Deterring Political Deceit

Offers a new First Amendment framework that permits deterring political deceit, while minimizing the chill of honest discourse, by targeting fraudulent intent, not false content

More than ever, influencers and politicians communicate political messages that they do not believe to be true. This political deceit is constitutionally valueless, harms public discourse, and impedes effective public decision-making. Yet, under current doctrine, the Supreme Court would invalidate any regulation of deceitful political advocacy as an abridgment of political speech.

In Deterring Political Deceit, David Chang explores why traditional efforts to target falsity in political speech have been rooted in constitutional error. While the Court has determined that the defamation of public officials is unprotected, it wrongly declared that false statements of fact lack constitutional value, and overlooked the contradiction between deceitful communicative intent and free speech values. Both errors together have prevented reformers from identifying the political fraudsters who should be deterred by law, and recognizing the politically sincere who should be protected and respected, even when wrong.

Chang makes a bold and compelling legal argument for why deceitful political speech should be excluded from First Amendment protection. He proposes a dexterous solution: A false political statement is constitutionally valuable, and deserves protection–if the speaker believes their message to be true. A political message that the speaker did not believe to be true, regardless of its content, is constitutionally valueless, societally harmful, and does not deserve protection from regulatory deterrence. Drawing upon fresh, valuable insights, Deterring Political Deceit identifies wrongdoing that challenges the survival of this constitutional democracy, and charts a path for the People’s self-defense through law.