Free Speech Absurdity in the 21st Century

The popular perspective on the First Amendment is absolutist. “Congress shall make no law…abridging the freedom of speech, or of the press.” Seems straightforward. But spending any amount of time in the scholarship—legal, historical, and philosophical—quickly disabuses one of this adolescent view.

At the founding, the notion of free speech was rooted in precedents that were both rather narrow and rather obscure to us today: the older British concept of “parliamentary privilege” (immunity for any statement made during legislative sessions); religious sectarian tolerance; and repudiation of “prior censorship” (a license from the monarchy required to publish anything).

The understanding at the time was that that the First Amendment did not protect false statements. The uncontroversial assumption was that the First Amendment did not preclude laws against libel. Similarly, subsequent generations of jurisprudence have never seen laws against perjury, false commercial speech, obscenity, fraud, and so on as constitutionally problematic.

The Marketplace of Ideas

There are also uncertainties about what the founders’ various underlying theories about the First Amendment were. Was it principally about human dignity? A perquisite for patriots? Was its primary aim to formalize natural rights theory? To justify the Revolution? Or was it mainly about ensuring domestic stability amidst a diverse citizenry?

Most today would be surprised to hear that it was not about having a “marketplace of ideas.” The first mention of that vision appeared over a hundred years later, in a 1919 opinion by Justice Oliver Wendell Holmes. The closely-related notion of “counterspeech” as a means of getting to the truth was famously promoted by the philosopher John Stuart Mill in 1859, but similarly did not appear in US jurisprudence until Justice Louis Brandeis’ advocacy of “more speech” in 1927. For better or worse, the counterspeech doctrine has formed the backbone of First Amendment legal theory ever since that time.

But there is much reason for skepticism about the marketplace of ideas in the real world. Counterspeech is ineffective, for example, if it is not received by each hearer of the prior false speech; and today’s partisan echo chambers often ensure that that it is not. And is the marketplace of ideas on social media getting our society closer to truth?

The Law and Social Norms

But I sincerely am a First Amendment enthusiast. Our country undoubtedly has the freest speech in the world and in history; and speech is not free in many countries. I do think some changes are needed in the US; however, if I thought any change posed even a .001% chance that it would lead to a Soviet-style police state, I would not support it.

I have, though, had longstanding concerns about problematic speech, and a perception that there is much public confusion about free speech, especially among those on the libertarian right who are prone to fetishizing it. So, I found a few books and articles that advocate reassessment of free speech in our era, focusing especially on its relation to the so-called “democratic process.” I’ll relate some key insights I was able to glean from them, and then will conclude with some personal observations and ideas.

Before I plunge in, however, I think it’s worthwhile to establish one very key point about the First Amendment and free speech… one that took a while to sink in to my thick skull, but once it did, it made everything else a lot clearer.

It is that almost all public discourse that has anything to do with free speech—including cancel culture, hate speech, Section 230, political correctness, et cetera—has nothing to do with the First Amendment. The First Amendment only keeps the government from restricting speech. Which it rarely does, and in the foreseeable future is not likely to do.

Instead, most public commentary about free speech is argumentation over social norms. Over what actions we think are fair, or appropriate, or moral, or counterproductive. We’re all amateur theologians, competing to define the secular religion. It’s not about legality, not something for which you could ever be hauled into jail. Not about things that legislation has any possibility of addressing.

There are no official judges or verdicts—just the risk of being loudly howled at by people who disagree with you, with countless variations of “For shame!” Which is not to suggest that it is a mere tempest in a teapot; only that, when it comes down to it, no one is going to be legally compelled to do or refrain from doing anything. It’s frequently apparent that online commenters think that things like hate speech is—or could be made—illegal, but that is not going to happen in the US.

Survey of Smart People

This review of books and articles begins with legal historians’ views on the First Amendment. Next, contemporary public controversies are explored: political correctness, platforms, and weaponization of free speech. Then it’s back to legal theory, exploring ways that free speech jurisprudence might be fixed or at least better navigated. Finally, the new challenges brought by social media and fake news are addressed from a policy perspective.

