Does Free Speech Protect Disinformation?
In a 2023 Senate hearing, the CEO of TikTok was interrogated about whether the platform's algorithm disproportionately promoted misleading content, particularly about U.S. elections and public health. As senators delved into the app's influence on disseminating false information to millions of users, a question formed: In our commitment to liberal democratic ideals, must we also uphold the rights of those who knowingly spread lies?
The question of whether free speech ought to protect disinformation is not merely a legalistic one, as it implicates the epistemological conditions of democratic life and the moral commitments of liberal societies. Although the First Amendment provides sturdy protection for most speech, including blatantly false statements, the normative defense of free expression has historically been linked to its capacity to foster public reason and enlightenment. Disinformation, which is defined as the intentional dissemination of falsehoods designed to mislead, stands in stark contrast to this function. Rather than promoting informed discourse, it undermines the essential foundations upon which free societies are built.
This essay argues that disinformation should not be normatively protected under the principle of free speech. While legal constraints may necessitate a cautious approach to regulation, especially in light of the risks of state overreach, the philosophical justification for free expression cannot and should not extend to those who deploy speech as a weapon against truth, understanding, or democratic integrity.
I. Free Speech and the Epistemic Ideal
The classical defense of free speech in liberal philosophy finds its most enduring expression in John Stuart Mill's On Liberty. Mill argues that even false opinions serve a critical role in the pursuit of truth, either by being refuted and discarded or by sharpening and clarifying the truths with which they are confronted. His frequently quoted line that "the peculiar evil of silencing the expression of an opinion is that it is robbing the human race" encapsulates the rationale for robust expression: free speech is epistemically valuable—not because all speech is true, but because all speech, true or false, contributes to the dialectical process of truth-seeking.
This argument forms the basis of the "marketplace of ideas," a metaphor now foundational to First Amendment jurisprudence in the United States. Like a free economic market, a free discursive arena is assumed to self-correct over time; good ideas will emerge victorious while flawed ones will fall by the wayside, ideally resulting in a more informed public.
However, Mill's model relies on several critical assumptions: that participants engage with sincere intentions, that they remain willing to learn, and that the general public demonstrates both the capacity and willingness to engage rationally with competing ideas. But in today's information ecosystem, many utterances are not merely erroneous. When speech is not advanced in the spirit of inquiry but rather with the intent to manipulate, confuse, or destabilize the audience, the very openness Mill champions can be weaponized by actors who do not believe in openness at all.
Disinformation is not merely an error to be corrected. Rather than representing the mistaken utterances of citizens participating in democratic debates, it constitutes a communicative act aimed at manipulation, misrepresentation, or obfuscation. Such acts violate the fundamental conditions that render Mill's account credible. If free speech is meant to protect democratic deliberation, can it also protect those who exploit that freedom to undermine it?
II. The Marketplace of Ideas in the Age of Algorithm
The longstanding appeal of John Stuart Mill's theory of free speech has often been linked to its alignment with core American constitutional values, particularly the First Amendment's foundational skepticism towards state censorship. Yet even in legal theory, the "marketplace of ideas" has faced increasing scrutiny. Justice Oliver Wendell Holmes's metaphor assumes that ideas compete on an equal footing, judged solely by a rational public on their merit. But in the digital age, this assumption is demonstrably false.
Today's "marketplace" is governed not by open debate but by algorithmic prioritization and affective virality. The classical ideal envisions a public sphere where arguments are judged on merit and truth emerges through rational debate, but today's digital platforms reward reaction more than action. A 2018 study in Science found that misinformation outpaces factual news on platforms like Twitter, largely due to its ability to provoke stronger emotional responses.
In such an environment, disinformation does not lose to better ideas. While reasoned claims wane, disinformation thrives off of fear and certainty. Far from fostering democratic deliberation, the digital speech economy incentivizes sensationalism, outrage, and division. When the structural features of discourse favor disinformation, the epistemic value of free speech becomes not just diluted but inverted.
III. The Ethics of Deception
To determine whether free speech protects disinformation, we must define disinformation precisely. It is not mere falsity—many forms of protected speech are false, mistaken, or speculative. Rather, disinformation refers to the deliberate dissemination of false or misleading information with the intention of deceiving.
