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4 - Election-Related Misinformation

Published online by Cambridge University Press:  07 August 2025

David L. Sloss
Affiliation:
Santa Clara University School of Law
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Summary

Chapter Four contends that the electronic amplification of false and misleading election-related claims poses a significant threat to American democracy. To address that threat, we urgently need government regulation of companies that provide electronic amplification services. However, the Supreme Court has created a body of First Amendment doctrine that places Congress in a constitutional straightjacket, making it almost impossible for Congress to enact the type of legislation that is urgently needed to protect our democracy. This chapter sketches the outlines of a proposed federal statute that would restrict the electronic amplification of election-related misinformation. It explains why any statute along those lines – indeed, any statute that might be moderately effective in protecting American democracy from the threat posed by the electronic amplification of misinformation – would almost certainly be deemed unconstitutional under the Court’s current First Amendment doctrine. Therefore, the Court must revise its First Amendment doctrine to help save American democracy.

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