Digital Disinformation During Declared Disasters: a First Amendment Storm Warning

Constitutional law seems ill-equipped to deal with the onslaught of fake news and digital algorithms. Professional communicators and emergency managers noticed this trend several years ago as it became increasingly more difficult to get lifesaving information to citizens who needed to take immediate action. Knowing that the government has a duty to preserve life and property during disasters, those emergency managers were hopeful that legislators and courts would also see such a dangerous trend and mitigate it accordingly. However, the mitigation of these issues did not happen swiftly enough, and 2020 laid bare all the nightmares that social and digital media can cause when left unfettered. The United States has rich First Amendment case law that affords Americans freedom from government intervention in their speech. There are exceptions to these liberties, such as defamation or regulation of commercial speech, but the law is less robust or clear when it comes to “fake news,” disinformation, and social media algorithms that reward engagement over the marketplace of ideas. False statements in natural or manmade disasters are far more damaging than false advertising in commercial speech or harming someone’s reputation in defamation. Not only does disinformation during disasters pit the government’s duties to preserve life against a citizen’s liberties, but false information during disasters also comes at great cost: human life!Justice Harlan’s opinion in Jacobson v. Massachusetts that “[s]ociety based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy,” occurred during a volatile time that was central to transforming the relationship between individuals and the government. Many of the elements from Jacobson parallel modern-day conversations about COVID-19 mitigation measures and individual liberties, with those who are choosing to follow disinformation and operate under laws unto themselves creating anarchy and chaos. Since “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand,” our government must find ways to restrain false speech and hate speech when it’s posted or shared on popular social media platforms without running afoul of the First Amendment. This paper provides an analysis and roadmap for overcoming digital disinformation during the lifesaving operations of a declared disaster, so long as the laws or ordinances follow pre-existing disaster framework, bear a real or substantial relation to the disaster declaration at hand, and are not plain, palpable invasions of the public’s rights as secured by the fundamental law. First Amendment foundations, statutory authorities and responsibilities during disasters, and existing disaster policies and frameworks are provided as background in this paper, before turning to proposed legislative considerations for overcoming digital disinformation during declared disasters. Although the Supreme Court has made clear that it’s not likely to add more categories to the list of unprotected speech, it did not rule out that other forms of unprotected speech might exist. I respectfully offer that even though the Court held that position only eleven years ago, that is a long time in internet years. Disinformation cases will require an updated view of the First Amendment. Disasters and emergencies demand swift responses. As such, statutory and executive authorizations must ensure executive response reflects policy choices that occur on blue sky days, not when stakes are high such as in a crisis. Current Section 230 and tech debates will likely not provide relief to this dilemma swift enough to prevent the loss of more lives, so this paper strives to use existing disaster definitions and policy frameworks to provide guidance for policy makers, elected officials, and emergency managers as they weigh First Amendment liberties against the protection of life. Government reform on emergency issues could further put executive actions on firm statutory grounds to make way for handling disinformation during life-or-death events while simultaneously ensuring that declared disasters do not create a free-for-all for infringing on individual liberties. After the background and analysis, I lay out the additions to local and state emergency ordinances that would create a legislative avenue for combating disinformation. This proposal ensures that civil liberties would be minimally restricted, and that legislation could pass strict scrutiny should a court choose to analyze this legislation under the standard of review for the First Amendment, rather than the lesser standard found in Jacobson case law. There will be challenges and criticisms to the recommendations in this paper. I outline many of them near the end of this research to provide areas of consideration for those in policy positions and to help mitigate lawsuits or infighting that could arise if someone does not conduct proper due diligence before bringing these cases and policies into their branches of government – each branch being critical to the multitude of policies and laws that must be navigated during a declared emergency.Each section of this paper is (or could be) an entire area of law, regulation, policy, or industry. For this reason, a limitation of this paper is that there is no deep analysis into each section. Rather, each section contains elements that should be considered at the intersection of disasters, communication, and the First Amendment. In its totality, this paper should be viewed as a guide for legal decision makers, legislative policy makers, and public safety professionals.