Photo: Orhan Cam via Shutterstock Incendiary Falsehoods and the First Amendment
When content is false and incendiary it aims not only to deceive but to deprive other speakers of credibility and attention. It undermines, rather than contributes to, debate; it inflames rather than informs.
January 26, 2022 at 10:00 AM
6 minute read
The Washington Post report on January 6 informs us that First Amendment considerations allegedly dissuaded the Justice Department and the FBI from taking vigorous action when confronted with calls for violent and unlawful acts over social media in the run up to the insurrection. (Washington Post Report, The Attack, "Red Flags" chapter at text accompanying n.4.) The first amendment is also invoked as a defense by the attorneys for Trump and those who incited violence on January 6. (E.g., "Trump's defense claims Jan. 6 speech linked to Capitol attack is protected by First Amendment," Associated Press, quoting among others remarks by Trump attorney Michael van der Veen in Senate impeachment hearing; Defendant Giuliani's Motion to Dismiss Amended Complaint, Hon. Bernie Thompson v. Trump, Case 1:21-cv-00400-APM (D. Columbia May 26, 2001).) But it stands the First amendment and principles of free speech on their heads to suggest that they provide protection for incendiary falsehoods such as fraudulent claims about election results and pleas to seize power by any means necessary. In the free-for-all environment of new media desperate for audiences, we must be particularly vigilant about the unbridled spreading of incendiary falsehoods.
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