The article is here; the introduction:
We are inundated with lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere have allowed falsehoods to be amplified, monetized, targeted, and spread around the world at a speed and scale Without precedents. The consequences for democracy, public health and social harmony are emerging and serious.
Misinformation represents one of the most vexing challenges to content moderation on social media (and outside of it, like cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling fundamental political discourse, and because misinformation often resists automated enforcement, it cannot be removed or countered as quickly or cleanly as it spreads. Government regulation of disinformation raises particular concerns, both because public officials can be particularly susceptible to political bias and because even blatant lies enjoy a measure of constitutional protection.
The United States’ orthodox constitutional response to harmful speech, including false speech, is counterspeech. As Justice Brandeis wrote in his canonical concurring opinion in Whitney v. California“[i]If there were time to expose falsehoods and errors through discussion, to ward off evil through educational processes, the remedy to be applied is more speech, not forced silence.” The idea that corrective discourse is preferable to censorship resonates with Judge Holmes’ famous statement that “the best test of truth is the ability of thought to gain acceptance in the competition of the marketplace.” The digital age has revealed that Holmes’ aphorism is more absurd than ever, but he was prescient in saying “[t]This, at any rate, is the theory of our Constitution.” So it has become.
Yet, there are reasons to think that American constitutional law may not leave as much room for counterspeech as the problem of misinformation requires. Prior to 2011, Arizona had a public campaign finance law under which candidates for state office who entered the system could receive additional state matching funds above the default amount in proportion to money spent above that amount by an opponent financed privately or by independent supporters of the opponent. The law was successfully challenged as a violation of the First Amendment. Instead of treating the additional spending as a form of government speech – and, in this case, counter-speech – that the government could direct at will, the Supreme Court treated the government as impermissible punishment of privately funded candidate speech .
Taken seriously, the Arizona case, Freedom Club PAC of the Arizona Free Enterprise Fund v. Bennett, seems to imply that the government cannot employ its resources to counter or dispel the speech of identified private speakers. The idea that government should adopt a neutral attitude toward competing ideas may lie somewhere in Justice Jackson’s famous identification that “no official, high or petty, can prescribe what is to be orthodox in politics, nationalism, religion or matters of opinion”. ” as the most fixed star in the American constitutional constellation. At the same time, the Supreme Court has openly stated that “government speech is not limited by the free speech clause” of the First Amendment. In other words, a line of the doctrine of Supreme Court sees government counterspeech as impermissible propaganda or punishment of speakers, and another sees it as unfettered government expression.
Resolving the apparent tension between these two lines of doctrine is important for evaluating the range of possible responses to the disinformation crisis. Some of the most promising possibilities for tackling disinformation involve the use of public resources. For example, Ethan Zuckerman has proposed that the government impose taxes on digital advertising to support independent, public service digital media. Others have advocated applying the now-defunct fairness doctrine to counter low-value, false, or one-sided speech on internet platforms. Does the First Amendment allow the government to use its speech to say that a private individual’s speech is wrong, or to order others to do the same? If so, under what conditions and constraints can it do so?
Any satisfactory answer to these questions requires an evaluation of the constitutional status of government propaganda. Propaganda has a bad reputation, but governments engage in it pervasively, from routine press conferences to public school curricula to campaigns to promote political positions or industry. It cannot in itself be illegal for governments to push the political views of public officials, even if they expend resources to do so. At the same time, it is easy to imagine purely partisan or self-serving examples of government speech – propaganda, that is – that would be so abusive as to exceed the reasonable limits of state power.
As I explain below, distinguishing impermissible from permissible cases of government propaganda requires a functional analysis that relies on several factors: the purpose of the government’s speech; its degree of separation from the “private” speech of public officials; its transparency regarding its source; the availability of alternative information channels; its electoral implications; and what I call the “generality” of the discourse, or the degree to which it is directed at particular individuals or identity groups. Government speech need not be neutral – how could it be? – but ideally it shouldn’t be personal.
It would be fair to object that such an investigation into the “totality of the circumstances” is unmanageable by judges. This may be the case, but there are still ways in which it is helpful to think intentionally around these principles. Judges might, for example, be able to use these factors as part of a kind of constitutional circumvention investigation that helps shape existing First Amendment categories. And, of course, the judges don’t necessarily have to be the audience. It is important to develop principles of public morality that constrain and motivate the behavior of government officials even in the absence of judicial review. Indeed, even when judicial review is appropriate, the political development of such principles should normally precede judicial involvement and shape the exercise of judicial power.
More generally, tailoring the inquiry to questions of justiciability tends to reinforce the pernicious idea that the appropriateness of government speech depends on violating the rights of an objecting listener or competitor. As the case of Arizona public finances demonstrates, we have come to understand free speech rights through the “pathological perspective” memorably identified by Vince Blasi, where the measure of a right is the dystopian world that would result from its wanton abuse by government officials. This is a mistake. Governance pathologies can run in both directions. We should give at least as much attention to the kinds of constitutional rules needed to make government effective as we do to the kinds of rules needed to avert tyranny.