Regina Postrekhina
93 Geo. Wash. L. Rev. 669
The harm that social media influencers and their election disinformation pose to American democracy may be novel to United States courts, but the damage has already been done. An influencer in the 2016 election manipulated almost 5,000 people into texting a number in place of a ballot, potentially scamming those people out of a vote. The public’s perception of United States election integrity has suffered in the wake of the post-2020 election disinformation campaign, which has threatened the safety of the election administrators across the country and the ultimate survival of United States democratic systems. The protection of freedom of speech under the First Amendment, although essential to democracy and a defense for those influencers peddling election disinformation, should not be applied to perpetuate the illegal infringement on the right to vote. This Note analyzes the relevant First Amendment case law regarding falsehoods in the electoral speech context and proposes three limiting principles to target only speech that (1) falls into a specific subset of election disinformation, (2) imposes a legally cognizable harm, and (3) is promulgated by social media influencers rather than lay persons. These limiting principles address the tensions between preserving the freedom of speech necessary to a flourishing democracy while restricting speech that threatens its survival. When the issue of social media election disinformation and the regulation of influencers, in particular, inevitably come to the Supreme Court, this Note argues that the application of these three limiting principles will allow the restriction of such speech to survive strict scrutiny.