After all of that, my own conclusions.

The Origins of Free Speech and Press, by David Bogen
What Did the First Amendment Originally Mean?, by Jud Campbell

I’ve already alluded to some insights I obtained from David Bogen’s 1983 article. Bogen discusses six sources contributing to the First Amendment: (1) parliamentary privilege, (2) abolition of prior censorship, (3) the pseudonymous essayist “Cato”, (4) the theory of natural rights, (5) the growth of religious toleration, and (6) states’ prerogative. As an aside, I note that the 4th source, natural rights, was rooted in social contract theory, which today is not held in high esteem. As to the 6th source, part of the motive for the First Amendment apparently was to clip the wings of the national government; after the twentieth century, that logic seems quaint, as the importance of state governments has diminished.

After describing each of these six sources, Bogen explains that the interpretation of the First Amendment subsequently evolved via application to specific problems through time, beginning with the Sedition Act of 1798. The Supreme Court’s modern interpretation emphasizes that “suppression of ideas is illegitimate because a democratic society bases its decisions on full and open discussion of all points of view,” and because “the possibility that government may decide wrongly concerning speech poses an unacceptable danger.” Bogen, however, concludes that:

Although the language and history of the first amendment support this interpretation, they do not compel it. The principle that suppression of ideas is not a legitimate government purpose is only one alternative of many readings equally well rooted in language and history.

Treading similar ground much more recently, Jud Campbell explains that the founders thought of natural rights and positive rights differently than we do today. Natural rights were not a set of determinate legal privileges or immunities that the government could not abridge. Campbell’s conclusion (pardon the longish quote):

For the drafters of the Bill of Rights, the First Amendment fit within this familiar tradition [of customary law]. Well-established principles about expressive freedom would limit Congress, and judges and juries could enforce these settled boundaries of governmental authority. But, otherwise, the First Amendment would leave the task of defining the public good to the people and their representatives. For the founders, judges could not create new limits on governmental authority. That development came a century and a half later as the Supreme Court began to strike down state and federal restrictions of speech in the 1930s. The vision embraced by the justices was still evolutionary — recognizing new constitutional principles over time. But going forward, courts, rather than legislatures, assumed primary responsibility for determining the scope of constitutionally enumerated natural rights.

This is when we began to lose touch with this part of our constitutional past. The rights recognized in the Bill of Rights all started looking the same, without distinctions between natural rights and positive rights. All of these rights, in turn, became trump cards that individuals began to play against legislative claims to the common good. Political settlements no longer mattered; judges were now supreme exponents of the Constitution. Questions of policy — questions about what types of laws promoted the general welfare — transformed into an abstruse web of legal doctrines. Rather than promoting engaged civil debate in the political sphere, invoking “rights” is now a way of shutting that debate down.

It is not disturbing that the common good has been sacrificed on the altar of ideology? (This is not something that your typical Constitution-worshipper will acknowledge.) Change is obviously needed.

But enough legal theory, for the moment anyway. Let’s turn to the live contemporary debates about public speech.

John Stuart Mill and Political Correctness, by Lackland Bloom

Political correctness remains at the very center of contemporary public debate about free speech. It comes up in a variety of forms and venues: on-campus controversy, cancel culture, diversity training, social media, US history, the media and entertainment establishments.

I have not seen a more fair, careful, and nuanced treatment of the phenomenon of political correctness than in this 2017 article by Lackland Bloom. In view of the emotion surrounding the issue, the huge amount of scholarly literature about Mill (the patron saint of libertarianism), and the huge amount of scholarly literature about political correctness, the article is quite an accomplishment, and my summary can’t do it justice here. But here are a few key points:

  • A starting point is to recognize that political correctness is, in Bloom’s words, “a recently enshrined norm of restriction.” It has been a short pendulum swing against a century of dramatic liberalization of speech.
  • Mill was less concerned about legal restrictions of free speech than about cultural intolerance. He feared tyranny of the majority, and would have disliked the chilling effect of political correctness.
  • Political correctness emerged amidst a relatively recent emphasis on the concept of equality, and upon certain strains of post-modernist thinking that equates use of language with action.
  • The influence of political correctness has a way of creeping outwards: for example, first, it excludes racial epithets; then, it prohibits criticism of race-based affirmative action.
  • It is not the case that all speech is constructive. And some is primarily harmful. The intolerant spurning of un-PC speech can itself be considered as a legitimate form of free speech.
  • Bloom does not challenge Mill’s overly-intellectual claim that every single dissident voice is important. Mill’s rationale is grounded in the marketplace of ideas concept (which is an analogy to the economic marketplace.)

