Disinformation and the First Amendment: Fraud on the Public

(Excerpt) Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which has caused numerous harms. A few of them are worth noting here to illustrate the problem posed by harmful disinformation. One harm caused by the Big Lie was that it prompted Republicans in dozens of states to attempt to pass hundreds of voter suppression laws to combat nonexistent voter fraud. The irony of these laws is that, while the motivation behind them was a fictional threat to the electoral process, the effect of the laws is a real threat to the electoral process: disenfranchisement of American voters. The laws are designed to disenfranchise those voters Republicans view as likely to vote for someone other than the Republican candidate, a voting bloc that includes minority groups, college students, college graduates, and those living in and around cities. In addition to an attack on voting rights, the Big Lie also caused the January 6, 2021, attack on the U.S. Capitol. After weeks of false claims in the media of widespread election and voter fraud, the “Stop the Steal” rally was organized in Washington, D.C. There, after a string of speakers spread inflammatory rhetoric to the gathered crowd of thousands, Trump took the stage and told those in attendance he would “never concede” the election, which he called “stolen.” In the speech, Trump called on Vice President Mike Pence to overturn the election results. Trump’s speech contained falsehoods that inflamed the crowd, calling on those in attendance to go to the Capitol stating, “if you don’t fight like hell, you’re not going to have a country anymore,” while at the same time calling Biden “an illegitimate president.” Other Republicans also inflamed the crowd. Following the rally, the crowd marched on the Capitol, overwhelmed the police, and broke into the building. In addition to property damage and stolen items from the Capitol, five people died during the storming of the Capitol, including a Capitol Police officer. At least 138 police officers were injured, including fifteen hospitalized with severe injuries. For example, one D.C. Metro police officer “was hit six times with a stun gun,” suffered a heart attack, and “lost the tip of” one of his fingers. Another officer suffered “two cracked ribs and two smashed spinal discs,” another lost an eye, another “lost three fingers,” another was impaled “with a metal fence stake,” and a large number of officers suffered brain trauma, including several with concussions