennedy’s comprehensive distrust of government regulation. Indeed, it is not at all clear from the case context whether the ‘falsehood and fallacies’ and ‘evil counsels’ that Justice Brandeis believed were better corrected by ‘more speech’ than by regulation included knowing lies about hard facts concerning the speaker’s own personal experience. The defendant in Whitney was not prosecuted for lying.

The older free speech tradition also counseled that the circulation of false ideas can have heuristic value for audiences. In his concurring opinion in Alvarez, Justice Breyer invoked Mill’s famous observation that one good reason to protect ‘the liberty of thought and discussion’ is that when audiences confront falsity they can develop a deeper understanding of truth and a better capacity to apply and defend it.⁵⁰ Mill made that point in a chapter of On Liberty in which he discussed how false opinions about values and objectives and matters such as historical causation and political efficacy should be fairly considered and turned to constructive heuristic use. He did not take up the subject of deliberate lies in that chapter. Perhaps Mill thought that discrediting a knowing lie about a hard fact such as whether a specific person had actually been awarded a particular medal does not require or lead to the depth of understanding he took to be the benefit to audiences of engaging with false moral or interpretative opinions.

It is a serious question whether the regulation of specific lies should be governed by the same principles that govern the regulation of unorthodox opinions relating to objectives, or best means, or norms, or predicted effects. The motives of liars are fundamentally different from the motives of ideological provocateurs and other kinds of contrarians. The value to audiences of being exposed to untrue factual assertions regarding the speaker’s personal experiences is of a lesser order than the value to audiences of being exposed to aspirational, explanatory and critical ideas that lack current public acceptance. The difficulty of defining and proving violations is much greater when the legally consequential behavior consists of assertions of value or efficacy rather than assertions of specific hard facts. The reasons to distrust regulators are better validated by history when they assert control over heresy, extremism or foolishness than when they assert control over dishonesty. These are differences that the prevailing opinions in Alvarez might have addressed directly. Instead, the possible distinctiveness of disputes over deliberate lies regarding hard facts concerning the speaker’s personal experience was glossed over.

The current Court’s speaker-centered approach to interpreting the First Amendment is in consonance with its conflating of deliberate lies with provocative opinions. When the interests of speakers is the primary concern and when distrust of regulators is a large part of the constitutional tradition, courts might understandably be in search of formal, relatively mechanistic, not overly refined or subdivided criteria of categorization. Reading the First Amendment to protect ‘the freedom of speech’ rather than ‘the freedom of sincere speech’ or ‘the freedom of speech that is useful to audiences’ is tempting. (An audience-centered approach might protect something more akin to Mill’s ‘freedom of thought and discussion’.)

A textualist might think it is self-evident that the proper unit of reference is ‘the freedom of speech’ simpliciter, but that only raises the interpretative question of what ‘the’ freedom specified in the text of the First Amendment refers to. Is it a nearly all-inclusive freedom of speaking, as the current Court would have it? Or is the reference instead to a less encompassing, more determinate set consisting of the modern analogs of certain historical claims to communicative liberty that were thought at the time of the Amendment’s ratification to serve especially important functions?

The recent Court’s practice of interpreting the First Amendment expansively in the spirit of conflation with small regard for function has not been confined to the question of how to think about lying. Commercial speech, for example, has been brought within the coverage of the First Amendment in an increasingly indiscriminate manner, with the justification no longer limited to the protection of audience interests.⁵¹ Chief Justice Hughes’ assumption in 1935 that dental advertising had nothing to do with the freedom of speech now seems doctrinally anachronistic, even as he certainly qualifies as the better ‘originalist’ on this point.⁵²

The contemporary turn in First Amendment doctrine toward privileging speaker interests is ahistorical and theoretically problematic, but it might be defensible on practical grounds. It could be the case that speaker interests can be turned into operational legal rights in a more disciplined, less politicized, way than is true for audience and societal interests, which are harder to evaluate because the frame of reference is necessarily broader and more drawn out chronologically. That is a plausible theory, but whether experience confirms it is open to question. The Court’s recent performance in finding case-dispositive speaker interests in the Arizona Free Enterprise Club’s Freedom Club PAC and NIFLA decisions discussed above hardly inspires confidence on this point.

The Justices who made up the majority in Alvarez declined to disable government entirely from the punishing of lies. Longstanding laws against perjury and either impersonating a government official or lying to one are not imperiled by the Court’s ruling, they specified.⁵³ More generally, both Justice Kennedy’s plurality opinion and that of the concurring Justices appeared to signal a willingness to uphold public regulatory authority over knowing lies that cause material harm to specific individuals.⁵⁴ Thus, some interests other than those of speakers were recognized, but those were not the regulatory interests that carry First Amendment valence. To permit individuated material interests to justify the punishment of lying but not the regulatory interest in preventing the general public from being deceived about a matter of common concern is perverse from a First Amendment standpoint. It means that the liars who have the most freedom to practice their craft are those whose principal victim is public understanding.

One argument for limiting the power to punish lying to cases of individuated material harm might be the supposition that those kinds of harms are the most serious. Both the plurality and the concurring Justices in Alvarez appear to have embraced that view. But such an evaluation would certainly have surprised the generation that gave us the First Amendment. To conclude that it is a lower-level harm to cause the public at large to be misinformed about such a matter as the credentials and truthfulness of a public official is, to put it mildly, in some tension with the founding generation’s preoccupation with public opinion as the single most important object of institutional design. As Madison observed in an essay published four days after the ratification of the First Amendment: ‘Public opinion sets bounds to every government, and is the real sovereign in every free one.’⁵⁵

Over a century ago, Judge Learned Hand identified a procedural incongruity that helps to explain why audience and societal interests in the freedom of speech tend to be undervalued in the United States. In a letter to the great First Amendment scholar Zechariah Chafee, Jr., Judge Hand said: ‘while the justification for freedom of speech is public enlightenment, historically the “right” – though I join you in hating the word – is vested in the speaker constitutionally’.⁵⁶ Usually, the First Amendment interests of speakers and their audiences are aligned, so it does not matter greatly that audience and societal interests in public enlightenment find their expression through speakers who are resisting being regulated. But there is no such alignment when lies are at issue. In that situation, the First Amendment interests of audiences and the broader public typically are served rather than threatened by laws punishing lying. When that is the dynamic, it is important that those interests not lose their special First Amendment salience simply because they are being asserted to justify rather than invalidate a regulation. That, I claim, is what happened in Alvarez, at least in the plurality and concurring opinions. As a result, the way that liars not only exercise the freedom of speech but also undercut it did not influence the outcome of the case as much as it should have.

In the United States courts have played an outsized role in giving meaning and efficacy to the freedom of speech. In other countries, that responsibility has been divided more widely among various government actors. As digital technology increases the incidence, extends the range, and magnifies the consequences of deliberate lying, governments and citizens worldwide can be expected to look beyond their own borders for assistance in trying to fashion a regulatory response that addresses the problem but still does justice to the freedom of speech. In doing so, they should keep in mind that the juriscentric way that constitutional rights have been elaborated in the USA has led to an unfortunate understanding of the freedom of speech that privileges speaker interests over audience and societal interests relating to the acquisition of knowledge, thereby giving liars more than their due.