Abstract
Americans have worried about foreign influence over domestic political affairs since the United States was founded. Today, those concerns have resulted in calls for restrictions on Americans’ rights, including the right to access political speech. Efforts to prevent restrictions on expression motivated by foreign influence have focused primarily on the ineffectiveness of propaganda at changing political views or behavior—and, accordingly, that such censorship is antithetical to free speech’s truth-seeking and democratic self-governance functions. I argue in this essay that these arguments, while correct, are incomplete because they fail to fully account for the importance of free speech in promoting individual dignity and autonomy. However, recognizing these moral values is critical to ensuring that First Amendment analyses of government attempts to combat foreign influence adequately account for regulated individuals’ interests. And they have important implications for resisting non-governmental censorship, as well.
I. Introduction
Americans have worried about foreign influence on our domestic political processes since the United States was founded. In Federalist No. 68, Alexander Hamilton explained that the Constitution was intended to guard against “foreign powers” who sought “to gain an improper ascendant in our councils” through “cabal, intrigue, and corruption.” In a letter to Thomas Jefferson, John Adams reported that he shared Jefferson’s “apprehensi[on] of foreign Interference, Intrigue, [and] Influence;” evils which Adams predicted would recur “as often as Elections happen.” In his “farewell address” announcing his decision not to seek a third term as president, George Washington warned that “Against the insidious wiles of foreign influence . . . the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”
Nor were these baseless fears, as the events of the last decade alone have demonstrated. For instance, Special Counsel Robert S. Mueller’s comprehensive Report on the Investigation into Russian Interference in the 2016 Presidential Election noted that Russia had “conducted social media operations targeted at large U.S. audiences with the goal of sowing discord in the U.S. political system.” The Office of the Director of National Intelligence (ODNI) reports that rival nations such as China, Russia, and Iran “continue to conduct malign influence operations . . . to undermine U.S. political processes and amplify discord.” Even U.S. allies such as Israel have attempted to influence lawmakers and the American public using fake social media profiles.
But while foreign nations do try to influence U.S. politics, excessive fear of these efforts has motivated some of our nation’s most notorious censorship campaigns and surveillance abuses. Anxieties about foreign interference in domestic political affairs inspired the Alien and Sedition Acts of 1798, the Palmer Raids targeting suspected Communists during the first Red Scare following the First World War, and the illegal surveillance of civil rights leaders and members of the anti-war movement under an FBI domestic spying program commonly known as COINTELPRO.
Nor are restrictions of Americans’ rights motivated by foreign influence strictly a problem of the past. In recent years, concerns about Russian interference in the 2016 election led the FBI to open an investigation into Carter Page, an advisor to Donald Trump; the agency’s applications to surveil Page were marred by serious errors and omissions that called into question whether the surveillance should have been approved. In late 2023, Chairman of the House Permanent Select Committee on Intelligence Mike Turner told congressional staffers that Section 702 of the Foreign Intelligence Surveillance Act—a controversial authority that allows government agencies to obtain and review Americans’ private communications without a warrant —was needed to help surveil pro-Palestinian protestors to determine whether they were connected to Hamas. Last year, Congress, concerned in part that the People’s Republic of China could use its influence over TikTok to push divisive content to American users, passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which could require ByteDance, TikTok’s parent company, to sell the app.
Efforts to counteract foreign influence through censorship have met significant resistance from defenders of civil liberties, who rightly note that recent efforts by rival states to influence our domestic political processes using speech have been largely ineffective—and that the government is ill-positioned to distinguish between foreign influence campaigns and other speech. But while these arguments are correct, they give primacy to the impact of censorship motivated by foreign influence on free speech’s role in advancing the search for truth and democratic self-governance. They are, therefore, incomplete because they do not adequately account for other values that free speech rights advance.
In this essay, I argue that two other First Amendment values—human dignity and autonomy—are crucial aspects of the argument against censorship motivated by foreign influence. Because current assessments of such censorship do not adequately account for these values, they are unduly weighted in favor of restricting speech. Consideration of these values is particularly important because it can help persuade judges, private companies, and the public that censorship is not the appropriate reaction to foreign propaganda efforts.
II. Foreign Influence
While concerns about foreign influence are old, new technologies have made it substantially easier for rival nations to attempt to interfere with domestic politics. In this part, I provide a brief overview of contemporary foreign influence techniques, with a particular focus on foreign governments’ attempts to spread propaganda using fake social media profiles and news sites, as well as the approaches that have been developed for combatting this strategy.
What is foreign influence?
The term “foreign influence” (sometimes also called “foreign malign influence” or “malign foreign influence”) refers to a range of actions taken by foreign governments aiming to manipulate U.S. political processes. Definitions of the term are correspondingly broad. In establishing ODNI’s Foreign Malign Influence Center, Congress defined “foreign malign influence” as:
[A]ny hostile effort undertaken by, at the direction of, or on behalf of or with the substantial support of, the government of [certain rival nations] with the objective of influencing, through overt or covert means—
(A) the political, military, economic, or other policies or activities of the United States Government or State or local governments, including any election within the United States; or
(B) the public opinion within the United States.
The FBI’s definition of “foreign influence operations” is even more expansive; it says the term “include[s] covert actions by foreign governments to influence U.S. political sentiment or public discourse,” the goal of which “is to spread disinformation, sow discord, and, ultimately, undermine confidence in our democratic institutions and values.” The Cybersecurity and Infrastructure Security Agency, a Department of Homeland Security agency responsible for, among other things, securing America’s elections, similarly warns that “[m]alicious actors use influence operations, including tactics like misinformation, disinformation, and malinformation . . . to shape public opinion, undermine trust, amplify division, and sow discord,” hoping to “bias the development of policy and undermine the security of the U.S. and our allies, disrupt markets, and foment unrest.”
These definitions are capacious in part because of the wide variety of influence techniques foreign governments employ, as three Department of Justice prosecutions that were made public in September of 2024 help demonstrate. At the beginning of that month, the government unsealed an indictment against two employees of a Russian state media organization, accusing them of illegally financing and providing editorial direction to a U.S.-based media company. On September 26, the government unsealed two more foreign influence indictments. One charged New York City Mayor Eric Adams with accepting myriad bribes from a variety of sources, including a Turkish government official. The other alleged that three employees of Iran’s Islamic Revolutionary Guard Corps successfully hacked the email accounts of individuals associated with President Donald Trump’s 2024 campaign.
Perhaps the most notorious form of online foreign influence today is the use of fake social media profiles and news sites to share propaganda intended to stoke division and shape political behavior. Russia’s “active measures” campaign targeting the 2016 presidential election is an illustrative example. Using a complex network of official state media, unattributed websites, and false social media accounts that purported to be Americans and U.S.-based political groups, Russia sought to stoke discord and support Donald Trump’s and Senator Bernie Sanders’ presidential campaigns. Russian officials, pretending to be Americans, made tens of thousands of social media posts, which were then amplified by a network of automated “bot” accounts; tens of millions of people inside the United States are believed to have viewed these posts. While these efforts may seem significant, they represent a vanishingly small fraction of the overall online activity associated with the 2016 election, and they appear to have had virtually no impact on the beliefs or voting behavior of the people exposed to them.
Both public and private entities identified similar efforts by rival nations to influence the 2024 election using social media. The intelligence community’s 2024 Annual Threat Assessment, for instance, warned that China, Iran, and Russia would seek to “sow doubts about U.S. leadership, undermine democracy, and extend [their] influence” through social media messaging, targeted hacking, and financing academics and think tanks. Of particular concern to the IC was the risk that rival nations could use emerging technologies such as generative AI “to improve their capabilities [to] reach . . . Western audiences.” Microsoft identified efforts by these three countries to spread political propaganda, sometimes including AI-generated content, using fake social media accounts and news websites. And in early September, the Justice Department seized 32 internet domains, disguised as legitimate news sites, that it alleged the Russian government used to covertly spread propaganda. While rival nations’ efforts to influence the 2024 election “failed to achieve measurable results,” this was certainly not for lack of effort.
