America has made a terrible mistake. Despite everything we’ve seen from the right, voters have nonetheless moved toward it.

But rather than the mandate Trump/Musk/Christo-nationalists are claiming from the election, however, U.S. voters merely reflected the same pattern emerging from around the globe, almost universally: Incumbent leaders and parties world-wide have been defeated, or their majorities reduced, in a global “radicalizing effect” still lingering from the COVID economy. Across the political spectrum, voters have punished incumbent parties in Japan, South Africa, Italy, Austria, the U.K., France, Sweden, Finland, New Zealand, Belgium, Portugal and the Netherlands. As Matthew Yglesias wrote for the NYT, “Everywhere you look in the world of affluent democracies, the exact same thing is happening: The incumbent party is losing and often losing quite badly.”

As a healing balm, this may feel thin. After all, other countries don’t have a Trump equivalent (except perhaps Netanyahu, whose war is keeping him in office, and Putin, whose elections are a joke). Americans have seemingly embraced a known monster, someone who sells political violence and hatred, who tried to overthrow the last election. But it’s more complicated than that. Trump supporters in the U.S. consume right-wing propaganda far more than the rest of the country, which means they were either not informed about Trump’s sinister plans, or Fox and Musk succeeded in scaring them with a fire hose of Harris disinformation.

First Amendment law needs to catch up with an altered media landscape

While it may feel better to think of Trump supporters as misinformed rather than hateful, the downside is that an un-informed public cannot sustain a freely elected democracy. This is exactly what Musk, Murdoch, Putin, and destabilizing forces from around the world are banking on. Like a snake gorging on its own tail, domestic disruptors are weaponizing America’s First Amendment to get rid of it so that the oligarchs funding them can drill, shoot, pollute, and defraud American consumers with impunity.

I’ve been a trial lawyer for decades, and I’ve had the misfortune of litigating arcane aspects of First Amendment law. Fox and Musk have gotten away with spreading disinformation because of a self-serving misapprehension of the political speech doctrine: The First Amendment protects “core political speech” above all other forms of expression. But Musk purchasing the world’s town square only to weaponize it to support his own agenda, and Fox admittedly lying to viewers nonstop to promote Trump, isn’t political speech presumptively entitled to legal protection.

Weaponized disinformation will ultimately kill the First Amendment, which the Supreme Court recognized back in 1969 when it approved the Fairness Doctrine and required accuracy in the media. Even in politics, the foundational role of protecting free speech is the promotion of free ideas, not to protect a nefarious publisher’s monopoly.

Musk, Fox and Putin spread rampant election disinformation

Elon Musk is a disinformation superspreader who weaponized Twitter/X to amplify blatant anti-Harris lies to his 200 million followers. Fox is an admitted network of lies, one with nationwide reach close to that of Musk’s. Russia also disseminated false information to benefit Trump, spreading fake videos and election-related press releases across multiple social media platforms, including a hoax impersonating FBI officials to scare people away from the polls.

U.S. courts need to carefully consider the political speech doctrine before it does us in, if it hasn’t already. Under the theory that only more speech can cure bad ideas, the right to speak one’s mind politically has been and must remain sacrosanct: “(T)he remedy to be applied (to expose falsehoods and fallacies) is more speech, not enforced silence.” But rampant disinformation from the 2024 election reveals the limitations of that approach: monopolized conversations ultimately become one-sided.

The bottom line is that speech is no longer the same because we don’t consume media the same way we did when the First Amendment was written. We don’t even consume media the same way we did more recently, when the Fairness Doctrine was embraced by SCOTUS.

We aren’t hateful.  We’re just misinformed.

As I see it, Trump didn’t win this election. Disinformation did, demonstrating that the world’s richest men, funding disinformation, will stop at nothing to end government regulations and taxes, or to defeat democracy itself.

We aren’t a hateful nation, we’re a nation that’s been lied to. By Fox, by Russia, by Elon Musk.

But there will come a day when Republican goals run counter to Trump/Musks, and, educated by federal courts, the GOP will see the value in protecting truth.