How the First Amendment Became a Threat to Democracy and How to Fix It

The First Amendment, added to the Constitution in 1791 to protect our freedom of speech and other rights, now threatens the survival of American democracy.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment, added to the Constitution in 1791 to protect our freedom of speech and other rights, now threatens the survival of American democracy. That the threat is indirect does not make it any less insidious. We can blame the Supreme Court’s well-meaning but naïve interpretation of the First Amendment in three key cases, New York Times Co. v. Sullivan 376 U.S. 254 (1964), Buckley v. Valeo 424 v. 1 (1976), and Citizens United v. Federal Election Commission 558 U.S. 310 (2010)-but the court is not the only culprit. As a retired lawyer, I cannot sit idly by without addressing the dire situation we find ourselves in and what can be done to mitigate it.

Here’s the reality: At any moment, any number of existential threats could seriously disrupt the daily lives of millions of Americans. To cope, voters must be able to rely on fact-based, reasoned beliefs as the basis for their votes. Yet, voters can’t form such beliefs on complicated and contentious issues if they are fed false and misleading information disguised as fact. Although my primary purpose in writing articles for Medium and Illumination is to introduce readers to my book, Payback: Why the Top 1% Must Invest in the Rest and How It Can Renew America, I now believe that the threat to democracy posed by falsehoods disguised as fact under the protection of the First Amendment is so great that it requires immediate attention.

For American democracy to survive, we must find a way to expurgate the false information that contaminates our political process. To help, this essay breaks the problem of free speech run amok into four parts:

The Demise of Critical Thought and the Rise of ‘Gi-GO’
Voters Drowning in a River of Information
A River Polluted by Pleasant Lies
The Supreme Court’s Failure to Cleanse the River of Contamination

Since carping about the First Amendment is pointless without advancing a proposal to fix it, I demonstrate how voters could, if they choose, force Congress to enact legislation that would cleanse political discourse of much of the misinformation that currently pollutes it. This could be done within the strict wording of the First Amendment and without restricting the free flow of factual information available to voters. While the fix isn’t easy or simple, it’s important to remember that where political will exists, so do solutions. My hope is that in this essay you find some of both.

Part 1: The Demise of Critical Thought and the Rise of ‘Gi-GO’

Being dependent on what a majority of voters believe explains why history shows that democracy has failed more often than it has succeeded. In a democracy, voters are free to believe anything they wish, but democracy can easily fail if voters come to believe things that aren’t so and, as a result, support anti-democratic policies and candidates.

If the beliefs that guide voters’ choices are the product of their thought processes, then the quality of those beliefs depends on the rigor of their thinking. In coming to a particular belief, a rigorous thought process requires one to gather as much relevant information as possible, determine how much of it is factual, and apply reason to determine if the facts justify the belief. Yet, gathering facts is more complicated than it appears because it assumes that voters know the difference between fact and opinion or speculation.

Facts are assertions that can be proven or disproven in a court of law while opinions and speculations are not. Assertions using weasel words like “socialist,” “fascist,” “woke,” “cancel culture,” “replacement,” “weaponization,” “sexualize,” “disaster,” and similar words aren’t provable in a court of law because they have no objective meaning outside the mind of the person making the assertion; they’re merely epithets. To be a fact, an assertion must include only words with an objective meaning, and which describe an action, a statement, or the authenticity of an object. Once an assertion is made, it is then up to a jury to decide if the person making the assertion is credible.

Personal beliefs are subject to “GI-GO,” shorthand for “garbage-in, garbage-out. Unless voters are diligent in gathering all relevant information, sifting through the information to determine what is fact and what is opinion or speculation, and then applying reason to come to a belief, then it’s likely that their belief will be garbage. Unfortunately, voters have every right to hold garbage beliefs, and many do, which demonstrates a weakness of democracy.

