Fixing False Truths: Rethinking Truth Assumptions and Free-Expression Rationales in the Networked Era

The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very bases for such freedoms in a democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This Article examines, in light of massive, widespread adoption of networked technologies and AI and Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression.

The Article examines the marketplace approach’s history and assumptions, as well as alternative, philosophical understandings of truth and how the Supreme Court has communicated understandings about truth in its opinions. The Article concludes by outlining how installing revised truth assumptions, those that align more with discursive and phenomenological understandings, will better protect these freedoms, as well as the flow of information, in the twenty-first century.