Civics: Michigan AG’s #DetroitLeaks Takedown Demand, and Seditious Libel

Eugene Volokh:

But I take it that this isn’t the Michigan AG’s concern here—rather, the concern must be that people will be fooled into overestimating the risk of election fraud (assuming those statements are indeed false), and will thus either be less interested in voting or will view the election results as illegitimate. And that strikes me as a special case of the much broader concern about certain kinds of political lies: Lies about the government or its processes, the theory goes, will wrongly undermine citizens’ faith in the government.

This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

The Act’s backers stressed that the law (unlike the English common law of seditious libel) was limited to “false” and “malicious” statements; and they noted the importance of restricting those statements. Here is Justice Chase’s instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically: