Trump didn't win. Disinformation did.

First amendment law needs to catch up with weaponized media.

BRENDAN SMIALOWSKI/GETTY IMAGES

Americans made a mistake. Despite everything we’ve seen from the right, voters have nonetheless moved toward it.

Rather than the mandate Trump/Musk/Christo-nationalists are claiming from the election, however, US voters merely reflected the same pattern emerging from around the globe, almost universally: Incumbent leaders and parties world-wide have been defeated, or their majorities reduced, in a global ‘radicalizing effect’ still lingering from the Covid economy.  Across the political spectrum, voters have punished incumbent parties in Japan, South Africa, Italy, Austria, the UK, France, Sweden, Finland, New Zealand, Belgium, Portugal and the Netherlands. As Matthew Yglesias wrote for the NYT, “everywhere you look in the world of affluent democracies, the exact same thing is happening: The incumbent party is losing and often losing quite badly.”

As a healing balm, this may feel thin. After all, other countries don’t have a Trump equivalent (except perhaps Netanyahu, whose war is keeping him in office, and Putin, whose elections are a joke). Americans have seemingly embraced a known monster, someone who sells political violence and hatred, who tried to overthrow the last election. But it’s more complicated than that. Trump supporters in the US consume right wing propaganda far more than the rest of the country, often exclusively, which means they were either not informed about Trump’s sinister plans, or Fox and Musk succeeded in scaring them with a firehose of Harris disinformation.

First Amendment law needs to catch up with an altered media landscape

While it may feel better to think of Trump supporters as misinformed rather than hateful, the downside is that an un-informed public cannot sustain a freely elected democracy. This is exactly what Musk, Murdoch, Putin, and destabilizing forces from around the world are banking on. Like a snake gorging on its own tail, domestic disrupters are weaponizing America’s First Amendment to get rid of it so that the oligarchs funding them can drill, shoot, pollute, and defraud American consumers with impunity.

I’ve been a trial lawyer for decades, and I’ve had the misfortune of litigating arcane aspects of First Amendment law. Fox and Musk have gotten away with spreading disinformation because of a self-serving misapprehension of the political speech doctrine: The First Amendment protects ‘core political speech’ above all other forms of expression. But Musk purchasing the world’s town square only to weaponize it to support his own agenda, and Fox admittedly lying to viewers nonstop to promote Trump, isn’t political speech presumptively entitled to legal protection.

Weaponized disinformation will ultimately kill the First Amendment, which the Supreme Court recognized back in 1969 when it approved the Fairness Doctrine and required accuracy in the media. Even in politics, the foundational role of protecting free speech is the promotion of free ideas, not to protect a nefarious publisher’s monopoly.

Musk, Fox and Putin spread rampant election disinformation

Elon Musk is a disinformation superspreader who weaponized Twitter/X to amplify blatant anti-Harris lies to his 200 million followers. Fox is an admitted network of lies, one with nationwide reach close to that of Musk’s. Russia also disseminated false information to benefit Trump, spreading fake videos and election-related press releases across multiple social media platforms, including a hoax impersonating FBI officials to scare people away from the polls.

US courts need to carefully consider the political speech doctrine before it does us in, if it hasn’t already.  Under the theory that only more speech can cure bad ideas, the right to speak one’s mind politically has been and must remain sacrosanct: “(T)he remedy to be applied (to expose falsehoods and fallacies) is more speech, not enforced silence.”  Rampant disinformation from the 2024 election reveals the limitations of that approach: monopolized conversations ultimately become one-sided.

The bottom line is that speech is no longer the same because we don’t consume media the same way we did when the First Amendment was written.  We don’t even consume media the same way we did more recently, when the Fairness Doctrine was embraced by SCOTUS.

We aren’t hateful.  We’re just misinformed.

As I see it, Trump didn’t win this election. Disinformation won, demonstrating that the world’s richest men, funding disinformation, will stop at nothing to end government regulations and taxes, or to defeat democracy itself.

We aren’t a hateful nation, we’re a nation that’s been lied to. By Fox, by Russia, by Elon Musk.  We have the strongest economy in the world, we recovered post-Covid better than any other advanced economy, unemployment is low, and the Biden stock market hit more records than Trump’s, yet Fox, Musk and Russia convinced half the country that we’re in economic peril. According to AP VoteCast’s sweeping survey and other network exit polls, most voters were focused on a ‘crumbling’ economy, and they broke hard for Trump.

While it’s true that Biden’s $1.9 trillion rescue plan temporarily exacerbated inflation by up to 3 percentage points, it also powered the US’ stunning comeback from Covid. Economists have observed that the gap between voters’ positive perceptions of their own financial health, compared to their negative perceptions of the country’s economic health, is mainly explained by what they are being told by the media.

The richest men in the world bought the election

In the final weeks before the election, Elon Musk hosted town halls throughout battleground states and promoted a fraudulent “lottery” that wasn’t really a lottery at all, giving away $1 million a day to promote Trump. Musk, the richest man in the world, says he and his America PAC, funded with $118 million of his own money, will “keep going after this election, and prepare for the midterms and any intermediate elections.” We shall see.

His and Fox’s willingness to skirt the law bear the fruits of an intimidation campaign by Republican attorneys general and legislators designed to force social media to platform falsehoods and hate speech. These same nefarious forces will oppose any efforts to impose fairness in the media’s coverage of politics, because, for now, they benefit politically from the lies.

But there will come a day when their goals run counter to Trump/Musk’s, and even they, educated by federal courts, will come to see the value in protecting truth.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th A defense.