Media Freedom Clinic Releases Guide for Attorneys to Combat Election Disinformation

Yale Law Students Unveil Guide for Combating Election Disinformation Using Civil Rights Law

Students from Yale Law School’s Media Freedom and Information Access (MFIA) Clinic have published a comprehensive white paper examining how civil rights legislation from the Reconstruction era could be deployed against modern election disinformation campaigns.

The publication, titled “Using the Ku Klux Klan Act to Combat Election Disinformation: A Guide for Practitioners,” explores legal remedies for addressing false information designed to interfere with voting rights. The guide focuses specifically on combating disinformation about voting procedures, impersonation of election officials or candidates, and intimidation tactics aimed at suppressing voter participation.

At the heart of the white paper are two provisions of the Ku Klux Klan Act of 1871 that the authors argue have been underutilized in contemporary election protection efforts: the “Support-or-Advocacy” clauses of 42 U.S.C. § 1985(3) and the “Neglect-to-Prevent” provision of 42 U.S.C. § 1986.

Congress originally passed this legislation to protect newly enfranchised Black voters from violent intimidation by the Ku Klux Klan during Reconstruction. However, the MFIA Clinic argues these provisions remain powerful and relevant tools to combat modern digital threats to election integrity.

The white paper explains how § 1985(3) could provide a private right of action when election-related disinformation stems from a conspiracy and constitutes a common-law tort carried out specifically because of someone’s support for a federal candidate. Examples of applicable torts include intentional interference with voting rights, misappropriation of likeness, and false-light invasion of privacy.

Perhaps more significantly for the digital age, the authors highlight how § 1986 could potentially create liability for third parties who knowingly fail to prevent such conspiracies when they have the power to do so. This could include robocall vendors, social media platforms, group leaders, or public officials who turn a blind eye to election disinformation campaigns.

The analysis arrives at a critical moment for American democracy. With the 2024 presidential election approaching, concerns about disinformation campaigns—both domestic and foreign—have intensified. Federal officials have repeatedly warned about the potential impact of targeted misinformation on election outcomes and voter confidence.

The Yale guide walks a careful line on First Amendment considerations, acknowledging that constitutional protections rightfully shield much political speech, including some false statements. However, the authors identify specific scenarios where legal challenges to election disinformation might overcome First Amendment barriers.

These scenarios include deliberately false information about voting mechanics (such as incorrect polling locations or hours), impersonation of candidates or election officials, or disinformation particularly likely to undermine election integrity. The authors cite real-world examples, including misleading social media advertisements promoting “texting to vote” and robocalls impersonating candidates.

Electoral law experts note that while traditional remedies against voting interference have focused on criminal prosecution, civil remedies could provide an important supplementary approach, especially when criminal cases face high evidentiary barriers or resource constraints.

The MFIA Clinic’s guidance comes amid growing recognition that addressing election disinformation requires a multifaceted approach. While technology companies have implemented various content moderation policies, and federal agencies have expanded monitoring efforts, legal advocates have increasingly sought ways to hold bad actors accountable through civil litigation.

The white paper serves as a practical resource for attorneys contemplating legal action against election disinformation, offering strategies grounded in historical precedent while addressing modern challenges in the digital information landscape.