Bloom evaluates the moral defensibility of different responses to politically-incorrect language: (a) to turn one’s back on the speaker; (b) to verbally attack it as outrageous; or (c) to argue against the speaker’s premise. Obviously, in an ideal world, the last response is the best. But in the real world, on both sides of the divide, people think that they already understand the well-worn contours of the debate, and that therefore discussion with the other side is pointless. On the left, stigmatizing or attacking or demonizing is often chosen as the most impactful response.

At the most extreme is calling out and “canceling” the speaker, e.g. via a social media “mob.” Attacking the person rather than the idea is a flawed strategy, because intimidation will not change any minds. It’s also ugly to watch, and often the punishment seems incommensurate with the “crime.” But (again) there’s nothing illegal about any of it, and, frankly, if you have fame or position, and you want to say something publicly about a sensitive issue, getting attacked is a risk that you have signed up to.

The ultimate “judge” in the more prominent cases usually is the employer, and the deciding factor is how much external “heat” that employer can stand. In extraordinary cases where an incident leads to a resignation, firing, or other such consequential effect, it is certainly unfortunate… though has it ever led to the subsequent inability of the victim to make a good living? (See that I am joining the fun here by offering a subjective assertion here about what our social norm should/should not be.)

Mill in fact did not assume that all discussion is helpful. In particular, he made clear that his arguments for liberty presupposed that the speakers had adequate education and maturity. Bloom acknowledges that “Mill clearly favored rational, moderate, and polite argument on the merits, but understood that in the real marketplace of ideas, that was often not the case.” I would venture to say that today it is only the case in a small minority of situations.
John Stuart Mill
(Mill, as it happens, was an atheist. During Mill’s time there were blasphemy laws in both the UK and the US. It is interesting to speculate what role Mill’s atheism played in his absolutist stance on welcoming every dissident voice, and whether today he would put the Church and the PC “religion” into the same category.)

The Free Speech Wars, C.L. Riley (Ed.)

This recent collection of essays provides a montage of the current landscape, focused especially on culture war. There are just two particular themes that I’d like to spotlight here: (1) the significance of “platforms”, and (2) the right’s weaponization of free speech.

1. Platforms. Complaints often arise about particular voices being denied the opportunity to be published or to speak in public. C.L. Riley has a wry yet incisive rejoinder:

The point is, of course, that nobody has a particular right to speak in a particular place, especially not a private space. I remain, as yet, sadly uninvited from giving the keynote speech at the Conservative Party conference or presenting the Oscars, but this does not mean that either organization has actually no-platformed me.

In the web era, the complaints can seem absurd. Any dissident, activist, or candidate for office in the US can put up a blog or website without fear of government persecution, and the public can easily and instantly access it for free. What is really being claimed, of course, is that the complainant thinks—or, his/her fans think—that he/she is not getting the attention that he/she “deserves.” With appeal to some or other social norm.

Who decides what will get center stage? There are of course many such stages—national news outlets, academic journals, social media, physical auditoriums—although a few of them are much more important than others. In the social media world, Donald Trump was (lawfully) banned by Mark Zuckerberg and by Jack Dorsey, because of Trump’s persistent lies about a stolen election. As I’ll discuss later, there are also many concerns about the algorithmic promotion of specific content in these platforms, determining what does or does not get to appear on the stage.

More subtly, journalistic decisions about the national news “agenda” influence which voices and factions get their narratives heard by the public. There is much scholarly literature on the subject, including deep indictments by critics like Noam Chomsky who accuse powerful ruling interests of restricting the media coverage agenda, to their own advantage.

