Professor Ned Cavanagh’s essay, Countering the Big Lie: The Role of the Courts in the Post-Truth World, has been accepted for publication in the Cornell Law Review Online.

Here is an abstract of the piece:

During the administration of President Donald J. Trump, Americans witnessed an unprecedented assault on the truth by Trump and his political allies. Throughout his time in office (and even before), Trump lied to gain and maintain political support.  The biggest Big Lie, of course, was that 2020 election was stolen from him as a result of massive voter fraud in five swing states—Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. All of Trump’s court challenges to the 2020 election based on this lie failed.

Trump’s election lie, although it did not put him back in the White House, has inflicted serious, and now lasting, damage on our democratic institutions. Trump has created a post-truth world where facts no longer matter, thereby eroding trust in all branches of the government, including the courts. For Trump followers, the facts are irrelevant; only what Trump says matters. This view is not limited to Trump’s diehard “base.” Even mainline Republican legislators are embracing the Trump approach. Witness the attempts to reframe the events of January 6 not as a violent and lawless riot but rather simply as a peaceful exercise of free speech—in the face of overwhelming video and testimonial evidence to the contrary. Yet, other than losing his lawsuits, Trump has never been called to account for his baseless and irresponsible attempts to have the courts overturn the results of the 2020 Presidential election.

This essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short-shrift to Trump’s lawsuits but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest in its incipiency before it could take root among die-hard Trump supporters. This essay also suggests how the courts might more effectively handle future baseless and politically motivated election challenges in the post-truth world.