This essay focuses on the First Amendment concerns raised by efforts to combat online foreign influence activities using fake social media profiles and news sites, which are particularly acute given the risk that they will inhibit free speech. This is true for three reasons. First, other foreign influence techniques involve acts that are straightforwardly criminal in any context, such as money laundering, bribery, and hacking. In contrast, spreading propaganda in ways that conceal its source is pure speech that, while potentially criminal, would be protected by the First Amendment in other circumstances. Second, as discussed in greater detail below, people inside the United States have a First Amendment right to receive foreign propaganda. While the government may lawfully require disclosure of the foreign government’s involvement in creating informational materials, restrictions on access to such information substantially burden listeners’ rights. Finally, because disguised foreign propaganda is often intended to promote existing societal divisions, overbroad efforts to combat foreign influence through censorship risk placing significant burdens on constitutionally protected domestic political speech, either because such speech will itself be censored or because speakers, knowing what they say could be monitored, may decide to keep silent.
Strategies for combatting foreign influence
The federal government has not allowed online foreign influence operations to proceed unchecked. It has used a range of existing authorities to combat online foreign influence, including indicting individuals and organizations responsible for covertly sharing foreign propaganda, informing social media companies of alleged foreign influence information on their sites, seizing web domains, and even ordering social media companies to divest from popular applications. Meanwhile, scholars and advocates have argued for even more restrictive measures.
In 2018, Special Counsel Mueller announced an indictment against the Internet Research Agency (IRA), an organization that “engaged in political and electoral interference operations” on behalf of the Russian government, and several of its employees, charging them with conspiracy to defraud the United States for, among other things, failing to register as foreign agents under the Foreign Agents Registration Act (FARA). FARA requires individuals acting within the United States on behalf of a foreign power to register with the Justice Department and to clearly disclose when they are sharing “informational materials” (propaganda) on behalf of that power. Because the IRA and its employees had failed to satisfy these requirements, Mueller alleged, they had committed a crime.
While enforcing FARA against online foreign influence operations located outside of the United States is statutorily questionable, it is a constitutionally reasonable response that could help advance the First Amendment’s moral values. However, other executive branch actions are substantially more problematic. For example, it has become common practice for the FBI and other government agencies to contact social media companies to inform them of alleged foreign influence content on their sites. Such “jawboning,” as the practice is commonly called, is controversial because, depending on the circumstances, it could be seen as the government putting pressure on private companies to censor speech in violation of the First Amendment. Even if the social media platforms do not remove the speech, the knowledge that what they say could be monitored may chill some peoples’ expression.
Other techniques for countering online foreign influence are even more troubling. Between October 2020 and June 2021, the Justice Department seized 152 web domains, claiming the Iranian government used them as part of its online influence operations. (Several of the websites, it appears, actually belonged to Iranian dissidents, refugees, and religious minorities. ) In September 2024, the Justice Department did it again, this time seizing 32 domains it alleged were fronts for spreading Russian propaganda. These seizures create significant First Amendment concerns because they prevent people from exercising their constitutional right to access foreign propaganda.
Lawmakers, too, have sought to discourage, censor, or otherwise burden speech on the basis that it is foreign influence. Perhaps most significantly, in 2024, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act, which requires TikTok’s parent company, ByteDance, to divest from the popular social media application. In advocating for the law, legislators made clear that their motivation was, at least partially, to safeguard against the possibility that the PRC could use its influence over ByteDance to manipulate TikTok’s algorithm and spread propaganda. Such blatantly content-based motivations are highly suspect under the First Amendment.
However, some researchers view the government’s efforts to combat online foreign influence as insufficient and have proposed alternative solutions. Jonathan Schnader, for instance, has argued that the president should use his authority under the International Emergency Economic Powers Act (IEEPA) to impose criminal penalties on anyone who intentionally spreads false information on social media on behalf of a foreign government. Joshua Fattal has advocated for an expansion of FARA that would extend the Justice Department’s jurisdiction abroad and compel social media companies that host foreign propaganda to label it as such.
Other scholars have dared to dream bigger. Taking what he refers to as a “platform-utilities approach,” Professor Ganesh Sitaraman suggests that foreign social media platforms should be subject to broad regulation in recognition of the significant national security risks they can pose. Existing legal frameworks, such as IEEPA and the Committee on Foreign Investment in the United States review process, Professor Sitaraman says, are insufficient to assess the risks posed by applications such as TikTok. Instead, Congress and the president should create new rules that allow regulation (up to and including total bans) of all firms in a particular sector rather than assessing potential national security risks on a company-by-company basis. Professor Zephyr Teachout similarly argues that a forced sale of TikTok would be consistent with longstanding prohibitions on foreign ownership of critical infrastructure.
Ashley Nicolas, an attorney and former Army intelligence officer, takes a different approach. She argues that a “prohibition on the use of disinformation on social media” is on its way to becoming customary international law. The development of norms against using social media to interfere with the domestic affairs of other nations, Nicolas says, will prevent this practice as a matter of international law. In the meantime, she maintains that nations should attempt to negotiate binding treaties that would prevent online foreign influence activities.
The government and scholars have developed or advocated for a variety of strategies to combat online influence activities. Many of these strategies raise significant First Amendment concerns because of the heavy burden—or outright prohibition—they would place on speech. Significantly, however, their proponents maintain that restricting speech is necessary to advancing First Amendment values: They say that restrictions on foreign influence speech will aid the search for truth and safeguard democratic self-government.
III. Opposition to Censorship Motivated by Foreign Influence
While censorship is a popular response to the problem of foreign influence, many scholars, commentators, and activists have recognized that it is not the optimal approach. In large part because of the legal standards for determining whether a restriction on speech violates the First Amendment, they have resisted censorship motivated by foreign influence primarily on instrumentalist grounds: They do not believe that censorship is an effective means by which to combat the influence efforts of rival nations for two reasons: first, foreign influence efforts have not proven effective at changing Americans’ political behavior; and second, because it can be difficult to distinguish between foreign propaganda and purely domestic expression. In either event, they maintain that the minor benefit the government might gain from restricting speech does not merit the societal harms such restrictions impose.
As a threshold matter, it is true that foreign governments’ efforts to clandestinely spread propaganda online appear to be largely ineffective. Online foreign influence efforts related to the 2016 presidential election did not have “much more than a relatively minor influence on individual-level attitudes and voting behavior.” Researchers assess that during the 2024 election cycle, “foreign malign influence campaigns failed to achieve measurable results,” in part because “the U.S. government proved particularly effective and efficient” at responding to them via debunking and other strategies. The reasons for this lack of efficacy are complicated, but research suggests foreign influence efforts, which must compete with an extraordinary range of information (including false information) available online, are unlikely to be seen by many people, and will be convincing only to those who already agree with the underlying message. Moreover, there is evidence that outright prohibitions on online foreign propaganda are ineffective at changing peoples’ beliefs over the long term because other suppliers can quickly replace the banned sources.
Nor is it likely that changing technology will make foreign influence campaigns significantly more effective. According to researchers at Microsoft, three influence campaigns it has recently identified that use generative AI have had “limited to no impact.” Indeed, in a piece for the Knight Institute, Sayash Kapoor and Arvind Narayanan assess that because people “seek out and find information consistent with th[eir] views . . . . it will be extremely hard to convince out-group members of false information they don’t agree with, regardless of AI use.” Generative AI is also unlikely to substantially improve the quality of foreign influence material that is shared on social media; AI merely replicates existing techniques, such as photo alteration software or deceptive video editing, that are already cheaply and broadly available. For these reasons, changing technologies are unlikely to meaningfully alter the conclusion that foreign influence campaigns involving social media speech are largely ineffective at changing minds or altering voter behavior.
