As a constitutional law professor, Wes Henricksen is no stranger to examining the fine lines between legality and harm. In his recent book, In Fraud We Trust: How Leaders in Politics, Business, and Media Profit from Lies—and How to Stop Them, he addresses the reasons why mass deception is often protected, an unsettling issue in American constitutional law.
Henricksen refers to the protection of mass deception as the “Fraud Law Paradox.” He explains that while fraud laws were developed hundreds of years ago and have changed very little, the ways in which we communicate and consume information have evolved dramatically.
“Of course the First Amendment is always going to stand hard and fast, as it should, to block any regulation of lies per se, but fraud is already unprotected under the First Amendment,” Henricksen said in a radio interview. “It’s always been understood that you can’t get away with defrauding other people and hide behind the First Amendment, yet that seems to be what is happening now.”
In Fraud We Trust addresses the tension between modern forms of mass deception and the outdated legal frameworks meant to regulate them. It highlights the reasons why large-scale fraud is carried out including financial profit, political gain, prevention of justice, and the falsification of history. Fraud is generally defined as the deception of another person for material gain or profit where injury is inflicted in the process. The vast majority of falsehoods are harmless and perfectly legal.
The book highlights the reality that mass deception, particularly when framed as political speech or mass persuasion, is often shielded by the First Amendment even when it results in widespread harm. The book expresses that public trust has eroded as a result of politicians on both sides of the aisle lying with such regularity, leaving many Americans deeply cynical.
“This issue has no political bent to it. It is non-political. Political lies are carried out by both sides on the aisle. There is no substitute to doing your own research and second-guessing what you think might sound like something that is true, maybe just because you wanted it to be true,” Henricksen said.
In Fraud We Trust provides examples of fraud on the public that exist everywhere. Specifically, it states that the fossil fuel industry long used PR firms and lobbyists to spread disinformation about oil’s role in climate change, sugar companies have misled the public about the dangers of high-fructose corn syrup, cigarette manufacturers have famously lied about the risks of tobacco, and social media influencers and media outlets have promoted false claims about the COVID-19 pandemic being a government hoax.
According to Henricksen, the legal system is beginning to confront how false political messaging fits or does not fit within the bounds of the First Amendment.
“Over a dozen states have already passed false political speech laws,” Henricksen said. “Regulating false political speech is something that state legislatures have already decided that they want to do, voters have decided that they want to do and there’s overwhelming support to at least hold some of the worst and provably false lies liable.”
In addition to exposing the depths of the problem, Henricksen gives readers a way forward. He proposes that we call these massive deceit campaigns by their proper name and “de-weaponize” the First Amendment by enacting new laws that protect the public from fraud.
“My solution is that fraud on the public is treated the same as one-on-one fraud, and once we do that, I think that would go a long way intotoward solving the problem. This does,” Henricksen said. He added, however, that “this will not mean that misinformation goes away.”
Henricksen has served as an Associate Professor at Barry University School of Law for nearly a decade. He is also a distinguished author with a strong commitment to constitutional law, particularly the First Amendment and its protections for free speech.
Henricksen has taught courses including Constitutional Law, First Amendment, Torts, and Securities Regulation at Barry since 2016. His dedication to teaching has been reflected by his award as Professor of the Year in 2018, 2019, and in 2022.
Henricksen graduated number one in his major and with summa cum laude honors at Washington State University, and received his J.D. from the University of Washington, where he served as the Executive Notes & Comments Editor on the Washington Law Review. Prior to joining the Barry Law faculty, Professor Henricksen clerked for the Hon. Bruce J. McGiverin at the U.S. District Court for the District of Puerto Rico, and spent a decade in private practice in Miami and San Diego.
Henricksen has worked, lived, or studied in Argentina, Bolivia, Chile, Colombia, and Peru, and is fluent in Spanish. He is admitted to the state bars of California, the District of Columbia, and Florida.
Henricksen has won awards for his teaching and scholarship, and his work has even been cited in testimony before the U.S. House of Representatives, underscoring his influence beyond academia. He was one of nine law professors selected to present his article, Scientific Knowledge Fraud, at the Stanford-Penn-Northwestern Junior Faculty Forum for Law and STEM at Northwestern University Pritzker School of Law.
Henricksen is the author of two books. As mentioned, his most recent one In Fraud We Trust, published by the University Press of Kansas, aims to offer solutions to the recent rise in falsehoods on digital platforms. He argues that the current laws in place have failed to keep up with the new ways that have emerged to carry out fraud on a large-scale and that new rules are necessary to make the fraud law framework effective in today’s digital world.
His other book, Making Law Review: A Guide to the Write-On Competition, offers guidance on the write-on competition, an annual contest through which law students earn spots on law review. Making Law Review explains how the competition works, and reveals the surprising and innovative techniques students have used to excel in it.
For those interested, Professor Henricksen’s most recent articles and publications are available on the Social Science Research Network.