Under American democracy, adult citizens are called upon by government to make two types of decisions that affect the public by 1) serving as jurors and 2) voting in elections. While jurors are required to come to a belief regarding a verdict through a rigorous thought process in which they may consider only admissible evidence, and must apply that evidence in accordance with the court’s jury instructions, voters are free to come to whatever beliefs they wish. Formulating a fact-based, reasoned belief for anyone on anything is iffy under the best of circumstances, but the probability of a jury accomplishing this in reaching a verdict is much greater than that of an electorate when it comes to choosing which policy or candidate will best preserve democratic values.

Not only is the thought process of how jurors come to their beliefs much more rigorous than that for voters, but participation on a jury is also subject to a screening process. Biased or bigoted jurors or jurors lacking competency can be denied membership on a jury, but voters who are unfit due to bias, ignorance, incompetency, bigotry, or other similar reasons can’t be denied their right to vote. Since constitutionally nothing can be done to limit who can vote based on a voter’s mental fitness, the survival of democracy isn’t a given.

Part 2: Voters Drowning in a River of Information

In forming a belief as a basis for casting a vote, voters may pick and choose ideas from a fast-flowing river of information, much of which is suspect. This river is fed by several diverse sources, including the:

candidates and their political consultants and supporters,
mainstream media (print, electronic, and online), and
ideological media (print, electronic, and online).

Candidates and the ideological media expressly advocate partisan points of view while the mainstream media claims to be neutral. In presenting a partisan point of view, candidates and the ideological media can be expected to (1) cherry-pick those facts that support a partisan belief and omit those that contradict it, and (2) pitch partisan opinions and speculations that support a favored candidate’s beliefs. Pitching a partisan line is and should be fair game in persuading voters. What in most instances is tolerated but shouldn’t be is making false and misleading assertions that purport to be fact.

In presenting a non-partisan point of view, the mainstream media should subject all material assertions to rigorous scrutiny and not omit any facts that bear on determining what constitutes a fact-based, reasoned belief. The extent to which the mainstream media satisfies this standard is itself subject to a great deal of skepticism. So, it’s up to voters to do their own due diligence in discerning fact from opinion or speculation. To the extent that the survival of democracy depends on the diligence of voters spending much time and effort to research the accuracy of statements made in political campaigns, democracy is in deep, deep trouble.

Freedom of thought and belief, no matter how ill-informed, bigoted, or oblivious to fact and reason, is an essential value in democracy. But it’s also this value that carries with it the seeds of democracy’s self-destruction. All democracies live under a Sword of Damocles that could fall at any moment when a majority of the voters come to believe foolish things on an existential issue. Purging the river of information of contamination is the best bet to have a well-informed electorate. Since bets aren’t guarantees, the thread that holds the Sword of Damocles is very thin and the fate of democracy remains in peril.

Regardless of the relative merits of relying on information on the candidates from the ideological media or the mainstream media, what matters most is that the river of information is free of false and misleading information purporting to be fact. It asks too much of voters to leave them with the burden of researching the accuracy of information dished out to them in political campaigns. That burden should rest with the originators because they both know the source of the information and the spreaders who should evaluate its credibility before spreading it.

Given the biases of those who feed the river of information and the risk that the mainstream media can make errors, all voters should be skeptical about the accuracy of the information they consume. As a matter of common sense, information is much more likely to be accurate if those who provide it are accountable for misinformation.

Stiff penalties, financial and otherwise, are the best guarantors of the accuracy of the information being provided, and lax penalties for originating and spreading false and misleading information are an open invitation for error, honest or otherwise.

Part 3: A River Polluted by Pleasant Lies

A few millennia before today’s age of scientific polling, an early political consultant, Quintus Tullis Cicero, Marcus Tullis Cicero’s younger brother, aptly observed that voters are more likely to believe a pleasant lie than a harsh truth. This reality explains why many voters choose to reinforce their prejudices by relying for information almost exclusively on their preferred candidates and sympathetic ideological media. There’s a name for this reliance on friendly information sources: it’s called “gullibility.”

