As the midterm elections draw closer, a familiar kind of anxiety fills the air. We read news alerts about ICE agents appearing near polling places, about states quietly purging voter rolls, about long lines and broken machines. These are real threats, and they deserve attention. But there is another threat that causes just as much damage, if not more, and receives far less coordinated response: election disinformation. It is the lie that reaches a voter’s phone at six in the morning on Election Day, telling them their polling place has moved. It is the official-looking website that appears near the top of a search result, offering wrong instructions about absentee ballots. It is the robocall saying you can vote by phone, when you cannot. We tend to treat this problem as if it were untouchable, a natural consequence of the First Amendment. We assume that any attempt to regulate false election speech would be struck down, so we do not even try. But that assumption is only partly true. The law is more complicated, and more hopeful, than the hand-wringing suggests. We have more room to act against election disinformation than we think, and we need to use it before the franchise itself is corroded. If we keep treating this threat as impossible to address, we are not being cautious; we are being complacent.
First, let’s be clear about what election disinformation means. It isn’t just a mistake or a rumor that spirals out of control. It is the deliberate spread of false information designed to mislead voters and undermine the electoral process. The NAACP has described how these falsehoods, often circulating online, tell people where to vote, when to vote, and how to vote in ways that are wrong. Sometimes the deception is crude: a social media post claiming you can text in your ballot. Sometimes it is sophisticated: a text message that looks like it comes from your county elections office, warning that your registration is invalid and asking you to confirm personal information. There have been documented voter registration scams in which people posing as election officials tell voters they are incorrectly registered, or ask them to register to vote over the phone in states where that is not allowed. These are not abstract hypotheticals. One tracker shows that in this election cycle alone, more than 220 online accounts have spread dozens of falsehoods. The effect can be devastating. A voter who receives false information may not realize it until they have missed their chance to vote. They may show up at the wrong precinct, arrive too late, or decide their vote doesn’t matter. This is disenfranchisement by confusion, and it targets vulnerable populations—people with less access to reliable information, minority communities, new citizens, and elderly voters—who often face the greatest obstacles to the ballot box. It is nearly a modern poll tax, paid not in money but in time, trust, and civic participation. And because it happens quietly, in the corners of the internet, it is easy to ignore. But the people who lose their voices because of it do not have that luxury.
Why, then, have lawmakers and local leaders done so little to combat this threat? The most common answer is constitutional paralysis. In August of this election year, one of the only states to attempt a direct legal assault on election disinformation was turned away in court. With narrow exceptions—fraud, perjury, knowingly lying to a federal officer—the First Amendment protects our right to say false things. That can sound crazy. Most people assume that lies are punishable. But in the United States, we deliberately allow a wide range of false speech in order to protect the freedom of expression that democracy requires. The theory is that if the government can punish lies, it will also punish uncomfortable truths. It will use the law as a cudgel against dissent, and citizens will self-censor, fearing prosecution for something they said in good faith. We need breathing room. The Supreme Court articulated this in a case where a man lied about receiving the Medal of Honor. The Court said that “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.” The same logic applies to evolving facts. During the early months of the COVID-19 pandemic, public health officials initially told people not to wear masks, then changed course as scientists learned more about transmission. If every correction could be treated as a crime, experts would stop speaking. So the Constitution’s protective approach has a purpose. But there is a difference between protecting the messy process of discovering truth and allowing deliberate lies, spread by networks and bots, to decide who gets to vote and whose vote counts. This is not to say that all false speech is equal. A satirical post is not a scam. A mistake is not a scheme. But we have tools to tell the difference—intent, materiality, and actual harm. Too often, public officials hide behind the First Amendment rather than exploring its actual limits. They act as if the Constitution says anything goes, when the Supreme Court has never said that.