Disinformation violates the Kantian principle of communicative respect. As philosopher Seana Shiffrin argues, lying is not merely epistemically problematic but morally wrong because it bypasses the audience's capacity for rational judgment. It treats others as mere tools, not ends in themselves. By contrast, genuine speech presumes the audience's agency and their right to know the truth.
Disinformation is also structurally distinct from error. In the age of social media, falsehoods are no longer rare or self-contained. They are algorithmically amplified, emotionally viral, and sometimes state-sponsored. Their purpose is not engagement but erosion of trust in institutions, truth, and even the value of discourse itself. This is particularly evident in "post-truth" politics, a term popularized by philosopher Lee McIntyre to describe a political culture where objective facts are less influential than personal beliefs and emotional appeals.
From a normative standpoint, the moral problem with disinformation is not simply its falsity but also its intent. For Kant, lying was wrong not because it caused harm but because it treated others as mere instruments. Disinformation magnifies that logic: it doesn't just use people; it programs their reactions. Disinformation, as a strategic form of deception, violates this imperative. Contemporary theorists, such as Seana Shiffrin, extend Kant's argument, noting that truthfulness is essential to the kind of trust that makes communication— and, by extension, political cooperation —possible. Disinformation corrodes trust not only in its immediate targets but in the very practice of public discourse.
Furthermore, disinformation often thrives in conditions of epistemic asymmetry. When bad actors possess greater resources, technical sophistication, or platform reach, they can overwhelm or drown out truthful speech. In such contexts, "more speech"—the traditional remedy to falsehood—is not always available, effective, or proportionate, which undermines the assumption of reciprocity central to liberal discourse ethics.
IV. Objections: Domino Effects and Censorship Risks
Defenders of maximalist free speech protections raise a legitimate concern: if the state or dominant institutions are granted the authority to define "disinformation," what safeguards exist against their potential misuse of that power to stifle dissent? Might governments conflate inconvenient truths with harmful lies?
Historical abuses, from McCarthyism to the suppression of civil rights activists, demonstrate the dangers of allowing authorities to police "truth." It is for this reason that any attempt to regulate disinformation must proceed with procedural safeguards, transparency, and narrowly tailored criteria.
Yet the fear of overreach cannot justify inaction. Just as fire safety codes do not constitute a tyrannical imposition on building regulations, so too do targeted interventions designed to curtail demonstrably harmful disinformation (notably that which threatens electoral integrity, public health, or the foundations of democratic legitimacy) not inherently contradictory to liberal values. Protecting the conditions under which free speech remains meaningful may require some constraints on the abuse of speech.
V. Institutional Responses and Civic Solutions
Rather than placing all responsibility on the state, a more resilient approach to disinformation can emerge from civil society and institutional design. Social media platforms and news broadcasts are permitted to prioritize virality over veracity, so schools must stop treating civics as an afterthought and instead teach students how to evaluate sources and weigh evidence critically.
The goal of the state should not be to eradicate every falsehood (which is both utopian and fundamentally illiberal) but one that will prevent democracy from collapsing under its weight through resistance. Misinformation is inevitable, but this goal would allow the state to encourage informed discourse and strengthen the foundations of a healthy democracy. By doing so, we can contribute to a more resilient political philosophy that promotes accountability and values the truth in public life.
VI. Free Speech as a Democratic Practice
To return to the original question—does free speech protect disinformation?—the answer depends on what we mean by "protect" and what we mean by "free speech."
In many liberal democracies, there are legal protections for various forms of expression, including speech that may be classified as false or misleading. Regardless, the normative justification for free speech philosophically cannot be indiscriminately applied to expressions that erode the very foundations of free discourse. Disinformation should not be regarded merely as an alternative perspective in democratic dialogue; it instead symbolizes the interference that threatens to drown out meaningful discussion.
Free speech is not a license for unbounded expression but a shared democratic practice that rests on trust, responsibility, and a collective commitment to truth. In a post-truth democracy, we don't just need the right to speak but also norms and systems that help us recognize what's worth listening to. If we want free speech to survive the post-truth era, we must be willing to defend not only the right to speak but also the conditions that make speech worth hearing.