The dominant argument against restrictions on speech in the name of countering online foreign influence is that the government’s interests in restricting speech are not compelling because propaganda does not change beliefs or behavior and that restrictions are not sufficiently tailored. The uniformity with which those resisting censorship make this argument is unsurprising, given how deeply the values of truth-seeking and democratic self-government are embedded in our First Amendment jurisprudence. Time and again, the courts have reiterated the centrality of these values in assessing whether restrictions on speech are unconstitutional.
Indeed, concern with the marketplace of ideas and democratic self-governance was fundamental to the Supreme Court’s reasoning in Lamont v. Postmaster General, a case in which the Court considered the constitutionality of a statute placing limits on the Post Office’s ability to deliver “communist political propaganda.” The Court struck down the law as “an unconstitutional abridgment of the addressee’s First Amendment rights” because it required the putative recipients to inform the Post Office that they wanted the mail delivered. The statute was particularly concerning, the Court reasoned, because it would “have a deterrent effect” on access to speech, particularly for people who held “sensitive positions.” As such, the Court said, the statute was antithetical to the “‘uninhibited, robust, and wide-open’ debate and discussion . . . contemplated by the First Amendment.” In other words, the statute could limit the effectiveness of the marketplace of ideas and democratic self-governance.
In a concurring opinion, Justice William Brennan went further, explaining that the First Amendment must protect the right to receive information because “dissemination of ideas can accomplish nothing if otherwise willing [recipients] are not free to receive and consider them.” Indeed, Brennan averred, “[i]t would be a barren marketplace of ideas that had only sellers and no buyers.” Given this harm, he indicated, the government’s interest in suppressing the speech was not compelling enough to overcome the addressees’ right to receive it. In both opinions, the focus was on the degree to which restrictions on speech could harm the collective.
This focus on the societal benefits of robust expression rights animates much of the scholarship opposing censorship motivated by foreign influence online. For example, the Cato Institute’s John Samples has argued that the government should not mandate social media censorship of foreign influence efforts because there are less restrictive means of preventing subversion of our election processes that will be equally as effective. In most contexts, Samples notes, foreign governments are merely required to disclose their involvement in speech directed at U.S. political processes—restrictions that have proven sufficient to protect both lawmakers and the public. More fundamentally, Samples says, banning foreign influence speech from social media platforms is unnecessary because the influence efforts do not work. “There is little evidence that . . . Russian efforts [to influence the 2016 presidential election] had much effect on the American voters,” Samples writes, in part because Russia merely amplified existing societal divisions.
Similarly, researcher Gavin Wilde’s scholarship on foreign influence has emphasized the apparent limits on the ability of propagandists and others to change people’s minds or impact their behavior using speech alone. Social science, he says, “suggests that people are far less impressionable than presumed” and that “their views [are] much less moldable with any skill or reasonably expectation of success—by states or any other actors.” Indeed, Wilde argues, efforts to respond to foreign propaganda, absent evidence it actually works, will only serve to legitimate it. A far more effective strategy would be for governments to focus on ameliorating the political conditions that could make a person susceptible to foreign influence campaigns, such as a government that does not treat its citizens fairly or equally.
Commentators, too, have noted the relative ineffectiveness of foreign efforts to influence U.S. political processes using online speech. For example, in a recent article, Reason’s Matthew Petti noted that the IRA tried to influence the 2016 presidential election by “peddling low-quality content slop in broken English.” Similarly ineffective, Petti says, were Israel’s attempts to pressure members of Congress using fake social media profiles. Worse, the government also sometimes makes mistakes by incorrectly attributing speech to foreign rivals. Because “[f]oreign propaganda is probably an unavoidable part of living in a society with free speech,” Petti argues, government restrictions on speech are not the solution. Instead, we should resort to the marketplace of ideas: “[T]he best solution to bad speech is more speech.”
The marketplace of ideas and democratic self-governance objections to censorship motivated by foreign influence have been particularly prominent in the legal and public advocacy of First Amendment scholars and nonprofit groups opposing the forced sale of TikTok. In op-eds, blog posts, and amicus briefs, these advocates have repeatedly emphasized the degree to which a ban is unnecessary to achieving the government’s aims. For instance, in a filing with the U.S. Court of Appeals for the D.C. Circuit, a bevy of First Amendment scholars emphasized that while “China, Russia, and other foreign adversaries may very well be strenuously attempting to disrupt American political and social order by creating or amplifying social media content that serves their interests. . . . an attempt to sow discord, or fear of the same, is not a sufficient basis to violate free speech.” In their brief filed with the Supreme Court, the Foundation for Individual Rights in Education and other civil liberties groups argued that “[a] primary purpose of the Act is to banish disfavored viewpoints from the marketplace of ideas—a constitutionally infirm basis for regulating speech.” Writing for the Law and Political Economy Project,Professor Nikolas Guggenberger argued that we should not force the sale of the app because doing so would not stop foreign propaganda; it would merely “insert[] some friction into the propaganda machinery.” In Lawfare,Professor Jane Bambauer took another tack, observing that the PRC’s efforts to manipulate American political behavior through TikTok pose a “mostly illusory” threat because “[p]ropaganda does not work unless listeners want it to work. . . . Beliefs cannot be spun from thin air by a social media company.”
Scholars, advocates, and commentators have repeatedly emphasized that the government’s interest in restricting online foreign influence does not outweigh the harms to expression because the restrictions are unnecessary to safeguard the marketplace of ideas and democratic self-governance. Although these arguments against censorship motivated by foreign influence are correct and persuasive, they are incomplete.
IV. The Importance of Speech to the Individual
While it is true that censorship of foreign influence campaigns will not protect the marketplace of ideas or democratic self-governance, opposing speech restrictions primarily on these grounds leaves important moral arguments for free expression focused on the benefits of speech to the individual on the table. In this part, I explain what those arguments are and why they should be a part of efforts to restrict censorship motivated by foreign influence.
The immorality of censorship
In addition to the search for truth and democratic self-governance, there are several other theoretical justifications for why the First Amendment protects freedom of speech. Of particular importance—at least for this paper—are the individual values free speech advances: dignity and autonomy. As Justice Thurgood Marshall put it, “[t]he First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression.” In other words, freedom of expression is valuable in and of itself, irrespective of whether it serves some broader societal purpose, such as facilitating the search for truth.
The idea, as Professor Kent Greenawalt puts it, is that “[a]s a matter of basic human respect we may owe it to each other to listen to what each of us has to say, or at least not to foreclose the opportunity to speak and to listen.” Even more fundamentally, freedom of expression—people’s “definition and development of themselves”—is critical to understanding not just the limits of the government’s power to regulate but also the bounds of the people’s obligation to be bound by the law because “[o]bligation exists only in relationships of respect.” That autonomy (or dignity, self-realization, self-determination, or however else we might refer to it) is a constitutional value, and not just a moral one, is evident from an “[e]xamination of the ‘process’ values inherent in our nation’s adoption of a democratic system,” which “reveals an implicit belief in the worth of the individual.”
While the autonomy theory of free expression is frequently applied to the rights of speakers, it applies with equal (perhaps greater) force to the rights of the listener. As Frederick Douglass put it, suppressing speech is “a double wrong” that “violates the rights of the hearer as well as those of the speaker.” This is because freedom of speech allows the listener to “develop[] . . . reason” and “exercise . . . the powers of judgment and choice.” Restricting a listener’s access to information is condescending in the extreme because it treats the listener as someone incapable of accurately assessing the information and deciding what to do with it.
The immorality of restricting an individual’s ability to access information is particularly salient in the context of foreign influence. Because it is doubtful that the First Amendment applies extraterritorially to noncitizens, the government has much freer rein to suppress the political expression of foreign governments than it would to limit such speech domestically. Efforts to restrict censorship motivated by foreign influence on First Amendment grounds must, therefore, focus on whether such censorship violates the rights of American citizens or people located inside the United States. Crucially, the listener autonomy interests protected by the First Amendment do not depend on who the speaker is: The listener’s interest in “exercis[ing] the powers of judgment and choice” is the same regardless of whether the speaker is (for example) a foreign government or a domestic politician. As Professor Joseph Thai has put it, “if personal development may be shaped by individuals’ choices of what to consume from abroad, the First Amendment affords them those choices, for good or ill.”
