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On the Legality of Defrauding the Public
No full textSpeech used to intentionally mislead others to gain a tangible benefit while causing harm to the one deceived or to others is generally labeled “fraud.” This term is used in both legal and nonlegal contexts. Where speech used to defraud satisfies the elements of a tort or a crime, it becomes “actionable fraud.” Categories of actionable fraud include common law deceit, securities fraud, and wire fraud. But taken together, these laws address harmful dishonesty in an inconsistent manner. While they broadly prohibit deceiving individual victims, they often allow deceiving the public at large. As a result, it is often lawful to intentionally spread harmful, false, or misleading messages to the public. Moreover, because such publicly disseminated false speech is often not actionable fraud, it is protected speech under the First Amendment. This gap in the law, whereby one is prohibited from defrauding one person but permitted to defraud millions, gives a green light to those who stand to benefit from the largest and most harmful schemes to deceive. These include, for instance, the fossil fuel industry’s campaign of climate change denial and former President Donald Trump’s stolen election lie. This Article builds on prior scholarship by exploring why current law largely fails to address schemes to defraud the public. It further explores the myriad ways fraud on the public causes economic harm, harm to human health and life, and environmental damage. The Article then argues that this gap in the law should be closed and posits possible ways to do so consistent with the First Amendment. The Article answers critics who claim that imposing such speech restrictions will allow those in power to determine the “truth” and impose it on the public by noting that those in power are already doing this precisely because the law allows it. Those with the public megaphone frequently disseminate self-serving falsehoods and manipulate the public into buying into falsehoods as “truth.” Accordingly, the Article concludes it is urgent we find solutions to this problem that carefully balance free speech rights against the harm from intentional falsehoods spread to the public
POV: Sisterhood for the Win
No full textWhen Vice President Kamala Harris accepted President Joe Biden’s endorsement on Sunday to replace him on the Democratic ticket and to run for the party’s nomination, she emphasized her intention to “earn and win” support for her candidacy. Historically, earning widespread support has proved to be a challenge for women candidates seeking the highest political offices in a country—with a 2023 Pew study finding that women served as government heads in just 13 of the 193 member states of the United Nations, and that fewer than one-third of UN countries have ever had a woman leader
The BYU Advocate
No full textAs BYU Law celebrates 50 years of excellence, we reflect on the foundational commitments that set the Law School apart.
Among law schools, BYU’s aims are unique. Our mission statement reads, \u27In striving to emulate [the] example [of Jesus Christ], we seek to be and develop people of integrity who combine faith and intellect in lifelong service to God and neighbor.\u27
– Dean David H. Moorehttps://digitalcommons.law.byu.edu/annual_reports/1014/thumbnail.jp
The Justice League: Coming Together to Address Statewide Re-Entry Needs
No full textProfessor Radice began her term in May as Chair of the Tennessee Supreme Court Access to Justice Commission. As one of her first acts, she moderated and presented on a panel, The Justice League: Coming Together to Address Statewide Re-Entry Needs, discussing Tennessee’s statewide approach and embrace of various models to fill the access to justice gap
First Amendment Defenses to Alien Transportation Crimes
No full textFlorida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court’s Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment protection from transportation crimes when religious principles motivated such crimes
Core Communications Inc v. AT&T Enterprises LLC
No full textUSDC for the Eastern District of Pennsylvani
