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The Misinformation


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NYU Abu Dhabi and NYU Shanghai

MISINFORMATION IS AS OLD AS CIVILIZATION. Our “great books” abound with instances of information being crafted and disseminated with a view to mislead or deceive citizens or subjects. In these accounts, the great question is when deception is justified. At times, the tale is a cautionary one, as in Tacitus’ histories which indict the devious and the gullible in equal measure. At other times, deception is deemed a necessary means of control. Consider, for instance, Machiavelli’s naughty observation in his Discourses on the “mode” in which the Romans took auspices so as to “make the soldiers go confidently into the fight”. Or recall that most famous example of all, the “noble lie” in Plato’s Republic.


We are now, however, in an entirely new era. The reach and effect of misinformation have been revolutionized by two developments.


The first is technological change. In ages past, speech was limited by the reach of one’s voice, the size of one’s linguistic community, by the taste of one’s patrons, and by the heavy costs of printing and distributing material across vast distances. These barriers to communication have all but vanished. The output of "keyboard warriors," "bot nets," and "meme lords" travel the globe freely and instantly—and anonymously to boot.


The second change is the valorization of free speech. The degree varies but liberal democracies typically champion "the marketplace of ideas." That is, they believe that unrestricted speech is essential to the discovery of truth, the articulation of interests, and the organization and expression of sentiment. As a consequence, the business of adjudicating the rapidly expanding information flows described above is left solely to the private and civil sphere.


The loosening of public control over the flow as well as the content of information has had a striking effect on public life. Today, substantial sections of the population believe “alternative facts” that range from the surreal (e.g., his “missing” birth certificate) to the deadly serious (e.g., climate change is a “hoax”). The cumulative impact is that we find ourselves confronting what former president Barack Obama has described as an “epistemological crisis”.


The liberal response to this development takes two related forms.


The first is to emphasize "counter-speech." This is the view espoused in United States v. Alvarez (2012) where Justice Kennedy declared that “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the "simple truth." That this stout defense of speech against "content-based restrictions" should have been followed by Trump’s campaign and presidency is deliciously ironic. The experience may—or at least should—teach us that when the stakes are high, competitors may not behave fairly; those with much to gain or lose can deploy resources and skills that distort the functioning of markets.


The second response has been to acknowledge the risk of market failure, but to place the burden of regulating speech on consumers and corporations. Presently, this is being done by excluding "bad actors" or at least labeling them as such. This approach is dubious because it grants corporations, that are neither transparent nor publicly accountable, unchecked power to impose "social death." Precisely for this reason, this strategy is unlikely to go unopposed for long. Given the stakes involved, those deemed "bad actors" will eventually establish their own channels of communication. In the way that Roger Ailes disrupted the cable news business two decades ago, we ought to expect a digital equivalent of Fox News making its appearance soon enough.


The foregoing analysis leads to a simple conclusion: if liberal democracies genuinely wish to address the misinformation revolution underway, they will have to partake in the business of publicly regulating the marketplace of ideas.


To see what this entails it may be worth reflecting on Singapore’s pioneering Protection from Online Falsehoods and Manipulation Act (POFMA). As I lack the space to enter into details here, I only offer three broad observations. First, POFMA is directed at "knowingly" publishing a "false statement of fact" (as well as "misleading" representations of fact). Second, it permits appeals to the relevant Minister and subsequently to the High Court, both of whom are supposed to adjudicate the violation using a "reasonable person" standard. Third, when a violation occurs, the violator can be directed to issue a correction, display a rebuttal, and can even be enjoined to cease communicating the false statement in or to Singapore. Critically, POFMA also reaches the intermediary—the service provider—which may also be ordered to display a correction or rebuttal and may be directed to "disable" access to an "online location" that makes false statements repeatedly.


Now, I am not proposing that the United States should adopt POFMA, much less that POFMA has been an unmitigated success (the elusive, ever-mutating nature of misinformation has, for now, made it more symbolic than effective). The point here is to think about the framework it establishes. It creates a standard, a competent authority, and a sliding scale of sanctions ranging from corrections to access blocks in order to stem misinformation. Might we learn from this model?


The prevailing interpretation of the First Amendment certainly makes it very difficult to envision a law like POFMA passing constitutional muster in the United States. From List v. Ohio Elections Comm’n (2014), which struck down an Ohio law punishing "false or reckless" campaign speech, we can identify three concerns. The first is epistemological: "there is no clear way to determine whether a political statement is a lie or the truth." The second is political: "we do not want the Government deciding what is political truth—for fear that the Government might persecute those who criticize it." The third is moral: limits on speech should not be "more burdensome than necessary."


In this short note, I cannot address these concerns in any detail. But, as a prelude to our discussion, I want to make three points aimed at allaying these concerns. First, though we may not always know what is true, we may have greater certainty about what is false, especially when we limit the inquiry to facts. Second, it is not essential that the authority for adjudicating falsehoods be vested in the government. It is possible to envision a regulatory institution that is insulated from direct and organized political pressure. Third, the powers given to such an authority could be minimal, restricted for instance to requiring the publishing of corrections. Alternately, in some domains, such as public health, it may make sense to grant this authority censorial powers, subject for instance to a consensus among expert advisors.


Many caveats will be necessary to make such a framework practicable in the American context. But there is no escaping the fundamental normative issue at stake here. Legislation along the lines of POFMA will evoke a sharp response from those who side with Justice Kennedy’s claim in Alvarez that “false factual statements serve useful human objectives in many contexts”. But, perhaps, as the full public cost of this permissive stance makes itself felt—whether in the false claims that exacerbate public health crises or hamper meaningful responses to climate change—we may find, as societies often do—that we must adapt our ideas to our changed circumstances. Singapore may be, in this respect, the canary in the coalmine. Or at least so I shall argue.

Rahul Sagar will present "The Misinformation Revolution (and What To Do About It) on March 25, 5:00-6:30 pm.

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