As an example of voters’ willingness to believe a pleasant lie instead of a harsh truth, over the last 40-plus years, millions of voters have bought in to the lie that tax cuts pay for themselves, thereby resulting in America’s national debt rising to historically high levels. For a voter to overcome a pleasant lie uttered over and over requires that the voter engage in a rigorous thought process, something that doesn’t come naturally to most voters.

Fully aware that voters prefer pleasant lies over harsh truths, candidates, aided by a cadre of highly paid political consultants who are expert in crafting pleasant lies, pollute the river of information with volumes of false and misleading purported facts. To normalize the practice of pedaling dangerous false and misleading information to voters as fact, the political consultants and ideological media have successfully labeled it as “spin.” Spin is a gentle-sounding and appealing euphemism (worthy of George Orwell’s invention) to make the practice sound respectable.

There are two types of spin:

Tolerable spin, i.e., the expression of opinions and speculation that may be vile and goofy but which cannot be disproven in a court of law
Corrupt spin, i.e., the origination and spreading of false and misleading information purporting to be fact, yet can be disproven in a court of law

In the politics of a free society, tolerable spin, regardless of how intellectually dishonest or irrational it may be, must be tolerated because people are free to think and choose to believe whatever they wish without government interference. But corrupt spin shouldn’t be tolerated. Facts are critical in commerce and also should be in politics. Just as sellers aren’t allowed to defraud buyers with false promises, politicians, their supporters, and the media shouldn’t be allowed to defraud voters with corrupt spin.

For democracy to work, campaigns should be decided on facts and not misinformation.

Part 4: The Supreme Court’s Failure to Cleanse the River of Contamination

Three seriously flawed Supreme Court cases interpreting the First Amendment-

New York Times case, the Buckley case, and the Citizens United case-have conspired to flood the river of information with the corrupt spin that endangers democracy. These are the primary obstacles to cleansing the river of information of its contamination. Politicians, their donors, and the partisan media revel in these cases because they enable them to create, spread, and amplify corrupt spin with little fear of being held accountable for it. Without stiff penalties for pedaling corrupt spin, politicians and special interest groups will continue to contaminate the river of information relied upon by voters.

In the New York Times case, a public figure brought a defamation lawsuit against the New York Times in which it was proven that he was defamed. The Court nevertheless ruled against the public figure because it found that he failed to prove that the defamatory information was published with actual malice. To prove actual malice, the Court held that the public figure must prove that the New York Times either (1) knew that the defamatory information was false or (2) published it in reckless disregard of its truthfulness.

By forcing a victim of defamation to go to the time and expense to prove that the defaming party either knew that the defamatory information was false or acted in reckless disregard of its truth invites a defaming party to be careless in verifying the accuracy of the information before spreading it. Setting a low standard for verifying the accuracy of defamatory information opens the door to sloppy journalism that both harms innocent victims and causes the media to lose credibility among the general public.

The New York Times case has been rationalized by arguing that in public affairs, and politics in particular, the public should have access to as much information as possible about public figures and the issues of the day. Public figures include politicians, governmental officials, and celebrities of all kinds. As a practical matter, only the extremely wealthy and well-connected have the resources to take on the media and prove actual malice. If all public figures had resources equal to the media, it might be a fair fight between the media and public figures, but that’s hardly ever the case.

The notion that more information ensures a more informed electorate has surface appeal, but it has to be balanced against the risk that much of the information may be corrupt spin. Confusing voters with corrupt spin ensures a misinformed electorate, and a misinformed electorate is almost certain to make a fatal error when confronted with an election involving an existential issue that threatens the survival of democracy.

The Effect of Imposing the Actual Malice Standard

In the misplaced spirit of promoting a robust, free-wheeling political debate among the public at large, the New York Times case reduced the risk to the media of its being held liable for defamation. Reducing the risk for contaminating the river of information with corrupt spin has no doubt led to more. Given this reduced risk, some in the media have pushed the envelope by not taking much care before publishing corrupt spin, particularly if it is appealing to their audience. Regrettably, many voters who form their beliefs based on ignorance and bigotry can cite corrupt spin as confirmation that their beliefs are valid.

