Electoral Lies and the Broader Problems of Strict Scrutiny
States often attempt to regulate political speech in the form of deliberate lies related to ballot initiatives, referenda, candidates, or their political positions. Some courts focus on the various harms of electoral lies, while others focus more on the risks of bias and partisan abuse involved in such speech regulations, and the cases are in disarray. This article argues, however, that the most important problem underlying this case confusion is inherent in the widely utilized constitutional standard of strict scrutiny. Strict scrutiny typically requires a compelling governmental interest, “narrow tailoring,” and some causal relation between the regulation and the compelling interest. The crucial point, though, is that, as this article documents, each of these elements lends itself to a surprising degree of arbitrariness, judicial subjectivity, uncontrollable complexity, and sheer impracticality. The article works through these multiple problems, in the context of electoral lies and much more broadly, and considers two significant possible reforms of standard versions of the judicial strict scrutiny test.
An Emotion-Based Approach to Freedom of Speech
Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect the expression of emotion.
What an Emotion is: A Sketch
1. In the paradigm cases; emotions are felt. Furthermore, there is a strong inclination to identify the feeling with the emotion (analogously with: The feeling of a pain is the pain). But unlike pains, emotions are not always felt, being sometimes "subceived" and sometimes wholly beneath consciousness. 2. Emotions are intentional states, and have propositional objects in the sense that what the emotion is about, of, for, at, or to can in principle be specified prepositionally. 3. Some emotions have typical physiological concomitants, some of which are to some degree felt; and people are sometimes inclined to identify the feeling of the emotion with the feeling of these changes. 4. Typically an emotion depends on the subject believing some state of affairs to obtain (for example, A would not fear this spider if he didn't believe it likely that the spider is harmful); but this is not always so: Sometimes we experience an emotion despite not believing its propositional content. 5. Some emotions beget dispositions to kinds of actions; so references to such emotions are often a powerful way of explaining actions.