The First Amendment contemplates and protects a “marketplace of ideas.” We have no precedent for an information environment in which there is no marketplace–no “agora” where different ideas and perspectives contend with each other for acceptance.
What we have instead are information “silos”–a column in the New York Times recently quoted Robert Post, a Yale professor, for the observation that people have always been crazy, but the internet has allowed them to find each other.
In those silos, they talk only to each other.
Social media has enabled the widespread and instantaneous transmission of lies in the service of political gain, and we are seeing the results. The question is: what should we do?
One set of scholars has concluded that the damage being done by misinformation and propaganda outweighs the damage of censorship. Rick Hasen, perhaps the most pre-eminent scholar of election law, falls into that category:
Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.
I don’t know what Hasen considers “necessary reform,” but I’m skeptical.
I have always been a First Amendment purist, and I still agree with the balance struck by the Founders, who understood that–as pernicious and damaging as bad ideas can be–allowing government to determine which ideas get voiced is likely to be much more dangerous. (As a former ACLU colleague memorably put it, “Poison gas is a great weapon until the wind shifts.”)
That said, social media platforms aren’t government. Like brick-and-mortar private businesses, they can insist on certain behaviors by their customers. And like other private businesses, they can and should be regulated in the public interest. (At the very least, they should be required to apply their own rules consistently. People expressing concern/outrage over Twitter’s ban of Trump should be reminded that he would have encountered that ban much earlier had he been an ordinary user. Trump had flouted Twitter and Facebook rules for years.)
The Times column suggests we might learn from European approaches to issues of speech, including falsehoods and hate speech. Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. Europeans have decided that hate speech isn’t valuable public discourse– that racism isn’t an idea; it’s a form of discrimination.
The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal. Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.
The First Amendment was crafted for a political speech environment that was markedly different than today’s, as Tim Wu has argued. Government censorship was then the greatest threat to free speech. Today, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics” that humiliate, harass, discourage, and even destroy targeted speakers.”
Wu argues that Americans can no longer assume that the First Amendment is an adequate guarantee against malicious speech control and censorship. He points out that the marketplace of ideas has become corrupted by technologies “that facilitate the transmission of false information.”
American courts have long held that the best test of truth is the power of an idea to get itself accepted in the competition that characterizes a marketplace. They haven’t addressed what happens when there is no longer a functioning market–when citizens confine their communicative interactions to sites that depend for their profitability on confirming the biases of carefully targeted populations.
I certainly don’t think the answer is to dispense with–or water down– the First Amendment. But that Amendment was an effort to keep those with power from controlling information. In today’s information environment, platforms like Twitter, Facebook, etc. are as powerful and influential as government. Our challenge is to somehow rein in intentional propaganda and misinformation without throwing the baby out with the bathwater.
Any ideas how we do that?