Resolving the First Amendment’s Civil War: Political Fraud and the Democratic Goals of Free Expression
This Article presents a timely reexamination of the relationship between the First Amendment and political fraud, defined as the use of knowingly false speech to achieve political goals. We extend core Meiklejohnian free-speech principles to show that political fraud presents an intra-First Amendment conflict because both regulating and not regulating political fraud presents some risk to the First Amendment’s goal of self-government. Further, we establish that the self-governance harm of political fraud can justify government intervention, even after the Supreme Court’s Alvarez decision. However, the First Amendment equities only permit such intervention when political fraud has the potential to undermine the collective self-determination that the First Amendment is intended to facilitate. We conclude by discussing key procedural protections that would help most effectively implement our substantive standard as an effective tool in mitigating the First Amendment harms of political fraud.