It’s a complex topic. Here, I will only suggest that the marketplace of ideas arguably does not really exist outside of the major platforms. And those platforms’ owners have at least some power to decide what will be heard.

2. Weaponizing free speech. Deception has many pathways in our oft-named “post-truth” culture. Nina Lyon notes that

A problem for the existence of truth in a big and complex world is that information can be cherry-picked to support a baffling variety of stories.

No one would disagree with this. Yet, whenever people see something published, their reflex is to take it seriously. (Who, after all, has the time to research the truth of every public statement?) Which provides an opening for right-wing propagandists at Fox News, PragerU, and even conservative think tanks.

At the most basic (and vulgar) level, conservative media attacks political correctness on free speech grounds. Ben Whitham admonishes us to resist such arguments:

Contrary to free-speechists, we must refuse a ‘right’ to be publicly racist, misogynist, homophobic or transphobic. This is precisely what the current far-right movement – enabled by liberals – seeks to (re)produce. Speech is the currency of politics and, as Aristotle saw, the horizons of political possibility are negotiated through it. Centrist liberals, who pride themselves on their superior reasoning and pragmatic nous, have become the useful idiots of the far right, as the latter strives to redefine social norms in fascistic ways.

The right is quite effective at legitimating their ideas with cheap arguments: strawman, cherry picking, perversity, whataboutism, distraction. The bullshit works in part because people are offended by any suggestion that they themselves are fascists or racists. As Riley puts it:

When you have been used to dominance, equality feels like oppression, and when you have been used to pushing other people around with no regard for their feelings, any limits on your own behavior feels like an assault on your rights. A lot of this perceived threat comes from anxieties and concerns around speech and language. There is a worry, often expressed, that you cannot say anything these days. And this worry turns into anger: how dare you tell me what I can and cannot say.

The right’s indoctrination program leaves partisans fetishizing free speech and cloaking themselves in its mantle to defend America against liberal intolerance. Meanwhile, state Republicans today are drafting laws designed to squelch any discussion of critical race theory in schools. The irony is bitter: the same ideology that hallows free speech is trying to make some of it illegal. Free speech, except when we decree otherwise.

The Case Against Free Speech, by Brian Leiter

Let’s veer back now towards law and public policy. The left-leaning Brian Leiter, at the University of Chicago Law School, presents a philosophical (rather than legal) case for regulating public speech of a political or moral nature—what he refers to as “non-mundane” speech.

Leiter has an extremely negative view of the value of most non-mundane speech to society, even remarking at one point that “the world would be better off if it were not expressed.”

He anchors his analysis via comparison to a high-stakes setting where speech is tightly controlled in order to improve the chances of arriving at the truth: namely, jury trials. He then extends this analysis to the public realm in the US, carefully noting differences from the jury trial situation, and then concluding that the only reason not to strictly regulate public speech is that the government could not be trusted to do it properly.

Leiter describes some of the rules of evidence that requires judges to be “gatekeepers” for what the ordinary people on a jury can hear, to help them discover the truth, and so that nothing will impair their “epistemic task.”

No one thinks they should be exposed to a freewheeling marketplace of ideas, an unregulated and unrestricted presentation of evidence and arguments; instead, the basically untrustworthy laypeople are subjected to the paternalistic care of a judge, whose job it is to decide what they can safely hear that might actually facilitate their correct findings of fact, allowing for their cognitive infirmities and other biases. There is no free speech in the courtroom, and (almost) no one thinks there should be.

By contrast, when these same laypeople are asked to choose a President, someone who will decide American tax policy, whether to go to war, the correct approach to climate change, and who should get healthcare, the basic constitutional posture in the US is that everyone (whether person or corporate entity) should be able to say almost anything, and without any meaningful restrictions on the advantages that accrue to those with wealth and access to the major media of communication.

One key difference between the public sphere and the courtroom (which Leiter acknowledges) is that, in the public sphere, one of the legitimate purposes of free speech is the value to the individual’s dignity or happiness (what Leiter calls “eudaemonic” value.) Another difference is that the courtroom has, as he puts it, a reliable “epistemic arbiter” to ensure that the right kinds of speech are elicited and prevented. The public sphere most definitely does not have this kind of epistemic arbiter.

The analogy between the two situations is useful insofar as it reminds us that, given claims about free speech’s value in promoting true and accurate beliefs, the participants in the public unfortunately are ill-equipped for the task (a point also made 100 years ago by Walter Lippmann.) Leiter discusses the well-known cognitive failings of humans, illuminated by recent science, and states that

…emotional responses drive our evaluative judgments, yet our dispositions to have particular emotional responses are artefacts of biology, as well as familial and cultural influences, over which we have little or any autonomous control. Without a doubt, people identify with their values, and so regulation that infringes on those values affects people’s eudaemonic well-being. But it can hardly be considered an infringement on their autonomy to regulate expression of those values, given that those values do not themselves result from autonomous choices.

Leiter also brings in the sociological lens, citing the Frankfurt School idea that capitalism brainwashes us to want the things it can sell. Political experts undoubtedly use the same techniques as those employed by the advertising industry. He highlights key challenges for democracies wishing to regulate speech to maximize human well-being, given

  1. the epistemic quality of the major media, since they bear primary responsibility for beliefs that are widely accepted in the society at large;
  2. the effect that common cognitive biases have on decision-making;
  3. the effect that state sector or private propaganda (‘consumerism’ in the latter case) have on human conceptions of their basic and non-basic interests; and
  4. the extent to which citizens are able to evaluate the epistemic authority of different sources of information and analysis, since almost everything we believe, about climate change or traffic conditions on our commute to work, depends on relations of epistemic authority.

While he sees a definite and obvious need for regulating non-mundane speech, he is skeptical that this role can be delegated to the state. His concerns are rather theoretical:

In Marxist theory, the worry is that the State is just an instrumentality of the ruling class, and thus it will repress speech with an eye to the interests of those with money and property. At the other end of the political spectrum, public choice theory worries that the State will do the bidding of whatever well funded ‘interest’ group can capture its regulatory and legislative processes.

And he concludes with the wholly unsatisfying:

When it comes to trusting the State to regulate speech, we are being asked to trust the State in a domain where there is no meaningful remedy if that trust is abused, apart from violent resistance or revolution.

Here, it appears, Leiter has very little imagination. “No meaningful remedy”? Is it unthinkable that any kind of regulatory framework or tools could be devised? (We’ll come back to this.)

Resolving the First Amendment’s Civil War, by Martin Redish et al.
Liars, by Cass Sunstein

The next two works are firmly within the legal realm, by authors painstakingly searching for reasonable ways through the tangle of prior First Amendment precedents.

The two most important Supreme Court precedents for both analyses are worth mention. New York Times Co. v. Sullivan (1964) protects news organizations from libel suits when they publish false information about any public figure, as long as there is not “actual malice.” Some argue that it has encouraged a “tabloid” approach to political news. We can suppose, though, that the world would end if reporters were compelled to take an extra day to check their facts before smearing someone.

Then, in United States v. Alvarez (2012) the court went out of its way to protect a knowingly false claim by a local public official that he had received the Congressional Medal of Honor—a claim violating a law previously passed by Congress. What possible value such speech may have to warrant its protection is beyond me. Both decisions have a stench of unreasonableness about them, and both sit squarely in the way of regulating public speech.

Redish’s 2020 paper focuses on “political fraud,” resting their overall argument on the theory (from Meiklejohn) that constitutional protection of free expression is designed primarily to support democracy, and that therefore it should not protect speech that undermines that specific aim.

In the same way that economic fraud undermines the functioning of markets, these political frauds have undermined the “marketplace of ideas” as a means for achieving correct political outcomes.

Their paper proceeds very cautiously, and at the end arrives at an extremely conservative recommendation which would govern only the narrow circumstance of candidates lying during the ninety days preceding an election. And it can only be about an unambiguous factual falsehood that is material, and that was a knowing lie, and can be proved to be so. (Statements of opinion remain protected.) And only the opposing candidate may sue, and can only do so after the election, and the burden of proof is on the plaintiff. That’s going to stop political fraud, eh?

Redish’s legal timidity might be motivated by a calculation that only a very modest tweak of free speech jurisprudence can possibly be advocated at first, but if it succeeded, then it might then make more substantive corrections possible later. Or else, perhaps the authors are wary of potential technical criticisms from their fellow legal academics. Or both. Regardless, though, it reinforces my belief that substantive reforms of First Amendment interpretation can’t and won’t come from the legal establishment itself.

A slightly bolder and more creative approach was presented in the 2021 book by Cass Sunstein, who, incidentally, also co-wrote the book Nudge. Sunstein provides a useful four-part framework for evaluating different types of public falsehoods. For each of the four, he provides a spectrum of egregiousness. A summary:

1. State of Mind – from reasonable but mistaken, to reckless/negligent, to conscious lying
2. Magnitude of Harm – from nonexistent, to grave
3. Likelihood of Harm – from quite improbable, through certain
4. Timing of Harm – distant future, to near future, to imminent

Many combinations are of course possible for individual cases, and Sunstein suggests that the specific combination matters greatly as to how legitimate it would be to regulate it.

One of his key arguments in the book is that when actual lies are involved (State of Mind), the government should be able to impose regulation on the basis of a weaker demonstration of harm than is required for unintentional falsehoods. Concretely, he proposes that if State of Mind is a conscious lie, then just a “medium” Magnitude of Harm should justify government regulation of such speech. Though when Likelihood is low or Timing is distant, the need is more ambiguous.

He summarizes his philosophy with this dictum:

False statements are not constitutionally protected if the government can show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route.

Examples he gives for the “more speech-protective route” apply mainly to online information, and include: labeling and links (e.g. “this has been reviewed as Misleading” with a link to more information); disclosures; disclaimers; and “uses of choice architecture.” (He does not specify here what the last item means, but it comes straight from his book Nudge.) The main point is that government does not necessarily need to censor or punish in order to regulate.

He makes several strong points about the cancerous effect of public lying. It may distort people’s understanding of fundamental questions. Furthermore,

If politicians lie, they induce a kind of democratic vertigo. When citizens learn that a leader has lied to them, many of them will feel rage. After a while, they might become indifferent. They might well tune out. In either case, leaders who lie cut the legs out from under democratic processes by making it difficult or impossible for citizens to know whom to trust. They discredit the very idea of self-government.

Social Media and the Public Interest, by Philip Napoli

Philip Napoli wrote an excellent (if dry) public policy analysis, focused principally on “fake news.”

…Social media platforms have affected the news ecosystem in ways that undermine the likelihood (however slim it already may have been) that true and high-quality news and information will overcome false and low-quality news and information.

And he underlines the stakes by including a quote from legal scholar Larissa Lidsky:

“The ideal of democratic self-governance…makes no sense unless one assumes that citizens will generally make rational choices to govern the fate of the nation. If the majority of citizens make policy choices based on lies, half-truths, or propaganda, sovereignty lies not with the people but with the purveyors of disinformation. If this is the case, democracy is both impossible and undesirable.”

Before getting into Napoli’s analysis, I should say a couple things about the relation between news and free speech (beyond the rote fact that press freedom is also in the First Amendment.) It could be argued that news is the most important kind of public speech. Questions about definitions and objectives can be raised, of course. Not least of which is: how beneficial, really, are news stories to the democratic process? What we can at least say, though, is that news is certainly more important than the food fights amongst individuals on social media. We should also remember that free speech is not merely about the words that are published in a news piece, but also the decisions about what to publish and how to frame it.

Let’s also break down (at least very loosely) what we mean by “news” and by “fake news.” As the amount of investigative journalism has shrunk dramatically, the news at most outlets becomes ever more derivative of reporting from a few majors and wire services. Moreover, the opinion side of news has expanded dramatically and the line between opinion and objective news has blurred. Opinion undoubtedly has a major effect on voters’ beliefs. As for fake news, at one end of the spectrum this includes pure-fiction conspiracy theories, usually highly partisan. But it also includes what might be termed propaganda, consisting of unethical rhetoric, fallacious argumentation, scurrilous attacks, etc.

Napoli recounts the recent evolution of the media space: the partisan silos that have emerged, starting with cable news and then via the internet; the increasing reliance on social media for news access; the platforms’ algorithmic selection of content for each user; and, critically, the trend toward audience-centric journalism, driven by what will get clicks/shares/likes rather than by what is important. He notes:

Commonly identified news values include the unexpected (stories that are in some way surprising), the power elite (stories that focus on powerful individuals, organizations, or institutions), timeliness (stories that have occurred recently), conflict (stories involving opposing individuals or forces), and proximity (stories that are geographically near the news audience). More recent analyses have identified celebrity and entertainment as core news values, a reflection of the extent to which economic and competitive pressures have pushed the news values that drive many news organizations.

Social media has created a “push” dynamic for news, where individuals are less likely to proactively search for information they want (“pull”), and instead are incessantly presented with an array of new stories and headlines to click on. A college student notoriously commented, “If the news is that important, it will find me.” The experience is passive, and time spent in individual stories is short.

Napoli examines the marketplace of ideas concept, the ways that it is faulty, and the ways that technology has been undermining the counterspeech doctrine:

  • Diminished resources for legitimate news. Economic challenges, disappearing newspapers, smaller newsrooms, parasitic journalism.
  • Diminished gatekeeping and distribution barriers. Fake news now has any number of online outlets, and social media companies remove very little outside of pornography, criminality, and the like.
  • Increased ability to target the most impressionable. Platforms enable microtargeting of right- or left-leaning news consumers (or more radical factions).
  • Diminished likelihood of being exposed to factual counterspeech. “Filter bubbles” are created via individual and algorithmic content personalization. Fact checks of fake news almost never reach their consumers. (Compare this to the period of the Fairness Doctrine, when counterspeech was broadcast on the same platform and at roughly the same time as the original speech.)
  • Diminished ability to distinguish between legitimate and false news. People lack the necessary information as to the quality of the product they are consuming, particularly on news feeds where legitimate stories appear alongside fake news.
  • The enhanced speed at which false news can travel. The news cycle has been compressed, and false stories have been shown on average to travel faster and get shared more than legitimate stories.

Napoli recounts the past century’s history of communications regulation motivated by the public interest, which has not, so far, been extended toward social media. Social media companies have promoted a narrative of hyper-individualized autonomy. In contrast, Napoli suggests that a kind of algorithmic “paternalism” should be implemented, grounded in public-interest principles such as content diversity and fact-checking.

The approach Napoli recommends is to institute media “governance”, largely in forms of industry self-regulation. As an example, he cites a new fact-checking network that enforces accreditation standards on all participants, and he advocates broadening the scope of this model. He comments:

Such a model would certainly diminish the quantity of news that circulates on social media and probably the consumption of news through social media as well. If that is a by-product of this proposed initiative, that is fine too.

I think Napoli’s policy ideas are substantive, though still frustratingly timid. He suggests weakly that, while the First Amendment commands that we not abridge freedom of speech, Congress should not be shy about making laws to “enhance” the free speech environment. Yet he is cautious about the idea of legislative action, perhaps based upon his view of political reality in the US.


So, where does all of this leave us? As may be apparent, I believe that in our rapidly-evolving era we would be wise to start regulating speech, however difficult our system makes it. I should explain why.

The explanation must start with the realities of our sacred cow, democracy. Information and knowledge—about the problems our country faces, and about what our government could/can’t do about them—are central in the democratic process. But as Lippmann, Achen/Bartels, and many others point out or have demonstrated, US citizens are incapable of evaluating public policy. (It’s not that they are unintelligent so much as that they are focused on, and good at, other things.) Achen and Bartels warn against the fanciful image of democracy, arguing that

…a realistic theory of democracy must be built, not on the French Enlightenment, on British liberalism, or on American Progressivism, with their devotion to human rationality and monadic individualism, but instead on the critics of those traditions…

I’ll come back to this in a moment. My point here is not to persuade anyone that we need a new Constitution or form of government, but rather to encourage you to take a step back from the entire political-media complex, and ask critically whether it is doing what our country needs. If you watch and think about this, it should be apparent that we have a public discourse that is dysfunctional and is not leading to sensible governance. Outside of the electoral horse races, the political-media complex doesn’t inform citizens in any meaningful way. And it allows bad actors to manipulate us, without penalty and without our cognizance.

