At the core of the American experiment lies a fundamental belief in a marketplace of ideas. Though unpopular in some cases, the freedom of speech encourages an exchange of perspectives unabashed by governmental restriction. However, questions about the existing boundaries around free speech arise in concurrence with the spread of dangerous misinformation online, given the potential for grave individual harm. Despite concerns about the growing value placed on false information and the federal government’s role in combating misinformation, federal courts have faced off against the Biden administration, restricting the federal government from policing misinformation. With the enhanced value of freedom of speech in American culture comes a reluctance to define the boundaries of what can and cannot be protected speech, preventing the government from acting in the best interests of public safety, and prioritizing the ideas of free speech over the value of human life.

The discussion over the boundaries of free speech dominates the American historical record, with notable precedent narrowly defining boundaries for government regulation of speech. The First Amendment and its freedom of speech clause only clarifies that Congress shall make no law “abridging the freedom of speech.” With the fate of free speech resting on a meager five words, it is not surprising that the Supreme Court remains reluctant to narrow the scope further, providing a few limits to include defamation, fraud, political advertisements, and broadcast speech. Regardless of these limited boundaries, the Supreme Court historically prioritizes the protection of a few false ideas and false factual statements. In New York Times v. Sullivan (1964) Justice Brennan asserted against the idea that showing statements are false is enough. According to Brennan, the accuser must instead prove that false statements were made with the knowledge and reckless disregard for its inaccuracy. While a landmark in the media’s ability to scrutinize public officials, the legacy of Sullivan narrows the state’s ability to regulate false statements. However, since 1964, the Supreme Court has signaled an openness to the discussion of speech regulation within its internal division in United States v. Alvarez (2012). Though the majority of the court asserted against restrictions on falsifying speech under strict scrutiny, the justices disagreed on the level of scrutiny used in ruling on false statements. Justice Stephen G. Breyer and Justice Elena Kagan considered the possibility of adjudicating false speech under intermediate scrutiny, rather than strict scrutiny, if regulations prevent “a subset of lies where specific harm is more likely to occur.” Thus, setting the stage for possible consideration of false speech regulation in matters of dire public need.

Dangerous public health misinformation is not a new phenomenon. In 1998, claims circulated on the link between the MMR vaccine and autism in children. The false claims caused heightened hesitancy in public willingness to get their children vaccinated. The conclusions drawn from the published paper proved false and vanished from popular literature. Yet, the damage was done. According to data collected in 2019, 85% of the 649 measles cases of the year were linked to unvaccinated individuals. A more recent example concerns the widespread misinformation on the COVID-19 vaccine, an increasingly polarized subject matter. According to a study analyzing COVID-19 misinformation on Twitter, of 1500 analyzed tweets related to COVID-19, 1274 proved to be patently false. There was an additional correlation between the speed of misinformation spreading and verified Twitter handles reposting the misinformation. With 53.6% of the global population estimated to be on social media sites like Twitter (now X) the impressive speed and prevalence of misinformation prove insidious. In instances such as the false assertion of hydroxychloroquine – a malaria treatment – as an antidote to the COVID-19 virus that gained traction on social media, 15 individuals died due to the consumption of the toxic disinfectant. Unchecked false information available to the public proves both misinformed and deadly, emphasizing the dire need for regulation of information responsible for the death of American citizens.

There is no doubt freedom of speech is one of the pillars of American democracy. However, when philosophical idealization of the marketplace overrides a public safety crisis, the pedestal that freedom of speech rests upon calls for scrutiny. Many critics of misinformation regulation defend the use of “counterspeech,” positing that through counteracting false ideas with true ones, truthful ideas will prevail. While this logic may be reasonable in theory, it ignores the reality that social media regularly platforms false ideas and statements with few legal checkmarks ensuring the “best” ideas take precedence. With so many enclaves within the digital realm, it is nearly impossible to understand which ideas are being platformed in certain spaces. 

Yet, in no way am I advocating for the regulation of “unpopular” ideas. In truth, the presence of unpopular opinions adds to diverse discussions and encourages individual discovery; however, when the spread of public health misinformation links to the deaths of numerous Americans, narrow scrutiny must be applied. The legal system cannot continue to favor its idolatry of free speech over the deaths and injuries of its inhabitants.