The best way to challenge ignorant and bigoted beliefs is to confront them with controverting facts. By easing the injection of more corrupt spin into the river of information, the actual malice shield has made it many times more difficult for voters to come to fact-based, reasoned beliefs, the opposite of what was intended.

J.S. Mill, in his essay On Liberty, championed the notion that the best path to the truth lay in welcoming all ideas into a free and open marketplace accessible to all and letting everyone criticize each other’s ideas. Out of that process, Mill, and others have reasoned, truth would most likely emerge. If the marketplace of ideas was confined to scientists exploring a scientific issue in an honest quest for an objectively verifiable truth, then the marketplace of ideas would be the best place to find the best possible version of truth.

Politics, however, is a world apart from the world of science. Politicians and their supporters aren’t scientists engaged in an honest inquiry to discover the best possible version of an objectively verifiable fact, instead they’re interested only in winning. The attitude of most politicians regarding elections is best summed up by Vince Lombardi’s time-honored admonition, “Winning isn’t everything, it’s the only thing.”

If the only thing many politicians, their supporters, and their aligned media care about is winning, then the truth no longer matters. To win, many of them will be willing to do and say whatever they think will get the job done, and the truth be damned. There were already plenty of incentives for many in the political arena to keep the truth out of campaigns, but the Supreme Court in the New York Times case, instead of recognizing the risk of corrupt spin, added fuel to the fire by making is less risky to publish it.

Consequently, instead of facts in politics being taken from a marketplace of honest facts, “facts” in politics are being taken from a contaminated river of information.

Wealthy Donors’ Amplification of False Corrupt Spin

As if removing many obstacles to the origination and spreading of false facts wasn’t bad enough, the Supreme Court in the Buckley case and the Citizens United case, taken together, has invented a new First Amendment right for the wealthy and well-connected: The power to use their wealth and power to spread and amplify their version of corrupt spin. Given this invented right, wealthy pushers of their version of corrupt spin can now drown out counter-narratives.

First, in the Buckley case, the Supreme Court held that Congress was forbidden from limiting either the amount of election campaign expenditures for any candidate or the amount that an individual could spend on expressing their political views. Second, the Citizens United case held that Congress was forbidden from limiting the amount that organized partisan advocates (OPAs), authorized under federal campaign finance laws, such as connected PACs, non-connected PACs, leadership PACs, super PACs, hybrid PACs, labor associations, trade organization associations, and other similar organizations, could spend on political campaigns as long as such expenditures were independent from the control of any candidate’s campaign.

The purpose of OPAs was to establish a legal framework to enable donors to make legal contributions to candidates and campaigns, largely for the convenience of candidates and their donors. As permitted by law, OPAs are organized, run, and financed primarily by those individuals and organizations with wealth and power and have as their goal electing a government that will serve their interests. OPAs aren’t created to educate voters; instead, they’re organized for the purpose of persuading voters to vote for their candidates and causes.

These cases have opened the floodgates full bore for wealthy and powerful individuals and OPAs to spend whatever they want to amplify their propaganda. The only legal limitation on what an individual or OPA can say or publish in a political campaign is a lawsuit for defamation.

Unless a public figure sues and successfully proves actual malice in a defamation case, individuals and OPAs can say and publish as much corrupt spin as they dare. With no limits on what can be spent, the wealthy have been given the unrestrained power to drown out the competition with their version of corrupt spin. If the goal of the First Amendment was to provide a more and better-informed electorate, then, as interpreted by the Supreme Court, it has failed miserably.

Textualists, Originalists and the Truth in Elections Law

Today’s Supreme Court is dominated by those claiming to be textualists and/or originalists who argue that the Constitution should be strictly interpreted based on its best guess of the plain meaning of its text as originally written.

The First Amendment says that Congress shall make no law “abridging” the freedom of “speech” or the “press” and nothing else on the topic.