Capitalism has been left to run amok in our media sector, and the quality of news (except as mass entertainment) continues to degrade. Media isn’t and shouldn’t be an ordinary product market; it’s supposed to be the information lifeblood of our democracy. Regardless, the players in it are led exclusively by their ingrained financial and career interests. That’s harmless for sports and business news, and also for mundane conversations occurring on social media. But for the cultural and political realm in the past three to four decades, laissez-faire has produced bitter polarization, a culture of outrage, and risks to our future.

And it can only be regarded as a self-inflicted wound. Citizens had strong differences of opinion throughout the 20th century, but modern media technology has created echo chambers, enabled the most extreme voices and opportunists, and generated a poisonous atmosphere where civil debate about anything is made impossible. True, few could have predicted this outcome thirty years ago; however, as it unfolds, we remain mired in the pathetic, irrelevant “marketplace of ideas” ideology. If we won’t do something about it quickly, history is going to heap blame upon us.

Risks to our future, like what? Well, there’s our inability to take substantive actions on climate change, and on eminently achievable health care reforms. The general drowning out of moderate voices. The discrediting of liberal democracy in the eyes of other nations. And, although the cause-effect isn’t a straight line, we’ve seen tolerance of lies and fake news creating pathways to executive aggrandizement, and it theoretically could even lead to a strong-armed takeover of the US government.

But can speech in fact be regulated? The feeble steps ventured by the above authors provoke doubt. For starters, there’s the past century of First Amendment judicial philosophy to contend with. And any legislative moves, however sincerely motivated by the common good, would be attacked loudly and relentlessly by the right-wing media machines.

Meanwhile, we’ve moved even further in the wrong direction with the Supreme Court’s Citizens United (2010) decision, which deregulated free speech rights for corporations, further drowning out regular citizens’ speech. And compare the speech of a voter to “speech” by Charles Koch, who has spent millions to fund libertarian think tanks, that publish the papers he wants that attract graduate students and Fox News journalists; and who gives Republican candidates war chests to spend on political media. It’s no coincidence that wealth inequality in the US has gotten as high as it’s ever been, and is still increasing.

Regulating problematic speech isn’t the only medicine for these ills, but the argument can be made that it is a lynchpin.

Certainly, let’s implement Napoli’s media governance ideas, and Redish’s election-speech rules. Let’s see more and much bolder constitutional scholarship that challenges assumptions and breaks the crippling inertia. As Sunstein suggests, lies can and should be stopped. And let’s get experts in there to overcome Congress’s frightened dithering about Section 230, and start telling social media companies what they cannot do and must do.

Free speech absolutists do not want this discussion to occur at all. And they are quick to predict nightmare scenarios. But I have yet to hear one that is plausible. Just as an extreme illustration, let’s imagine that Facebook, Twitter, and YouTube were completely shut down, overnight. Would US democracy fail? Would we no longer know who to vote for? Or, imagine if hate speech laws were strengthened. Would we then have a Soviet-style police state? I won’t go on, as I would not want to be accused of creating strawmen and then knocking them down. But if you feel a tug of anxiety about speech regulation, stop and examine it closely. Ask yourself what you think is the worst that could happen.

And finally… As critical as legal regulation is, it has to be complemented with a soft component. In particular, our social norms need a hard shift in an intolerant direction. This won’t be easy, as it goes against the grain of Enlightenment thinking. As Achen/Bartels noted, assumptions about individualism and rationality are deep within all of us, and are nurtured by our vanity. “My opinion is as important and valuable as anyone else’s.” It’s something we all need to unlearn, or at least dial back.

From the standpoint of civilizational history, free speech rights have been a major, hard-won achievement. But it’s gotten well out of hand.

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