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Williams-Yulee v. Florida Bar, 575 US 433, 443 (2015) (‘As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection’; ibid. at 446:

Barr v. American Association of Political Consultants, 140 S.Ct. 2335, 2381 (2020) (‘The Court has held that entire categories are speech – for example, obscenity, fraud, and speech integral to criminal conduct – are generally unprotected by the First Amendment entirely because of their content’)

Illinois ex rel. Madigan v. Telemarketing Associates, Inc., at 612
(606 ‘While bare failure to disclose that information directly to potential donors does not suffice to establish fraud, when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim’).

Andrew Guess’ and Benjamin Lyons’ definitions of misinformation and disinformation. Misinformation is false information that ‘contradicts or distorts common understandings of verifiable facts’.³⁰ Meanwhile, ‘disinformation is the subset of misinformation that is deliberately propagated. This is a question of intent: Disinformation is meant to deceive, while misinformation may be inadvertent or unintentional.’³¹

although the Supreme Court has been very lenient on liars, even in the context of elections,³⁹ it still maintains that fraud is outside of the ambit of First Amendment protections.⁴⁰ The argument I am advancing here is that just as common law fraud (and wire fraud) is not protected by the First Amendment,

⁵⁵ United States v. Alvarez at 723 (citing Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment)); see also United States v. Alvarez at 718 (quoting Brown v. Hartlage, 456 US 45, 60–61 (1982): ‘False statements “are not protected by the First Amendment in the same manner as truthful statements”’).

⁵⁶ United States v. Smith, 985 F.Supp.2d 547, 605–6 (S.D.N.Y. 2014).

although the Supreme Court has been very lenient on liars, even in the context of elections,Footnote³⁹ it still maintains that fraud is outside of the ambit of First Amendment protections.Footnote⁴⁰ The argument I am advancing here is that just as common law fraud (and wire fraud) is not protected by the First Amendment, raising money for Trump’s Save America PAC (and other political committees) with the Big Lie is not covered by the First Amendment either.

The Supreme Court has long been hostile to individuals who have defrauded others. Dating back to 1820 the Court stated, ‘the first principles of the common law [is that] fraud [is] the object of its peculiar abhorrence, and [fraud] contaminat[es] every act’.Footnote⁴¹ The Court has defined common law fraud as including ‘a scheme to deprive a victim of his entitlement to money’.Footnote⁴² In 1976, the Supreme Court concluded in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. about commercial advertisements that ‘[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake.’Footnote⁴³ And in another case the Supreme Court added to this definition, ‘common-law fraud has long encompassed certain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability.’Footnote⁴⁴ Thus, according to the Supreme Court, fraud can be both express lies as well as failures to tell key truths.

Nat’l Rev., Inc. v. Mann, 140 S. Ct. 344, 344 (Alito, J., dissenting from denial of certiorari). However, Justice Alito did not focus on actual malice but instead expressed concern about whether existing standards provide sufficient protection for opinion on import ant public policy issues. Id. at 346–48. For further analysis of the arguments of Justices Thomas and Gorsuch, see generally

This Court may affirm on any basis evident from the record. See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 343 (2d Cir. 1994) (holding that an appellate court can affirm a district court's order "on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely") (internal quotation marks and citation omitted).

For the foregoing reasons, we AFFIRM the judgment of the district court on alternative grounds.

Jonathan Ferziger
"For 20 years, Ferziger was chief political reporter for Bloomberg News
on Israeli and Palestinian affairs"
-- Miriam Herschlag-blog/Times of Israel

Post Office Box 8101White Plains, New York 10602Tel: (914) 421-1200e-mail: mail@judgewatch.org

Post Office Box 8101
White Plains, New York 10602
Tel: (914) 421-1200
e-mail: mail@judgewatch.org