Free Speech First Amendment Blocks Government from Punishing False Statements

The commentary quoted below defines “deepfakes” as “apparently real images or videos that show people doing or saying things they never did or said.” For the government to punish false statements, the government would first have to establish which statements are true and which are false. The Supreme Court has ruled that if it did so, the government would be violating free speech, which is protected by the First Amendment of the Constitution. Cass Sunstein, who wrote the commentary below, is a well-respected legal scholar who served as Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration.

(p. C3) Can deepfakes, as such, be prohibited under American law? Almost certainly not. In U.S. v. Alvarez, decided in 2012, a badly divided Supreme Court held that the First Amendment prohibits the government from regulating speech simply because it is a lie.   . . .   The plurality opinion declared that “permitting the government to decree this speech to be a criminal offense…would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle…. Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.”

For the full commentary, see:

Cass R. Sunstein. “Can the Government Regulate Deepfakes?” The Wall Street Journal (Saturday, Jan. 9, 2021): C3.

(Note: the first ellipsis is added; the second and third are in the original.)

(Note: the online version of the commentary has the date January 7, 2021, and has the same title as the print version.)

Cass Sunstein’s commentary is adapted from his book:

Sunstein, Cass R. Liars: Falsehoods and Free Speech in an Age of Deception. New York: Oxford University Press, 2021.

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