Among the election cases blowing up this Supreme Court term, several cases dealing with online speech could have a major impact on the tidal wave of disinformation that already threatens to wash away sense and truth in 2024. New technologies are supercharging online disinformation, which as we know, quickly turns into real-life conflict. At the same time, laws and regulations around speech and online content are stuck in the past century. On this week’s Amicus podcast, Dahlia Lithwick was joined by Barbara McQuade, former federal prosecutor and author of Attack From Within: How Disinformation Is Sabotaging America, to discuss whether and how the courts might handle a dizzying array of new threats to election integrity from social media and disinformation. This interview has been edited for length and clarity.

Dahlia Lithwick: The United States is uniquely susceptible [to disinformation] in part because of the First Amendment, in part because of a legal regime under which we operate, and this notion that for better or for worse, the marketplace of ideas is the way to go. You talk about how corrupt and corruptible the marketplace of ideas is. But I find myself struck by the twin facts that we have archaic doctrine that cannot possibly metabolize technological change fast enough, and then we also have these archaic ideas about how a marketplace of ideas could work. Do you mind just thinking through the ways in which it’s almost overdetermined that we can’t get control of this because of the constraints of the First Amendment?

Barbara McQuade: I think we can, but I do think that it makes it really challenging. We all cherish the First Amendment; people on the left, on the right, and in between. Everybody understands why the First Amendment is so important. And so it makes it difficult to say “We’re going to ban disinformation,” because who is the arbiter of what is disinformation and what is not? But we need to rethink social media and whether it’s completely hands-off. As you well know, no right is absolute, including our First Amendment rights to free speech. As long as there is satisfaction of strict scrutiny—that is, a compelling governmental interest and a limitation that is narrowly tailored to achieve—that interest does pass constitutional muster.

So I think we need to think about that online. People refer to social media as the virtual town square. Elon Musk loves to say that this is the modern town square. But it’s really different from the town square, right? It’s very different from a real person standing on a soap box in the town square. In the town square, we can see who’s speaking. Is it really a........

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