Misinformation vs. Disinformation: What’s the Difference, and Are They Protected Speech?

Misinformation and disinformation are popular terms buzzing through many conversations, online and off. Both are commonly used to describe false content. But have you ever considered the differences? And when does the First Amendment come into play?

We answer these questions and more in this article.

Misinformation vs. disinformation: What’s the difference?

Although frequently used synonymously, misinformation and disinformation are not the same:

• Misinformation is false information disseminated with no intention to mislead or deceive. Typical examples could involve an inadvertent repost of an article with the wrong statistics or accidentally sharing the wrong homework due date with a classmate.
• Disinformation is false information that is purposefully spread to mislead others. Examples could include someone using intentionally falsified news reports, or a student using AI to create and share a fake study guide with errors to mislead classmates — while keeping an accurate version to ace the test.

As noted, the crucial element is intent: Disinformation is intentional, whereas misinformation is unintentional.

Does the First Amendment protect false information?

The First Amendment provides comprehensive protection for free speech, including the right to make false statements. In 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, which had made it a crime to falsely claim military honors (United States v. Alvarez). The court advised that content-based restrictions on speech — laws that treat different kinds of speech differently, depending on its content or subject matter — are subject to a high standard of review by the courts, known as strict scrutiny. Courts almost always deem these restrictions invalid, except in certain situations, such as fraud, defamation, incitement or perjury. The court also said that Congress had drafted the Stolen Valor Act too broadly, meaning it punished speech that is fully protected, such as bragging or exaggerating. Hence, using criminal penalties for this kind of speech crosses a constitutional line and goes against what free speech is all about. As the Supreme Court put it: “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” In other words, in a free country, you don’t jail someone for lying — you call them out with the truth.

This Supreme Court decision shows that even intentionally making false claims — in this case, about obtaining military honors — is often protected by the First Amendment.

It is important to note that the First Amendment applies only when the government is involved in regulating speech or expression. The First Amendment does not apply to private companies or social media platforms, which have the right to set their own rules about what content is allowed.

When is it possible for the government to restrict misinformation or disinformation?

Most false information is protected by law in situations when there is no clear or immediate harm. But courts have allowed restrictions on misinformation and disinformation in some cases, particularly when false information does cause harm.

For example:

• Defamation, or false statements that damage a person’s reputation: The First Amendment doesn’t protect defamation, and laws can allow people to seek financial compensation for false statements that harm their reputation. But defamation is narrowly defined under the laws of each state to ensure that people have the right to speak their minds — and even make minor errors — without fear of punishment.
• Fraud and false advertising, or misleading claims intended to deceive consumers: Consumer protection legislation may restrict or punish fraudulent claims or deceptive advertising.
• Incitement to imminent lawless action, or speech that incites someone to immediately break the law and commit unlawful acts: This speech is not protected by the First Amendment and is illegal under incitement laws, regardless of whether the speech is false or not.
• Perjury, or false statements made under oath: Perjury is considered a criminal offense and is not protected by the First Amendment because it undermines the integrity of the judicial process.

What about false information from official sources or officially approved misinformation?

Throughout U.S. history, governmental entities have occasionally issued inaccurate or deceptive statements. These events often raise significant ethical concerns about transparency and accountability.

Courts tend to be cautious about restricting government speech. However, legal restrictions typically apply when such speech directly violates certain constitutional rights, such as due process or the equal protection clause. Currently, there are few legal limits on false or misleading official statements, unless they cause specific, legally recognizable harm.

Does social media permit misinformation and disinformation?

Social media companies are private companies, so these platforms establish their own content policies, including restrictions on misinformation and disinformation. Crucially, the First Amendment applies only to government actions, not private enterprises such as social media companies.

RELATED: Does Government Regulation of Social Media Violate the First Amendment?

Nonetheless, there are also legal arguments around the government’s involvement in content control on social media, particularly when public officials alert platforms to offensive or deceptive content. Courts are currently debating how to strike a balance between these interactions and constitutional rights.

For example, in 2024, the Supreme Court dismissed a claim brought by social media users, noting that they could not prove the government pressured social media platforms to censor them (Murthy v. Missouri). That same year, the Supreme Court also affirmed that social media platforms have First Amendment rights and likely cannot be forced by states to host or keep specific content (NetChoice LLC v. Paxton and Moody v. NetChoice LLC).

What does this really mean? Essentially, more responsibility lands on the platforms themselves to decide what is true, harmful or allowed. In addition, government officials can still flag content, but they must avoid anything that feels like “telling platforms what to delete.”

How can misinformation and disinformation be identified?

The ability to recognize false and inaccurate information, and media literacy generally, has become increasingly important.

RELATED: How to Spot ‘Fake’ News: Tips to Detect Disinformation, Misinformation and Biased Content

Here are several methods for assessing information online or elsewhere:

• Check the source: Is it an anonymous account or a trusted news source?
• Examine several sources: If anything noteworthy is being reported by just one source, it might need more investigation.
• Watch out for emotive wording: Disinformation can evoke strong emotions.
• Verify the context and dates: When used out of context, old images or quotations can be deceptive.
• Check for updates or adjustments: When necessary, reliable sources will frequently provide them.

The bottom line on false information and the First Amendment

The First Amendment protects both disinformation and misinformation — although narrow exceptions exist. That said, courts are still exploring the legal bounds, especially when false information spreads online. Learning social media companies’ content policies and practicing digital literacy can help individuals identify and respond to harmful, misleading or false information.

Allison Matulli is a fellow for the First Amendment at Freedom Forum. She can be reached at [email protected].