Arguments that recognize the autonomy interests of Americans in receiving information from foreign governments also align with existing case law. As described above, the Supreme Court ruled in Lamont that the restriction on delivery of “foreign propaganda” violated the putative recipients’ First Amendment rights because it could chill them from accessing the information. In Meese v. Keene, the Court considered a First Amendment challenge to FARA’s labeling requirement. Noting that FARA merely required “the disseminators of [foreign propaganda] to make . . . disclosures that would better enable the public to evaluate the import of the [material,]” the Court ruled that the filing and disclosure requirements were constitutional. So while the Court has not tolerated limitations on the ability of U.S.-based listeners to receive information from foreign governments, it is willing to allow the government to compel speech from the creators and distributors of “foreign propaganda” to provide more information to listeners.
Indeed, it is important to emphasize that arguments against censorship intended to counter online foreign influence grounded in dignity and autonomy still allow for some regulation of clandestine propaganda efforts—even ones that are pure speech. For instance, FARA’s requirement that people acting within the United States who knowingly share propaganda on behalf of a foreign power disclose the material’s origin serves autonomy interests by providing the listener with more information. The point is simply that the government undermines the autonomy of its citizens when it decides for them what information they may not hear.
Why individual speech values matter
As described in Part III, efforts to resist censorship motivated by foreign influence are incomplete because they have given primacy to other free speech values. This matters because emphasizing human dignity and autonomy in opposing censorship motivated by foreign influence is not merely about abstract moral claims; it also has important practical benefits. First, it ensures that those resisting censorship are doing so on their own terms and not on the terms of the censors. Second, focusing on free expression’s role in protecting autonomy aligns with the founders’ natural rights justification for the First Amendment—something that could make censorship less palatable to originalist judges. Third, making the moral argument helps preserve a culture of free speech. Because constitutional law is often a lagging indicator of cultural values, this will help ensure courts continue to interpret the First Amendment to provide expansive protections for free expression. Finally, the moral argument may help persuade social media companies, which are motivated by profit and therefore concerned about damaging their brands, not to restrict speech in the name of combatting foreign influence.
Regarding the first point, those seeking to restrict speech as a means of combatting foreign influence campaigns will attempt to emphasize the dangers of such campaigns to the marketplace of ideas and democratic self-governance. In upholding the forced divestment of TikTok, for example, the D.C. Circuit explained that “the Act actually vindicates the values that undergird the First Amendment” because it prevents the PRC from manipulating public debate in the United States. While, for the reasons discussed above, opponents of censorship motivated by foreign influence have a strong basis for rebutting such arguments, focusing primarily on the societal benefits of free speech without recognizing its value to the individual means debating on the censors’ terms. This may particularly be the case when it comes to government attempts to restrict speech to counter foreign influence campaigns, which could be based on classified information.
With respect to the second point, a majority of the justices on the Supreme Court, and a significant number of judges in the lower federal and state courts, are originalists—that is, they believe that the Constitution’s meaning was ossified at the point of ratification or amendment. While the Court’s First Amendment cases have not generally used an originalist methodology, some judges have indicated they should. For example, Justice Clarence Thomas has repeatedly called for the Court to overturn New York Times Co. v. Sullivan, a case in which the Court held that the First Amendment restricts public officials’ ability to sue for alleged defamation and which Thomas believes is unsupported by the historical record. Justice Neil Gorsuch has raised similar questions about Sullivan. In a recent opinion, Sixth Circuit Judge Amul Thapar wrote that “history is vital to correctly interpreting” the First Amendment’s meaning in all respects because “the Free Speech and Press Clauses constitutionalized a historically defined right.”
Regardless of whether one views originalism as the appropriate mechanism for interpreting the Constitution, effective legal advocacy requires framing arguments in terms that will be palatable to the judges charged with evaluating them. Successfully resisting censorship, then, means explaining to originalist judges why the Constitution, as originally understood, prohibits the practice.
One of the challenges of using originalism to determine the meaning of the First Amendment is that there is significant disagreement as to what motivated the Amendment’s enactment. Indeed, this is a general problem for using originalism to interpret arcane constitutional provisions: To the extent evidence is available indicating what such a provision was intended or understood to mean, it will almost certainly be conflicting given the number of actors involved. This difficulty in identifying a unitary First Amendment value or set of First Amendment values may be why originalist judges tend to focus instead on whether particular practices (such as additional protections for libel or slander of government officials and public figures) were permitted at the founding.
Nevertheless, there is significant evidence that at the time the First Amendment was ratified, federal officials thought of speech as a “natural right”—a right inherent in our humanity over which the government had only limited authority. Indeed, at least some of the founders believed that free expression was a “liberty that could [not] be regulated to promote the public good.” There are good arguments that the right to receive information—such as foreign propaganda—should be protected against all intrusion under an originalist approach because the founders considered the right to freedom of opinion (and the corollary right to listen) inalienable. There is, therefore, a strong originalist case that censorship motivated by foreign influence is unconstitutional because it infringes on the natural right to free expression that many of the First Amendment’s framers and ratifiers intended to protect.
With respect to the third point, there is persuasive evidence that political culture strongly influences substantive decisions at the Supreme Court—or, at the very least, that the justices are guided by the political culture of the elites with whom they associate. As Judge Learned Hand put it, “[l]iberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” This is why Greg Lukianoff, president of the Foundation for Individual Rights and Expression, argues that “[f]ree speech culture is more important than the First Amendment” to safeguarding expression rights because “our legal freedoms will [not] survive if our free speech culture is undermined.”
There are troubling indications that cultural support for free expression is declining. A recent Pew survey indicates that in 2023, 55 percent of U.S. adults thought the government should restrict false information online, and 65 percent thought that tech companies should do the same. When Pew asked the same question in 2018, those numbers were 39 percent and 56 percent, respectively; in 2021, they were 48 percent and 59 percent. This trend is perhaps unsurprising, given the perception that our online environment is rife with false and misleading information. Indeed, according to the Axios Vibes survey (yes, that really is what they call it), a majority of Americans say that they have become less interested in politics because they have difficulty distinguishing fact from fiction.
Given the vast reach of false information online, the proliferation of conspiracy theories, and the algorithmic sorting of people into ideological echo chambers, one plausible explanation for the decline in support for free expression is that people are no longer convinced that the truth will out in the marketplace of ideas—that they believe the market to be broken and in need of significant regulation or reform. To the extent this is the case, the argument that free speech advances dignity and autonomy may become an increasingly important pillar upholding the culture of free speech. This is particularly true with respect to debates over how to appropriately respond to online foreign influence efforts: Explaining why such efforts are likely ineffective is difficult, but explaining why restricting access to information is immoral is relatively straightforward.
Moreover, there is increasing evidence that young people, in particular, are deeply skeptical of free expression. Writing about changing attitudes regarding free speech at colleges and universities, scholars Erwin Chemerinsky and Howard Gillman noted that whereas historically “campus free speech issues arose when administrators sought to restrict student protests,” it is now “students who demand that the campus take action against speech they find offensive.” New polling from North Dakota State University’s Sheila and Robert Challey Institute for Global Innovation and Growth helps quantify this growing trend: In 2024, 56 percent of students thought other students should be reported for saying offensive things, 32 percent of students believed universities should disinvite controversial speakers, and 71 percent of students said professors should be reported for offensive comments. If students’ turn against free expression is indicative of the direction the culture of free speech could take in the future, it is all the more important to marshal additional arguments against censorship.
In making these arguments, it may be particularly fruitful to emphasize the immorality of censoring speech on foreign influence grounds. This is because, as described above, many foreign-influence-motivated efforts to restrict pure speech focus on social media applications such as TikTok that are disproportionately used by younger people. Explaining why such efforts are not just unnecessary to advance the collective interests in free speech, but also harmful to the individual, will help make the importance of free expression relatable to young people. Just as advocating before originalist judges requires familiarity with free speech as a natural right, convincing Gen Z may require emphasizing the value of protecting the dignity and autonomy of social media users.
