Understanding the First Amendment: It's Limits and Potential in the Fight Against Misinformation

Abstract

The rise in political misinformation in recent years is concerning, particularly when it leads to real life consequences such as the events of January 6th, 2021. The question now is what can be done to increase the health of the media landscape. Any measures taken must be considered in the context of the protections for the freedom of speech and of the press outlined under the First Amendment of the United States Constitution. This amendment was shaped by suppression of dissenting opinions experienced under British rule, and lives in the American consciousness as an absolute protection against any restriction on the freedom of speech or the press. Yet, this is not the true history. From the Alien and Sedition Act of 1798, through the early 20th century, suppression of speech was common for those with less political power, particularly in wartime. In the late 20th century, a massive evolution in interpretation of the First Amendment led to more expansive First Amendment freedoms. While this change was positive in some respects, the move toward faith in absolute free speech has left the U.S unprepared for the current misinformation crisis. United States history, as reviewed in this paper, shows a pattern denying the most robust First Amendment protections to those without political or financial influence. Even in peacetime, Supreme Court interpretations of the First Amendment in crucial cases have favored the speech of conservatives, conspiracy theorists, and the wealthy interests behind ownership of news outlets at the expense of average citizens and the truth. The current legal and political climate requires understanding the complex and flawed history, through historical and legal analysis, of First Amendment protections in the United States. The historical failures to apply the First Amendment consistently to all parties makes a compelling argument for the need to balance the right of the people to express their dissent with the potential, and real harms of speech particularly through the evolution of social media and artificial intelligence. This paper argues that instead of seeking to impose hard limits on speech within the scope of the First Amendment, the path forward should take into account the previous mistakes made by trying to control public discourse and consider proactive legal measures to enhance protections and access to quality information.