OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Flagging Online Falsehoods

A remedy for foreign disinformation attacks



To redress the problem posed by the Russian use of Facebook and other online platforms to manipulate U.S. public opinion during the 2016 campaign, it is necessary that the remedial measures be both effective and protective of free speech.  While the Russian government itself has no First Amendment right to spread propaganda in the United States, it will be impossible to insulate America from all messaging with ties to foreign sources.


Consider the German political philosopher Jurgen Habermas. If Congress tried to ban publication of his works in the United States because he is a foreigner, that surely would violate the First Amendment.  Americans have a right to hear his views, or read his words, even though he is not a U.S. citizen.  And even if it could be argued that the dissemination of his ideas in America might influence the outcome of the next election, that premise would provide no more valid basis to suppress those ideas in order to prevent Americans from finding them persuasive.


On the contrary, Americans have the right—as they have always had—to be persuaded by foreign thinkers, whether Adam Smith (British), Karl Marx (German), or Alexis de Tocqueville (French).  Americans have no fear of foreign thought just because it emanates from abroad.


The internet does not change this.  Foreigners can choose to send political messages to Americans through Facebook or Twitter, rather than through newspapers and magazines.  If Congress tried to ban the Times of London from these shores, that would be no more valid than if Congress tried to ban The New York Times. This proposition is equally true with respect to the print and online version of either publication.


While Facebook and Twitter happen to be American companies, that makes no difference for First Amendment purposes.  If either were a foreign-owned firm but Americans chose to use it for sharing messages, these messages still would be protected in the same way as letters written by Americans to the editor of the Guardian or books by American authors published by foreign-owned presses (like the Hachette group) but distributed by domestic booksellers.


The problem with Russia’s use of online platforms was not its foreignness, but its falsity.  To be sure, foreigners—individuals and corporations as well as governments—may be barred from engaging in express advocacy for or against the election of an American candidate (“Vote for Smith,” “Vote against Jones,” and the functional equivalent of such express electioneering).  That’s because foreigners are not American members of “our national political community” (to quote the relevant court decision on this point) and can be barred from participating directly in America’s elections. 


But much of the messaging that apparently came from Russian sources did not involve direct electioneering.  Instead, it involved political topics in general—race relations, immigration, gun regulation, and so forth—rather than the election of candidates.  While these messages were intended to affect election outcomes, that alone doesn’t make them electioneering for First Amendment purposes.  If these generally political, but not specifically electoral, messages were sent by Americans, and if they were not demonstrably false, then they would be fully protected by the First Amendment.  It would not matter their point of view: for gun control or against, pro-choice or pro-life, liberal or conservative, or whatever.  This would be so whether these political messages were in print or online.  And if it turned out that the same generally political, but not specifically electoral, message had a foreign rather than American author, that fact alone would not change the message’s protection under the First Amendment.


What matters for First Amendment purposes is whether or not the message is a demonstrably false statement of fact.  If it is, it has a very different First Amendment status than if it is either a true factual assertion or an expression of opinion not purporting to assert a fact.   Yes, the Supreme Court has made clear that an utterance does not lose all First Amendment protection just because it is a false statement of fact.  Congress, for example, cannot criminalize lying about whether one is a Medal of Honor recipient just because Congress wants to punish this outrageous lie.  But preventing Congress from criminalizing false speech without a specific pressing need for doing so does not mean that Congress has no tools to combat deliberate falsehoods designed to influence American elections.


One possible tool at Congress’s disposal would be to require Facebook, Twitter, and other online platforms to provide better ways for users of these platforms to challenge a posted message as false.  Although both Facebook and Twitter enable users to “report” objectionable content, these “reports” are not publicly displayed in the same way that “likes” or “retweets” are.  Facebook does permit a user to affix an “angry face” icon next to a message, but that is not the same as questioning the message’s factual veracity or labeling it as outright false.


Suppose Facebook and Twitter permitted users to click a “???” icon next to messages that they either doubted or disputed, with the number of times this “???” icon has been clicked displayed right underneath the message (in the same way that the number of “likes” currently is displayed).  This addition to each site would alert users that others viewed the message as dubious or untrue.  Moreover, whenever a message received a certain number of these “???” clicks, Facebook or Twitter could be required to investigate the veracity of the message and, if finding it to be demonstrably false, could be required to post its own warning: “False!”, with links to the underlying documentation of its falsity.  If Facebook or Twitter failed to affix this “False!” label to a demonstrably false message, an aggrieved party could have a statutory right to a court order requiring the online platform to remedy this lapse.  In the context of an election campaign, a candidate would qualify as an aggrieved party based on a showing that the false message potentially could affect the election even if the message’s content was not specifically electioneering.  (To the extent that Facebook, Twitter and other online platforms adopted this kind of new regime, their doing so would obviate the need for detailed congressional regulation on this point.  Most beneficial would be for Congress and these firms to cooperate to develop regulatory practices that would best facilitate the ability to warn viewers about online falsehoods.)


Decades ago, the Supreme Court rejected the proposition that a newspaper could be required to give a candidate the right to reply in the paper itself to an editorial critical of the candidate.  But the proposed right of rebuttal in that case was not limited to false statements; rather, it was triggered by any criticism of the politician, however much true or a matter of opinion.  That proposed interference with the newspaper’s editorial prerogative was inconsistent with First Amendment freedom.  Requiring online platforms to provide a better way to challenge demonstrably false messages on their sites would be an altogether different, and much more narrowly tailored, response to the spreading of pernicious falsehoods than would obliging newspapers to provide all politicians a general right of reply.


A well-designed system of this type would deter a repeat of what happened in 2016.  All messages, whether or not obviously from Russian (or other foreign) sources, could be flagged as “???” or “False!”, thereby minimizing the risk of Americans being duped by them.  While theoretically the system might be confined to only obviously foreign-sourced messages, that limitation would be a mistake.  Russia or other malevolent nation-states (like North Korea) can be sophisticated in making their messages look like they have American authors. Facebook and Twitter will not be able to police all the innocuous-sounding entities, like “Americans for a Better America”, to determine whether they are Russian (or other foreign) agents in disguise.  It is much easier just to look at the content of the message and make a determination whether or not it is demonstrably false.  


Similarly, it would be a mistake to limit this new flagging mechanism to paid advertisements on the online platforms.  Much of Russia’s pernicious misuse of Facebook involved not paid ads, but rather unpaid ordinary messaging (what the online platforms call “organic” content).  Any new measures, to be effective, must extend to falsehoods in the form of unpaid, as well as paid, online messaging.  (So far, Facebook’s efforts at self-regulation seem focused solely on paid content, and would impose new rules on political messages regardless of whether they are false, true, or opinion.  In this respect, Facebook seems to be missing the key point of what is at stake in responding to the kind of disinformation campaign that Russia apparently waged last year.)


Moreover, Americans deserve a measure of protection from domestic, as well as foreign, disinformation.  Even if this disinformation cannot be criminalized, it can be flagged when demonstrably false.  The flagging is a form of “counterspeech,” which is the appropriate First Amendment remedy for the dissemination of falsehood.  Both domestic and foreign falsehoods deserve to be flagged in this way, so that American voters can best judge for themselves what online messaging to believe. 


Just as Americans have the right to receive truths and opinions from foreign and domestic sources, so are they entitled to an equal level of protection from foreign and domestic fabrications designed to subvert the free exchange of ideas.  The best protection against another Russian disinformation attack is a system that adequately protects against disinformation attacks from any source.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...