Finally, emphasizing the moral value of free speech will be especially important in persuading the social media companies themselves not to censor foreign propaganda. As Professor Jack Balkin puts it, “[f]ree speech is a triangle.” That is, the boundaries of permitted speech are defined by relationships among speakers, governments, and private actors. And while it has already become somewhat hackneyed to refer to social media as “the modern public square,” it is true that an extraordinary amount of speech is conveyed on platforms that are primarily regulated by private entities, not the government. These companies need not comply with the First Amendment—indeed, their own First Amendment rights protect their ability to set policies regarding who can use their services and in what circumstances they may do so.
In choosing what speech to allow on their platforms, social media companies are motivated primarily by a desire to have more people use their services for longer, thus increasing profit and shareholder value, not by a desire to help their users discover truth or engage in democratic self-governance. For this reason, many people who support restrictions on speech as a means of combatting foreign influence avoid First Amendment objections by bypassing the government altogether, suggesting instead that social media companies should remove false, misleading, or manipulative information from their platforms. The companies themselves, likely seeking to forestall regulatory efforts, have reassured lawmakers and the public that they take seriously their responsibility to combat the illicit spread of foreign propaganda.
Therefore, moral arguments against censorship motivated by online foreign influence focused on the value of speech to the individual may be particularly important for those opposed to outright bans of such material. While social media companies do not care about the moral value of free expression any more than they do about speech’s utilitarian value, their brand could be damaged if they are perceived as immoral actors. Emphasizing the importance of free expression to dignity and autonomy may help convince social media companies to label or otherwise denote apparent foreign influence efforts without deleting them outright.
In sum, arguments about the value of free expression for promoting human dignity and autonomy could help persuade the courts, the public, and private companies that censorship is an inappropriate response to concerns about online foreign influence activities.
V. Conclusion
Americans have long feared that rival nations will seek to influence our domestic political processes for their own benefit. As recent events have shown, these fears are not baseless: Foreign governments can and do try to influence U.S. politics. These efforts have led some to call for restrictions on speech. Seeking to resist such restrictions, scholars and advocates have noted that foreign influence efforts that rely on speech alone are highly ineffective at changing Americans’ political behavior and that censorship does not promote the search for truth or democratic self-governance.
But as I have argued in this essay, there are other reasons to resist censorship motivated by foreign influence—namely, that restricting free expression is a moral wrong because it infringes upon an individual’s natural right to think, decide, and speak for himself or herself. It is important that those who oppose censorship motivated by foreign influence make this moral argument because it helps maintain a culture of free expression, may be convincing to private actors with the power to regulate speech, aligns with both the original public understanding of the First Amendment and the history and tradition of free expression rights in this country, and ensures that arguments for free expression do not take place on the censors’ terms. At a minimum, protecting autonomy “provide[s] an extra reason why speech should not be prohibited” as a means of countering foreign influence.
Foreign influence is not the only harm that well-meaning people seek to combat through censorship. Restrictions on speech have also been proposed in response to domestic misinformation, conspiracy theories, and hate speech. While these circumstances are outside of the scope of this essay, another benefit of the individual dignity and autonomy case for free speech is that it applies with equal force to them—even as the analysis of other free speech values changes. Respect for human dignity should be a factor in any assessment of speech restrictions, no matter their motivation.
Reflecting on the proliferation of false speech online, Dean Chemerinsky observes that while he “still believe[s] in the premise of the First Amendment—that more speech is better,” he has come to realize that this belief was ultimately “a matter of faith.” As new technologies emerge, expanding the reach and accessibility of speech for good-faith actors and rival nation-states alike, those committed to safeguarding free expression may increasingly find that they do so out of concern for the individual rather than to advance the collective good. But that is hardly a bad thing.
Acknowledgments
This essay was supported by the Widener University Commonwealth Law School Summer Research Grant. It benefited from presentation at the Knight First Amendment Institute symposium “Regardless of Frontiers.” The author is also thankful for thoughtful comments from Katy Glenn Bass, Anna Diakun, Jameel Jaffer, Nahal Kazemi, and Ramya Krishnan on a previous draft.
© 2025, Noah C. Chauvin
Cite as: Noah C. Chauvin, Foreign Influence and the Immorality of Censorship, 25-06 Knight First Amend. Inst. (Feb. 18, 2025), https://knightcolumbia.org/content/foreign-influence-and-the-immorality-of-censorship[https://perma.cc/47JR-HPXL].
The Federalist No. 68, at 411 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Letter from John Adams to Thomas Jefferson (Dec. 6, 1787), https://founders.archives.gov/documents/Jefferson/01-12-02-0405.
George Washington, President, U.S., Farewell Address (Sept. 17, 1796), https://www.govinfo.gov/content/pkg/GPO-CDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf.
1 Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election 14 (2019).
Off. of Dir. of Nat’l Intel., Annual Threat Assessment of the U.S. Intelligence Community 12, 17, 20 (2024), https://www.dni.gov/files/ODNI/documents/assessments/ATA-2024-Unclassified-Report.pdf.
Sheera Frenkel, Israel Secretly Targets U.S. Lawmakers With Influence Campaign on Gaza War, N.Y. Times (June 5, 2024), https://www.nytimes.com/2024/06/05/technology/israel-campaign-gaza-social-media.html.
Wendell Bird, Criminal Dissent: Prosecutions Under the Alien and Sedition Acts of 1798 32–36 (2020); Alien and Sedition Acts of 1798, in 1 Encyclopedia of American Immigration 17, 18 (2d ed. 2021).
Christopher M. Finan, From the Palmer Raids to the Patriot Act 2–3 (2007).
E.g., 2 Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Final Report, S. Rep. No. 94-755, at 17 (1976).
See Off. of Inspector Gen., U.S. Dep’t of Just., Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation 375–77 (2019), https://www.justice.gov/storage/120919-examination.pdf.
See Noah C. Chauvin, The Warrant Exception that Isn’t: FISA Section 702, “Defensive” Searches, and the Fourth Amendment, 74 Am. U. L. Rev. (forthcoming 2025) (manuscript at 8–10), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4914365.
See Dell Cameron, US Lawmaker Cited NYC Protests in a Defense of Warrantless Spying, Wired (Mar. 12, 2024), https://www.wired.com/story/hpsci-us-protests-section-702-presentation/.
Pub. L. No. 118-50, div. H, § 2(a), 138 Stat. 895, 955–56. Lawmakers were also concerned that ByteDance could be compelled to make data about American users available to PRC intelligence agencies. See Sapna Maheshwari & Amanda Holpuch, Why TikTok Is Facing a U.S. Ban, and What Could Happen Next, N.Y. Times (Jan. 17, 2025), https://www.nytimes.com/article/tiktok-ban.html. The U.S. Court of Appeals for the D.C. Circuit upheld the Act. TikTok, Inc. v. Garland, 122 F.4th 930, 970 (D.C. Cir. 2024). At time of writing, the Supreme Court has granted certiorari on an appeal filed by TikTok and its users challenging that ruling. TikTok, Inc. v. Garland, 604 U.S. _, 2024 WL 5148087, at *1 (2024). Prior to publication, the Supreme Court affirmed the D.C. Circuit’s ruling. TikTok, Inc. v. Garland, 145 S. Ct. 57, 72 (2025) (per curiam). Subsequently, Presidents Biden and Trump announced that they would not enforce the forced divestment of the app. Zeke Miller et al., Biden Won’t Enforce TikTok Ban, Official Says, Leaving Fate of App to Trump, AP News (Jan. 17, 2025), https://apnews.com/article/tiktok-ban-trump-executive-order-1e95d9836bf6f8c0c245ed1c3234d968; Xiangnong (George) Wang, President Trump’s Attempt to “Save” TikTok Is a Power-Grab that Subverts Free Speech, Just Sec. (Jan 21, 2025), https://www.justsecurity.org/106601/tiktok-executive-order-free-speech/.