The dictionary definition of “abridging” is to shorten, and since 1791, it has never been interpreted to extend First Amendment protection to those who defraud victims either in commercial transactions or from defamation.

The dictionary definition of “speech” is a human talking, and there’s no indication that the dictionary definition today is any different than in 1791.

The dictionary definition of “press” includes printed newspapers, magazines, flyers, brochures, books, and other similar written documents, but today the dictionary definition includes the electronic press, which didn’t exist in 1791.

Over the last 200-plus years, “speech” has been interpreted by the Supreme Court to include both expression and money used to amplify expression, and the “press” has been interpreted to include the electronic press which amplifies the printed press. Before the NY Times case, defamation law under the First Amendment was subject to state defamation laws that didn’t require proof of actual malice.

The evolution of the meaning of these words is the result of the Supreme Court’s judgment that the times demanded it. In doing this, it wasn’t bound by either textualism or originalism. The Supreme Court achieved its goal by inventing legal devices to rationalize it. Even today’s textualist and originalist didn’t pay much, if any, attention to the 1791 meaning of the wording of the First Amendment when they invented a set of rights for PACs in the Citizens United case. The originalists gave little, if any, weight to the fact that PACs weren’t even dreamed of in 1791.

All of this adds up to well-meaning(?) but naïve(?) courts having inadvertently(?) subjected voters to a seriously contaminated river of information. The Supreme Court’s invention of new First Amendment rights that enable the wealthy and well-connected to spread unlimited corrupt spin has left voters with a flood of corrupt spin from which they must pick and choose what to believe.

The Supreme Court could easily, if it wishes, uphold a “truth in elections law,” as a case of first impression, by holding that voters’ rights to the truth override the right of any person to originate and spread corrupt spin. No injustice to the wording of the First Amendment would be done by preferring the right of voters to the truth in elections over the right of originators and spreaders of corrupt spin to pollute the river of information relied upon by voters.

One Man, One Vote, One Sad Myth

Under the Constitution, all citizens, rich and poor alike, are entitled only to one vote. While the poorest voters having the same one vote as the richest voters sounds great, it overlooks the reality that elections are won or lost based on the ability of the competitors to persuade a majority of voters to support their cause. In the contest to persuade, whoever has the most money to originate and spread their version of corrupt spin has a huge, if not, decisive advantage.

The First Amendment, as interpreted by the Supreme Court, has all but guaranteed that the power of the wealthy to originate and spread corrupt spin has enabled them to wield political influence many times beyond their voting numbers. As in other aspects of life, it pays in politics to be wealthy.

Given the current state of affairs under the First Amendment, voters might well ask if anything can be done to make campaigns turn on fact rather than corrupt spin.

What Can Be Done to Restore Democracy

Under existing First Amendment law, voters have no legal right to insist on political campaigns being factual. Voters are left to their own devices to decide who and what to believe. Congress could, however, create an express legal right for groups of voters to penalize through civil penalties those who originate and spread corrupt spin in political campaigns.

The courts have long held that the First Amendment doesn’t shield those who defraud victims in commercial transactions from liability, criminal and civil. For example, the antifraud provisions of the securities laws make sellers of securities who defraud investors by making false and misleading statements in connection with the sale of a security liable, both civilly and criminally.

Just as honest capital markets are essential for America to have a healthy and prosperous economy, honest political campaigns are essential for America to have a healthy politics capable of producing sound policy. Just as investors have the right to seek recourse under law against those who defraud them in securities transactions, voters should have the right to seek recourse under law against those who defraud them in campaigns.

In a democracy, one would think that voters should be treated at least as well as politicians and their ideologically aligned wealthy individuals, OPAs, and media, but they aren’t. Regarding the rights of voters relative to politicians and their supporters, both the Supreme Court and Congress have taken the W. C. Field’s approach to the matter, “Never Give a Sucker (a voter) an Even Break.”

