Issue Area 1: Balancing Free Speech with Appropriate Restrictions at the National Level A. New Issues, Old Laws Despite the development of international human rights principles, States struggle to balance the right to freedom of expression with restrictions in accordance with legitimate interests that are recognized under international law. States have long used discrete laws dealing with defamation, elections, consumer protection, and financial fraud to address the harm done by false information. Even in exceptionally charged political environments, courts have been able to rely on these frameworks to adjudicate election disputes. The United States, for example, historically has employed a very broad interpretation of free speech. The First Amendment to the U.S. Constitution states unequivocally that “Congress shall make no law … abridging freedom of speech,” a right that has grown to encompass many forms of citizen speech. However, defamatory statements, which are defined as “false statements of fact about a person,” incitement, fraud, obscenity, child pornography, fighting words, and threats are not protected speech under the First Amendment. 22 In defamation cases, the party alleging defamation must “demonstrate that the speaker acted with a certain level of intent … or to prove certain injuries.” Certain federal laws regarding elections also prohibit false statements about voter eligibility and “fraudulent misrepresentation of authority to act for a federal political candidate.” 23 Dominion Voting Systems, Inc. v. Fox News Network, Fox Corporation 24 illustrates how U.S. courts have grappled with issues of free speech and defamation in the context of elections. Prior to the 2020 U.S. presidential election, analysts, including New York-based Fox News, predicted that early vote counting would favor the incumbent, Donald Trump, and that later counting would favor his opponent, Joseph Biden. This was indeed how the election proceeded, with Biden eventually securing the presidency. Infuriated by Fox News’ projections and a potential loss of the presidency, Trump and his supporters adopted a narrative that widespread fraud had tainted the election. As Fox News’ viewership dropped, the network suddenly began to amplify Trump’s false narrative, presumably in hopes of boosting its ratings. 25 Shortly after the election, Fox News began stating publicly that Dominion Voting Systems, Inc., a private supplier of election and voting technology that operated many of the voting machines used during the election, had used those machines to “rig” the election in favor of Biden. Case law has helped establish the various categories of unprotected speech. Some prominent examples include Brandenburg v. Ohio (incitement); Virginia v. Black (true threats); Chaplinsky v. New Hampshire (fighting words); Miller v. California (obscenity). See Defamation. | Constitution Annotated | Congress.gov | Library of Congress (outlining a more detailed definition of defamation); Unprotected Speech Synopsis. The Foundation for Individual Rights and Expression (thefire.org) (defining unprotected free speech); United States Courts (n.d.) What Does Free Speech Mean? | United States Courts (uscourts.gov); fighting words. Wex | US Law | LII / Legal Information Institute (cornell.edu) (detailing the extensive case law behind “fighting words”). 23 52 USC 30124: Fraudulent misrepresentation of campaign authority. 24 U.S. Dominion Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation v. Fox News Network, LLC, C.A. No.: N21C-03-257 EMD (Del. Sup. Ct., 2023) and U.S. Dominion Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation v. Fox Corporation, C.A. No.: N21C-11-082 EMD (Del. Sup. Ct., 2023) (the cases were merged). 22 25 Id. at Sec. I. FNN'S ELECTION COVERAGE AND RISING BRAND CONCERNS. 9