See infra Part III.
This essay addresses only government attempts to restrict information flows in the name of combatting foreign influence. It does not address efforts to combat other means by which foreign nations seek to influence domestic politics, such as by bribing public officials or investing in critical infrastructure.
50 U.S.C. § 3059(f)(2). The Foreign Malign Influence Center is responsible for “analyzing and integrating” the government’s intelligence related to foreign influence activities, as well as advising senior executive officials and members of Congress on such activities. Id. § 3059(b)(3)–(4).
Combating Foreign Influence, Fed. Bureau Investigation, https://www.fbi.gov/investigate/counterintelligence/foreign-influence (last visited Sept. 27, 2024).
CISA Insights: Preparing for and Mitigating Foreign Influence Operations Targeting Critical Infrastructure, Cybersecurity & Infrastructure Sec. Agency, https://www.cisa.gov/resources-tools/resources/cisa-insights-preparing-and-mitigating-foreign-influence-operations-targeting-critical-0 (last visited Sept. 27, 2024).
Sealed Indictment at 4–8, 20–26, United States v. Kalashnikov, No. 24-CRIM-519 (S.D.N.Y. Sept. 4, 2024).
Sealed Indictment at 27–41, United States v. Adams, No. 24-CRIM-556 (S.D.N.Y. Sept. 26, 2024).
Indictment at 16–17, United States v. Jalili, No. 1:24-cr-00439-RDM (D.D.C. Sept. 26, 2024).
Mueller, supra note 4, at 22–24; see also Todd C. Helmus et al., Russian Social Media Influence: Understanding Russian Propaganda in Eastern Europe 12–13 (2018).
Mueller, supra note 4, at 26–29.
Timothy Frye, Inside Job: The Challenge of Foreign Online Influence in U.S. Elections, War on Rocks (Oct. 6, 2020), https://warontherocks.com/2020/10/inside-job-the-challenge-of-foreign-online-influence-in-u-s-elections/.
Gregory Eady et al., Exposure to the Russian Internet Research Agency Foreign Influence Campaign on Twitter in the 2016 Election and Its Relationship to Attitudes and Voting Behavior, 14 Nature Comms. 1, 7–8 (2023).
Off. of Dir. of Nat’l Intel., supra note 5, at 12, 17, 20.
Id. at 12, 17; see also CISA Insights, supra note 18.
Iran Steps into US Election 2024 with Cyber-Enabled Influence Operations, Microsoft Threat Analysis Ctr. (Aug. 9, 2024), https://cdn-dynmedia-1.microsoft.com/is/content/microsoftcorp/microsoft/final/en-us/microsoft-brand/documents/5bc57431-a7a9-49ad-944d-b93b7d35d0fc.pdf.
Affidavit in Support of Seizure Warrant at 1, United States v. Certain Domains, Case No. 24-mj-1395 (E.D. Pa. Sept. 4, 2024).
Max Lesser et al., America Resilient in the Face of Aggressive Foreign Malign Influence Targeting the 2024 U.S. Elections 2 (2024), https://www.fdd.org/wp-content/uploads/2024/12/fdd-memo-america-resilient-in-the-face-of-aggressive-foreign-malign-influence-targeting-the-2024-u.s.-elections.pdf.
22 U.S.C. §§ 614, 618.
Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965); cf. Kleindienst v. Mandel, 408 U.S. 753, 764–65 (1972) (holding that U.S. citizens have a First Amendment interest in hearing information shared by noncitizens).
Meese v. Keene, 481 U.S. 465, 480 (1987).
Indeed, even attempts to identify online foreign influence efforts could burden domestic political speech. To “detect and analyze foreign disinformation,” government officials “monitor or analyze social media.” U.S. Gov’t Accountability Off., GAO-24-107600, Foreign Disinformation: Defining and Detecting Threats 11 (2024). Doing so necessarily means reviewing Americans’ speech, too—and such surveillance can significantly chill the exercise of First Amendment rights. See Amna Toor, Note, “Our Identity Is Often What’s Triggering Surveillance”: How Government Surveillance of #BlackLivesMatter Violates the First Amendment Freedom of Association, 44 Rutgers Comput. & Tech. L.J. 286, 321–26 (2018).
Indictment at 4–5, 11, 19–21, United States v. Internet Rsch. Agency LLC, Criminal No. 1:18-cr-00032-DLF (D.D.C. Feb. 16, 2018).
22 U.S.C. §§ 612(a), 614(a)–(b).
See Joshua R. Fattal, FARA on Facebook: Modernizing the Foreign Agents Registration Act to Address Propagandists on Social Media, 21 N.Y.U. J. Legis. & Pub. Pol’y 903, 924–25 (2019).
See infra notes 102–106 and accompanying text.
See, e.g., Providing Foreign Malign Influence Threat Information to Social Media Platforms, Fed. Bureau Investigation, https://www.fbi.gov/investigate/counterintelligence/foreign-influence/providing-foreign-malign-influence-threat-information-to-social-media-platforms (last accessed Sept. 27, 2024).
See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Off. of Inspector Gen., Dep’t of Just., Evaluation of the U.S. Department of Justice’s Efforts to Coordinate Information Sharing About Foreign Malign Influence Threats to U.S. Elections 15 (2024), https://oig.justice.gov/sites/default/files/reports/24-080.pdf; cf. Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024); id. at 2010 (Alito, J., concurring).
See Toor, supra note 34, at 321–26.
United States Seizes Websites Used by the Iranian Islamic Radio and Television Union and Kata’ib Hizballah, Dep’t of Just. (June 22, 2021), https://www.justice.gov/opa/pr/united-states-seizes-websites-used-iranian-islamic-radio-and-television-union-and-kata-ib; United States Seizes 27 Additional Domain Names Used by Iran’s Islamic Revolutionary Guard Corps to Further a Global, Covert Influence Campaign, Dep’t of Just. (Nov. 4, 2020), https://www.justice.gov/opa/pr/united-states-seizes-27-additional-domain-names-used-iran-s-islamic-revolutionary-guard-corps; United States Seizes Domain Names Used by Iran’s Islamic Revolutionary Guard Corps, Dep’t of Just. (Oct. 7, 2020), https://www.justice.gov/opa/pr/united-states-seizes-domain-names-used-iran-s-islamic-revolutionary-guard-corps.
See Matthew Petti, U.S. Website Seizures Targeting Iran Cast Wide Net Over Dissident and Religious Broadcasters, Intercept (June 26, 2021), https://theintercept.com/2021/06/26/us-iran-censor-websites-evidence/.
Affidavit in Support of Seizure Warrant at 1, United States v. Certain Domains, Case No. 24-mj-1395 (E.D. Pa. Sept. 4, 2024).
See Lamont, 381 U.S. at 307 (1965).
Pub. L. No. 118-50, div. H, § 2(a), 138 Stat. 895, 955–56. For a more fulsome discussion of congressional proposals for combatting the impact of foreign influence on our elections, see Nahal Kazemi, Spies, Trolls, and Bots: Combating Foreign Election Interference in the Marketplace of Ideas, 2 Fordham L. Voting Rts. & Democracy F. 227, 270 (2024).
See, e.g., Brief for the Knight First Amendment Institute at Columbia University et al. as Amicus Curiae Supporting Petitioners at 19–23, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. June 27, 2024). Professor Alan Rozenshtein argues that this is a compelling reason to order the divestment of TikTok, because “[w]hen push comes to shove, there’s no reason to think that the Chinese would not pull every lever they have to gain a strategic advantage over the United States, and this includes manipulating how millions of Americans get their information.” Alan Z. Rozenshtein, Five Observations on the TikTok Bill and the First Amendment, Lawfare (Apr. 22, 2024), https://www.lawfaremedia.org/article/five-observations-on-the-tiktok-bill-and-the-first-amendment.
The D.C. Circuit, in its opinion upholding the law, rejected this argument, claiming that it was supported only by “stray comments from the congressional proceedings.” TikTok, Inc., 122 F.4th at 959.
