Yale “MFIA Clinic Report Provides Roadmap for Attorneys to Challenge Election Disinformation”

Important report released by Yale Media Freedom and Information Access Clinic:

Students from Yale Law School’s Media Freedom and Information Access (MFIA) Clinic have released a new white paper titled “Using the Ku Klux Klan Act to Combat Election Disinformation: A Guide for Practitioners.”

The guide offers a roadmap for attorneys seeking civil remedies against certain forms of digital election disinformation, such as lies about how to vote, impersonation of candidates or officials, and misinformation intended to intimidate voters.

Read the white paper: Using the Ku Klux Klan Act to Combat Election Disinformation: A Guide for Practitioners 

The report focuses on two underutilized provisions of the Ku Klux Klan Act of 1871: the “Support-or-Advocacy” clauses of 42 U.S.C. § 1985(3) and the companion “Neglect-to-Prevent” provision of 42 U.S.C. § 1986. Though originally passed to combat Reconstruction-era voter intimidation by the Ku Klux Klan, these statutes remain powerful tools for modern election protection, according to the clinic. The white paper argues that § 1985(3) can provide a private cause of action when election-related disinformation arises from a conspiracy and amounts to a common-law tort (such as intentional interference with the right to vote, misappropriation of likeness, or false-light invasion of privacy) carried out “on account of” someone’s support for a federal candidate.

Additionally, § 1986 may create liability for third parties like robocall vendors, group leaders, or public officials who knowingly fail to prevent such conspiracies when they have the power to do so.

While the First Amendment rightly shields much false speech about elections, the report outlines scenarios where challenges to election disinformation may prevail despite the First Amendment, such as when the disinformation at issue constitutes a lie about election mechanics or an impersonation of a candidate, or when it is particularly likely to undermine election integrity. Drawing on legal precedent, historical context, and real-world examples — including social media ads that promote “texting to vote” and robocalls that impersonate candidates — the report offers a path forward for legal practitioners aiming to challenge harmful election lies without infringing on protected speech….

(Disclosure: I gave feedback on an earlier version of this report as well as worked with the clinic and Protect Democracy on the amicus brief filed in the Mackey case.)