Wes Henricksen, Barry University School of Law, is publishing Privacy and Propaganda in the Connecticut Public Interest Law Journal. Here is the abstract.
The proliferation of false information through social media and other digital platforms presents a number of threats to individuals and society. But where falsehoods are disseminated intentionally by government actors, whether at the state or federal level, such “bad faith government propaganda” presents its own unique threats and challenges. Although such speech does not generally fit within any exception to the First Amendment, scholars have recently put forth arguments that perhaps it should. But apart from its First Amendment aspects, another constitutional ground for potentially regulating bad faith government propaganda can be found in the right to privacy in state constitutions. Unlike the federal Constitution, many state constitutions include an express right to privacy. This express privacy right under state constitutions is often significantly broader in scope than the unenumerated federal right to privacy. This article analyzes bad faith government propaganda under the express right to privacy contained in numerous state constitutions, and asks whether such intentional false speech might constitute an unconstitutional intrusion into the private life of those duped by the propaganda. Because of the coercive and deceitful nature of bad faith propaganda, there are strong arguments not only that it is an intrusion into private life-the privacy standard under Florida’s constitution-but that it might fall outside the bounds of protected free speech. The article concludes that even if bad faith propaganda does amount to intrusion into private life, in violation of the privacy right under state constitutions, whether to impose regulations on such speech and what those regulation should look like are questions left for another day. Bad faith propaganda certainly presents significant dangers to individuals and society, but so too would imposing new restrictions on speech. Any such regulations must be created, if at all, with precision and caution.
Download the article from SSRN at the link.