Indeed, the First Amendment is not absolute. Even in the same stolen-valor case, the Supreme Court was careful to acknowledge that “there are instances in which the falsity of speech bears upon whether it is protected” and that “[s]ome false speech may be prohibited even if analogous true speech could not be.” That is an important caveat. It means that the level of constitutional protection depends on the context, the harm, and the intent. We already prohibit categories of lies that threaten concrete interests. You cannot commit fraud, even though fraud can be carried out entirely by speech. You cannot commit perjury, even though your false statement is speech under oath. You cannot impersonate a federal officer, even though impersonation is just a combination of clothing, language, and assertion. In the commercial realm, the Court has long held that deliberately misleading statements designed to deceive consumers are not protected by the First Amendment. And when it comes to elections specifically, the Court has recognized that states have a legitimate interest in protecting voters from confusion and undue influence at the polls. That is not a blank check. It does not mean states can pass vague or sweeping laws that criminalize all political deception. Laws must be precise, not broad; they should target the conduct, not the viewpoint. But it does mean states can draw lines, especially where the falsehood is intentional, material, and likely to prevent people from voting. The internet has changed the stakes. Scholars like Richard Hasen have pointed out that the low cost and extraordinary reach of online communication mean a false claim about voting can reach thousands of people in seconds, while a correction might come too late. Research on digital misinformation shows that false or low-credibility content spreads faster than the truth on social media. In this environment, waiting for the marketplace of ideas to self-correct is not a neutral strategy; it is a decision to allow the lie to win.
Given these cracks in the constitutional barrier, it is time to stop treating election disinformation as something that cannot be addressed. Lawyers may say there is no perfect statute yet, but there are plenty of possible approaches that respect the First Amendment. A law could prohibit knowingly making a materially false statement about the time, place, or manner of an election, when that statement is intended to discourage or prevent someone from voting. It could criminalize impersonating an election official, just as it already criminalizes impersonating a federal officer. It could ban the malicious distribution of false voting information—not because the government disagrees with the content, but because the lie is designed to rob someone of their constitutional right. States can create rapid-response mechanisms to flag false information, coordinate with local election officials, and publicize accurate details before the damage multiplies. None of these proposals are radical. They are consistent with our existing law, which already punishes lies that cause concrete harm. The Supreme Court has not said that states must stand idle while citizens are tricked out of the franchise. It has left daylight, as some scholars call it, between what the First Amendment protects and what it permits states to regulate. Lawmakers and local leaders too often see that uncertainty as a reason for inaction. But in our constitutional system, uncertainty is often the beginning of a conversation, not the end of it. Courts draw lines when cases are brought. They cannot draw lines if no one acts. The failure to act is not humility; it is abdication. Some will argue that no law can solve everything. That is true. But partial solutions save votes, and saved votes save voices. If a state passes a carefully crafted statute, it might be challenged, and the court may strike it down in part. But we will never know the contours of permissible regulation until we ask. And the right to the franchise is too important to permit timidity.
At stake is no less than the idea that ordinary citizens can cast informed votes. The ability to vote is the bedrock of our democracy, but the ability to vote without being manipulated by lies is what makes that right meaningful. A person who is turned away at the polls because of an official-sounding text message has lost their voice just as surely as if they had been barred by a poll tax. A person who votes in the wrong precinct because of a false social media post has been disenfranchised as effectively as if their registration had been purged. The threat of election disinformation is not just legal; it is human. It is the elderly woman who believes the robocall and stays home. It is the college student who misses the deadline because a fake account told him his ballot was already counted. It is the immigrant voter who receives a scary message in Spanish and decides not to risk it. We do not need to choose between the First Amendment and election integrity. We can protect robust free debate while still punishing intentional lies that are designed to steal votes. The Supreme Court has left us some space. It has recognized that the First Amendment is not a suicide pact and that false speech causing concrete harm can be regulated. The only question is whether our leaders have the will to act. Civic organizations can demand it. Voters can support it. State and local officials can lead the way. Lawmakers can test the boundaries and let the courts respond. The franchise is too precious to lose by default to the loudest and most dishonest voices. If the daylight the Court has left us is not for protecting the right to vote, then for what is it? It is time to use it. Democracy is not a machine that runs itself; it is a garden. And we have to weed it before the lie chokes out the truth.