Jonathan A. Schnader, Accounting for Foreign Disinformation: National Security Regulatory Proposals for Social Media Accounts and False Speech, 36 J. L. & Pol’y 1, 24–25 (2021).
Fattal, supra note 37, at 938–44.
Ganesh Sitaraman, The Regulation of Foreign Platforms, 74 Stan. L. Rev. 1073, 1140 (2022).
Id. at 1147–48.
Id. at 1148–51.
Zephyr Teachout, Critics of the TikTok Bill Are Missing the Point, Atlantic (Mar. 20, 2024), https://www.theatlantic.com/ideas/archive/2024/03/tiktok-bill-foreign-influence/677806/.
Ashley C. Nicolas, Taming the Trolls: The Need for an International Legal Framework to Regulate State Use of Disinformation on Social Media, 107 Geo. L.J. Online 36, 52 (2018).
Id. at 52–53.
Id. at 53–57.
E.g., Schnader, supra note 49, at 27–28; Sitaraman, supra note 51, at 1138–39; Teachout, supra note 54.
Eady et al., supra note 25, at 8.
Lesser et al., supra note 30, at 2, 19.
Eady et al., supra note 25, at 8; cf. Felix M. Simon et al., Misinformation Reloaded? Fears About the Impact of Generative AI on Misinformation are Overblown, Harv. Kennedy Sch. Misinformation Rev. (Oct. 18, 2023), https://misinforeview.hks.harvard.edu/article/misinformation-reloaded-fears-about-the-impact-of-generative-ai-on-misinformation-are-overblown/ (“[D]espite the quantity and accessibility of misinformation, the average internet user consumes very little of it. . . . What makes misinformation consumers special is not that they have privileged access to misinformation but traits that make them more likely to seek out misinformation . . . .” (citations omitted)); Matthew Leake, Are Fears About Online Misinformation in the US Election Overblown? The Evidence Suggests They Might Be, Reuters Inst. (Oct. 24, 2024), https://reutersinstitute.politics.ox.ac.uk/news/are-fears-about-online-misinformation-us-election-overblown-evidence-suggests-they-might-be (same).
See Marcel Caesmann et al., Censorship in Democracy 14–16 (Univ. Zurich Dep’t Econ. Working Paper Series, Working Paper No. 446, 2024), https://www.zora.uzh.ch/id/eprint/260103/1/econwp446.pdf.
See Microsoft Threat Analysis Ctr., supra note 28, at 1.
Sayash Kapoor & Arvind Narayanan, We Looked at 78 Election Deepfakes. Political Misinformation Is Not an AI Problem, Knight First Amend. Inst. (Dec. 13, 2024), https://knightcolumbia.org/blog/we-looked-at-78-election-deepfakes-political-misinformation-is-not-an-ai-problem; see also id. (“Increasing the supply of misinformation does not meaningfully change the dynamics of the demand for misinformation since the increased supply is competing for the same eyeballs.”); Simon et al., supra note 61.
Kapoor & Narayanan, supra note 64; Simon et al., supra note 61.
See, e.g., Moody v. NetChoice, LLC, 603 U.S. 707, 741–42 (2024); McCullen v. Coakley, 573 U.S. 464, 476 (2014); R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992); TikTok, Inc., 122 F.4th at 958.
Lamont, 381 U.S. at 302 (quoting the Postal Service and Federal Employees Salary Act of 1962, § 305(a)).
Id. at 307.
Id.
Id.
Id. at 308 (Brennan, J., concurring).
Id.
Id. at 308–09.
John Samples, Why the Government Should Not Regulate Content Moderation of Social Media 15–16 (2019), https://www.cato.org/sites/cato.org/files/pubs/pdf/pa_865.pdf.
Id. at 16.
Id.
Gavin Wilde, From Panic to Policy: The Limits of Foreign Propaganda and the Foundations of an Effective Response, 7 Tex. Nat’l Sec. Rev. 42, 44–46, 50 (2024).
Id. at 46.
Id. at 53.
See id. at 54.
Matthew Petti, The War on “Foreign Influence” Has Become a War on the First Amendment, reason (Sept. 9, 2024), https://reason.com/2024/09/09/the-war-on-foreign-influence-has-become-a-war-on-the-first-amendment/.
Id.
See id.
See id.
Id.
See, e.g., Brief for the Knight First Amendment Institute at Columbia University et al. as Amicus Curiae Supporting Petitioners, supra note 47, at 19–23; Jameel Jaffer & Genevieve Lakier, The Supreme Court Must Intervene in the TikTok Case, N.Y. Times (Dec. 10, 2024), https://www.nytimes.com/2024/12/10/opinion/tiktok-first-amendment-china-ban-bytedance.html; Jameel Jaffer, History Has Already Discredited the TikTok Ban, Just Sec. (Sept. 14, 2024), https://www.justsecurity.org/100095/tiktok-ban-first-amendment/; Jameel Jaffer, There’s a Problem With Banning TikTok. It’s Called the First Amendment, N.Y. Times (Mar. 24, 2023), https://www.nytimes.com/2023/03/24/opinion/tiktok-ban-first-amendment.html.
Brief for First Amendment Law Professors as Amici Curiae Supporting Petitioners at 21, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. June 27, 2024); see also Brief for Foundation for Individual Rights and Expression, Institute for Justice, and Reason Foundation Supporting Petitioners at 24–26, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. June 27, 2024).
Brief for Foundation for Individual Rights and Expression, Institute for Justice, Reason Foundation, et al. as Amicus Curiae Supporting Applicants at 14, TikTok, Inc. v. Garland, No. 24A587 (Sup. Ct. Dec. 27, 2024).
Nikolas Guggenberger et al., Six Reactions to the Proposed TikTok Ban, LPE Project (Mar. 26, 2024), https://lpeproject.org/blog/six-reactions-to-the-proposed-tiktok-ban/.
Jane Bambauer, The TikTok Law and the Foreign Influence Boogeyman, Lawfare (Aug. 12, 2024), https://www.lawfaremedia.org/article/the-tiktok-law-and-the-foreign-influence-boogeyman; cf. Schnader, supra note 49, at 4–5 (“If disinformation broadcasted on a social media platform aligns with users’ views, they will be more likely to see that disinformation and subsequently share it with other like-minded users.”).
See, e.g., Erwin Chemerinsky, Constitutional Law: Principles and Policies 1008–12 (7th ed. 2023); C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 990–91 (1978); Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119, 130–54 (1989).
Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).
See Greenawalt, supra note 91, at 144, 153.
Greenawalt, supra note 91, at 153.
Baker, supra note 91, at 991–92.
Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 601 (1982).
Frederick Douglass, A Plea for Freedom of Speech in Boston (Dec. 9, 1860), https://frederickdouglasspapersproject.com/s/digitaledition/item/9060.
Lawrence Byard Solum, Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech, 83 Nw. U. L. Rev. 54, 80 (1989). But see Greenawalt, supra note 91, at 151–52 (arguing that justifications of free expression grounded in listener autonomy rely on the dubious assumption that people are rational).
See, e.g., Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 591 U.S. 430, 433–36 (2020); Soojung Jang v. Trs. of St. Johnsbury Acad., 331 F. Supp. 3d 312, 330 (D. Vt. 2018); see also Anna Su, Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373, 1392–94 (2014); Timothy Zick, The First Amendment in Trans-Broder Perspective: Toward a More Cosmopolitan Orientation, 52 B.C. L. Rev. 941, 954 (2011).
See Solum, supra note 98, at 80.
Joseph Thai, The Right to Receive Foreign Speech, 71 Okla. L. Rev. 269, 313 (2018).
Lamont, 381 U.S. at 307. Notably, a separate line of cases holds that the right to receive information is “derivative of the First Amendment rights of the speaker.” Martin v. U.S. Env’t Prot. Agency, 271 F. Supp. 2d 38, 47 (D.D.C. 2002); see also Noah C. Chauvin, Protecting Students’ Right to Listen by Statute, 13 Touro J. Race, Gender & Ethnicity 113, 116–17 & nn. 13–15 (2024). It is not immediately obvious how to reconcile this line of cases with Lamont.
