Does the First Amendment cover deliberately deceptive speech?

Kent Kroeger
6 min readApr 3

By Kent R. Kroeger (April 3, 2023)

Photo taken by Brandt Luke Zorn (Used under the CCA-Share Alike 2.0 Generic license.)

Friday’s conviction of Douglass Mackey, also known as “Ricky Vaughn,” by a New York federal jury of the charge of Conspiracy Against Rights for using deliberately deceptive internet memes in an attempt “to deprive individuals from exercising their sacred right to vote for the candidate of their choice in the 2016 Presidential Election.”

The conviction launched a torrent of denunciations on social media fearing its ramifications will discourage more constructive speech and, in effect, put our free speech protections at risk.

This is an argument constitutional legal experts have used to explain cases where demonstrably false speech is defended by the courts. Writes Valerie C. Brannon, a legislative attorney for the Congressional Research Service:

“The Supreme Court has recognized that false statements may not add much value to the marketplace of ideas. Even so, there is a concern that by prohibiting false speech, the government would also “chill” more valuable speech, meaning it would cause people to self-censor out of fear of violating the law. Consequently, the First Amendment creates “breathing space” protecting the false statements and hyperbole that are “inevitable in free debate.” New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court has suggested the government may not regulate false ideas, and even false factual statements receive some constitutional protection.”

Its a ‘slippery slope’ argument — a polemic device a philosophy professor once taught me to avoid if the goal is persuasion. Regardless, it is a common defense of false speech in the context of First Amendment rights.

Kent Kroeger

I am a survey and statistical consultant with over 30 -years experience measuring and analyzing public opinion (You can contact me at: