Knight First Amendment Institute
Helen Norton, Distrust, Negative First Amendment Theory, and the Regulation of Lies, 22-07 Knight First Amend. Inst. (Oct. 19, 2022), https://knightcolumbia.org/content/distrust-negative-first-amendment-theory-and-the-regulation-of-lies.
This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.
In my view, we engage in the principled application of negative theory when we invoke it in (the many) settings where the government may be self-interested, intolerant, or clumsy (if not incompetent, as can be the case where it draws malleable lines absent adequate information or expertise). Conversely, the government warrants greater trust in settings where its discretion is limited, where we don’t see evidence of its self-interested or intolerant motive, or where our experience leaves us even more distrustful of powerful and unrestrained private actors (since distrust is not only an inductive concept, but also a comparative concept).
This essay examines when and how negative theory valuably guides and constrains the government’s choice of regulatory target (like lies that inflict certain harms) and regulatory tool (like the content-neutral regulation of conditions that exacerbate lies’ power and spread), and also when and how negative theory warrants guardrails of its own to prevent the counterproductive inaction that often accompanies unbounded distrust.
Our assessments of the government’s motivations and competence are key to when negative theory does (or should do) more or less First Amendment work. To this end, I urge that we take care to explain when and why we fear some government actors more than others, and when and why we fear the government more than private actors (and vice versa). More specifically, the principled application of negative theory does not pretend that hard Free Speech Clause problems are easy by minimizing the harms of regulated lies nor by exaggerating the effectiveness of counterspeech in preventing those harms. And the principled application of negative theory identifies specific triggers for distrust (like evidence of the government’s untrustworthy motives, its incompetence, its unfair surprise, or its unbounded discretion)—and recognizes that negative theory should carry less force when those triggers are absent.
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