481 U.S. 465 (1987).
Keene, 481 U.S. at 480.
See Peter Margulies, Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech, 63 Hastings L.J. 455, 476 (2011).
Cf. Kazemi, supra note 46, at 270.
TikTok, Inc., 122 F.4th at 958.
See, e.g., Julien Berman & Alan Z. Rozenshtein, The TikTok Case Will Be Determined by What’s Behind the Government’s Black Lines, Lawfare (Aug. 13, 2024), https://www.lawfaremedia.org/article/the-tiktok-case-will-be-determined-by-what-s-behind-the-government-s-black-lines. Notably, the D.C. Circuit said that its decision in TikTok, Inc. v. Garland was based “solely on the unredacted, public filings in th[e] case,” TikTok, 122 F.4th at 969, as did the Supreme Court in its decision, TikTok, 145 S. Ct. at 69 n.3 (“Our holding and analysis are based on the public record, without reference to the classified evidence the Government filed below.”).
See, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433, 479 (2023).
See Clay Calvert & Mary-Rose Papandrea, The End of Balancing? Text, History & Tradition in First Amendment Speech Cases After Bruen, 18 Duke J. Const. L. & Pub. Pol’y 59, 72–75 (2023).
376 U.S. 254, 280 (1964).
See Counterman v. Colorado, 600 U.S. 66, 105 (2023) (Thomas, J., dissenting); Blankenship v. NBCUniversal LLC, 144 S. Ct. 5, 5–6 (2023) (Thomas, J., concurring in the denial of certiorari); Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of certiorari); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of certiorari); McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, J., concurring in the denial of certiorari). Several lower court judges have expressed their agreement with Thomas that Sullivan should be overturned on originalist grounds. See Tah v. Global Witness Publ’g, 991 F.3d 231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting in part); Mastandrea v. Snow, 333 So. 3d 326, 328 (Fla. Dist. Ct. App. 2022) (per curiam) (Thomas, J., concurring); Reighard v. ESPN, Inc., 991 N.W.2d 803, 825 (Mich. Ct. App. 2022) (Boonstra, J., concurring).
Berisha, 141 S. Ct. at 2429 (Gorsuch, J., dissenting from the denial of certiorari).
Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, No. 24-3051, Slip Op. at 13 (6th Cir. 2024) (en banc) (Thapar, J., concurring); see also NetChoice, LLC v. Paxton, 49 F.4th 439, 454 (5th Cir. 2022) (“Rather than mount any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on Supreme Court doctrine.”); Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1261 (11th Cir. 2022) (Newsom, J., concurring in part and concurring in the judgment) (arguing for an originalist interpretation of the First Amendment).
Compare, e.g., Leonard Levy, Emergence of a Free Press 281 (1985) (arguing that the First Amendment was intended to embody Blackstone’s constrained vision of free speech), with, e.g., David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795, 829–32 (1985) (arguing that Levy fails to adequately account for countervailing evidence demonstrating that many founders viewed freedom of expression as a natural right).
See, e.g., Christopher L. Eisgruber, The Living Hand of the Past: History and Constitutional Justice, 65 Fordham L. Rev. 1611, 1623–24 (1997).
E.g., McKee, 139 S. Ct. at 678–79.
See, e.g., Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 264–65, 268–76 (2017).
Id. at 267.
Id. at 280–83.
Similar arguments could apply if the judges were to use the “text, history, and tradition” test Thomas articulated in his majority opinion in New York State Rifle & Pistol Ass’n v. Bruen, which he said was consistent with the Court’s First Amendment cases. 597 U.S. 1, 24–25 (2022); see Calvert & Papandrea, supra note 110, at 84, 93–94; cf. Marc O. Degirolami, First Amendment Traditionalism, 97 Wash. U. L. Rev. 1653, 1674–78 (2020).
See, e.g., Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court 38, 47–48, 85–88, 100 (2019).
Learned Hand, The Spirit of Liberty (May 21, 1944), https://www.thefire.org/research-learn/spirit-liberty-speech-judge-learned-hand-1944.
Ken White & Greg Lukianoff, What’s the Best Way to Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture, reason (Aug. 4, 2020), https://reason.com/2020/08/04/whats-the-best-way-to-protect-free-speech-ken-white-and-greg-lukianoff-debate-cancel-culture/.
Christopher St. Aubin & Jacob Liedke, Most Americans Favor Restrictions on False Information, Violent Content Online, Pew Rsch. Ctr. (July 20, 2023), https://www.pewresearch.org/short-reads/2023/07/20/most-americans-favor-restrictions-on-false-information-violent-content-online/.
Id.
Margaret Talev, Axios Vibes: Americans Blame Politicians for Misinformation, Axios (Sept. 26, 2024), https://www.axios.com/2024/09/26/misinformation-politicians-elections-axios-harris. The most troubling spreader of misinformation? American politicians, according to 51 percent of those surveyed. Id.
Erwin Chemerinsky & Howard Gillman, Free Speech on Campus 13 (2017). But see Timothy Zick, New Threats to Campus Protest, First Amend. L. Rev. (forthcoming 2025) (manuscript at 4–11), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5035039 (describing universities’ efforts to restrict student speech in response to pro-Palestine protests in 2023 and 2024).
John Bitzan, 2024 American College Student Freedom, Progress and Flourishing Survey 12, 21, 31 (2024), https://www.ndsu.edu/fileadmin/challeyinstitute/Research_Briefs/2024_American_College_Student_Freedom_Progress_and_Flourishing_Survey.pdf.
See Social Media Fact Sheet, Pew Rsch. Ctr. (Jan. 31, 2024), https://www.pewresearch.org/internet/fact-sheet/social-media/. Even platforms such as Facebook, which Russia used extensively in its efforts to influence the 2016 election, see Mueller, supra note 4, at 24–26, and which has developed a reputation as being a site for old people, see Barbara Ortutay, Facebook Has 3 Billion Users. Many of Them Are Old, AP News (May 8, 2023), https://apnews.com/article/facebook-teenagers-tiktok-instagram-young-adults-fc9f6daa605e7c7f6fd5f4eaa90141fa, is used by a majority of young people, see Social Media Fact Sheet, supra.
Jack M. Balkin, 118 Colum. L. Rev. 2011, 2012 (2018).
See id. at 2014.
See Packingham v. North Carolina, 582 U.S. 98, 107 (2017).
See Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2393, 2399–2403 (2024).
See, e.g., Kurtis Nelson & Darrell M. West, Foreign Influence Operations in the 2024 Elections, Brookings Inst. (Sept. 12, 2024), https://www.brookings.edu/articles/foreign-influence-operations-in-the-2024-elections/; Lawrence Norden et al., Multiple Threats Converge to Heighten Disinformation Risks to This Year’s US Elections, Just Sec. (Feb. 16, 2024), https://www.justsecurity.org/92348/multiple-threats-converge-to-heighten-disinformation-risks-to-this-years-us-elections/.
See Schnader, supra note 49, at 7. But see Justin Hendrix, Transcript: Mark Zuckerberg Announces Major Changes to Meta’s Content Moderation Policies and Operations, Tech Pol’y Press (Jan. 7, 2025), https://www.techpolicy.press/transcript-mark-zuckerberg-announces-major-changes-to-metas-content-moderation-policies-and-operations/.
See, e.g., Andy Craig, Elon Musk Sues His Critics into Silence. So Much for “Free Speech", Cato Inst. (Aug. 10, 2024), https://web.archive.org/web/20241003141941/https://www.cato.org/commentary/elon-musk-sues-critics-silence-so-much-free-speech.
See Greenawalt, supra note 91, at 145.
Erwin Chemerinsky, False Speech and the First Amendment, 71 Okla. L. Rev. 1, 15 (2018).
Noah Chauvin Noah Chauvin is an assistant professor of law at Widener Law Commonwealth.