Although the Supreme Court has, in effect, empowered wealthy individuals, OPAs, and the media to originate and spread corrupt spin, it has never held that voters have the legal right to civilly punish pushers of corrupt spin. And, although Congress has, in effect, enacted campaign finance laws that empower wealthy individuals and OPAs to donate unlimited dollars to their candidates and causes to enable them to push corrupt spin, it has done nothing to give voters a right to protect themselves from it. Congress should authorize the creation of voter action committees, VACs, to offset the influence of PACs.

In the interest of saving democracy and giving the voters an even break, (1) Congress should enact a “truth in elections law” that gives organized groups of voters, VACs, the power to civilly punish pushers of corrupt spin and (2) the Supreme Court should refrain from emasculating it with high-sounding legal sophistry.

As an evidentiary foundation to enacting a truth in elections law, Congress should hold an extensive public hearing to document the corrupt spin that pollutes elections. Based on the evidence developed in that hearing, Congress should make a finding that voters, acting through VACs, have a right to have truthful campaigns and this right should take precedence over both (1) the right of candidates to raise money to enable them to say and spread corrupt spin in their campaigns and (2) the right of donors to contribute to campaigns.

The purpose of this law isn’t to criminally punish violators, but only to ensure that voters have campaigns free of corrupt spin. To keep this law out of partisan politics, VACs, not government agencies, should have the sole responsibility for enforcing it.

Here are some of the most important provisions of the proposed law:

Just as politicians and their supporters can organize PACs to facilitate political fundraising, voters should be empowered to organize non-partisan VACs to protect their interest in having truthful elections.
VACs should be empowered to accept contributions from individual voters and non-partisan organizations but not political parties or partisan organizations, have legal standing in court, and take whatever legal action is necessary or appropriate to seek and enforce civil remedies against any person who violates the law.
A violation of the law should include the origination or spreading of a false or misleading statement that purports to be fact by any person in connection with a federal election or related primary; provided that, there shall be no intent requirement to establish a violation.
A special election fraud court should be created with exclusive jurisdiction to administer the law which court should be composed of the senior active judge (in terms of seniority) from each of the twelve circuits subject to the condition that at any time no more than six judges may have been appointed by a president of the same political party.
The special court should hear and rule on all claims filed by VACs within no more than 15 days after the filing of a verified petition alleging a violation.
A verified petition must contain a sworn statement to the effect that (1) the VAC has provided the alleged violator with a sworn statement explaining in reasonable detail the nature of the violation and (2) the alleged violator has not acknowledged the violation and published a retraction.
Appeals from the final decisions of the special election fraud court may be made to the Supreme Court which must rule on such appeals within 15 days from the date briefs are filed.
In any action brought under the proposed law, truth shall be an absolute defense.

An Imperfect Law As the Best Bet to Improve Elections

If the “truth in elections law” were to be enacted, many would argue that it would have a chilling effect on political speech, a fair complaint. There can be no doubt that the law would prevent some from originating and spreading certain truthful statements for fear that they couldn’t prove them to be true and would pay a steep price if they weren’t true. There also can be no doubt that the law would prevent many who otherwise would originate and spread corrupt spin from doing so because of the fear of paying a steep price.

For a democracy to survive the test of time, its voters must make the right decisions enough of the time to ensure a sufficiently stable, prosperous, and harmonious society to prevent it from self-destructing. A well-informed electorate is democracy’s best hope for, but no guarantee of, its survival. Any chilling effect attributable to the enactment of the “truth in elections law” would be offset many times over because of the cleansing of campaigns of corrupt spin.

Despite an imperfect electorate and campaigns inundated with corrupt spin, American democracy has survived, with the aid of a lot of luck. The best explanation of how America’s democracy has made it this long is offered by Otto von Bismarck, among history’s foremost experts on politics, in his observation that “God has a special providence for fools, drunks, and the United States of America.”

America’s electorate has tempted fate for the last 200-plus years, and at some point its luck may well run out. Now is the time to try to save it.