“Distrust, Negative First Amendment Theory, and the Regulation of Lies,” by Prof. Helen Norton

The article can be accessed here; here is the Introduction:

The existence of government is rooted in our inherent distrust of each other: Government, at its core, establishes and enforces laws to create an environment conducive to various valuable pursuits. However, while we rely on government to protect us from each other, we also recognize the need to safeguard ourselves from the government. The American constitutional tradition reflects a dual distrust of both the people and the government.

First Amendment law embodies this tradition of distrust. While it is commonly believed that speech warrants constitutional protection when it contributes positively to democratic self-governance, enlightenment, and individual autonomy, the First Amendment also operates on a negative theory of the Free Speech Clause. This theory asserts that speech is protected not solely because of its value, but rather due to the potential for government abuse of its regulatory authority. Negative free speech theory views the First Amendment as more about our apprehensions towards the government than our aspirations for the greater good. (It is important to note that “negative” and “affirmative” First Amendment theories are not mutually exclusive, as courts and scholars often draw upon multiple theories rather than adhering strictly to one.)

In essence, negative First Amendment theory revolves around a negative concept: distrust of government. Given the government’s track record, this theory holds significant weight.

Instances where negative theory is evident include United States v. Alvarez, where the Supreme Court, in a split decision, struck down the federal Stolen Valor Act that criminalized false claims about receiving military honors. The Court deliberated on a case where a speaker was convicted for falsely claiming to have received the Congressional Medal of Honor. Despite agreement that the law did not target or inhibit valuable speech, the plurality justified the First Amendment challenge based on negative theory—emphasizing the need to constrain government rather than protect meritorious speech:

Allowing the government to criminalize such speech, whether publicly proclaimed or whispered in private, would authorize the government to dictate which topics can be punished for false statements. This governmental authority lacks clear boundaries. Our constitutional heritage rejects the notion of needing a Ministry of Truth akin to that in Oceania.

Negative theory is most apparent when the Court invalidates government speech regulations perceived as lacking affirmative value, as seen in the Alvarez case. This theory increasingly informs the contemporary Court’s approach to various other First Amendment issues.

In Reed v. Gilbert, for example, the majority employed negative theory when deciding to subject all content- and speaker-based distinctions to strict scrutiny, even in the absence of evidence of malicious intent by the government. The Court, in Reed, struck down a town’s sign ordinance on Free Speech Clause grounds, as the ordinance’s arbitrary distinctions failed rational basis scrutiny. Despite this, the majority announced a broader application of strict scrutiny whenever the government differentiated speech based on content—without acknowledging the numerous instances where such distinctions had been made without triggering First Amendment scrutiny. Justices Breyer and Kagan, in their concurrences, questioned the wisdom of this sweeping rule, citing inconsistencies with established precedent.

In my opinion, Breyer and Kagan’s reservations are valid. Negative theory, like any other free speech theory, necessitates clear boundaries to determine when government regulation of expression is constitutionally permissible and when it is not. Without limits, negative theory invariably opposes government speech regulation, although an absolutist approach is impractical and costly, depriving elected officials of the ability to address critical public issues. In essence, negative theory acts as a check on government power, but it also requires its own limitations to prevent the gridlock stemming from unchecked distrust. We need to safeguard ourselves from the government and empower the government to fulfill its duty of serving and protecting us.

However, the question arises: when should we distrust—or trust—the government? Ethicist and political scientist Russell Hardin notes that our decisions to trust or distrust are largely influenced by inductive reasoning, based on our past experiences with the trustworthiness and competence of the individual in question. Trust and distrust are contextual and relative assessments, influenced by the timing and comparison to other entities. Changes in circumstances and technology can alter our perceptions and shift the focus of our distrust. While our experiences often lead to a distrust of the government (complicated further by the multitude of government actors), there are occasions where we may distrust powerful private entities even more.

Complicating these assessments is the fact that trust and distrust are cognitive evaluations of the other party’s reliability, susceptible to both false positives and false negatives. Political scientist Deborah Welch Larson emphasizes the need to evaluate the epistemological basis of our distrust, particularly in cases where it may stem from hasty judgments or stereotypes.

Another aspect to consider in conjunction with when to apply negative theory is how to utilize it. For instance, courts can employ negative theory as a deciding factor, applying strict scrutiny to invalidate government speech restrictions when there is evidence of the government’s untrustworthy motives or incompetence—regardless of the speech’s lack of positive value. Alternatively, negative theory can serve as a tiebreaker when other free speech theories offer conflicting guidance, ensuring that close cases lean against the government. Courts may also incorporate negative theory as one of several considerations in a balancing test, weighing the harm posed by the contested speech against the risk of partisan or clumsy enforcement by the government.

This essay delves into the relationship between negative First Amendment theory and the government’s regulation of falsehoods. Descriptively, it underscores the prevalence and impact of negative theory in assessing the constitutionality of laws targeting lies. From a prescriptive standpoint, it argues that the principled application of negative theory—grounded in distrust of the government’s potential for regulatory abuse—necessitates a nuanced understanding of distrust. Specifically, it suggests that the principled application of negative theory requires a critical evaluation of whether the government’s regulation occurs in contexts where its actions are particularly perilous due to malintent or ineptitude, or where its discretion is unrestricted. Conversely, negative theory should carry less weight in situations where the government’s discretion is limited, where there is no evidence of self-serving behavior or incompetence, or where individuals lack protection from powerful private entities, leading to greater distrust towards non-governmental actors than the government.