Free Expression and Fake News

 

Does the “Marketplace of Ideas” Metaphor Still Apply?

Social media networks have come under fire for their role in recent election controversies.  Facebook CEO Mark Zuckerberg indicated during Congressional testimony that some form of regulation of social media was “inevitable” after the revelation that his company shared users’ private information with a data mining company, Cambridge Analytica, which the Trump campaign used during the 2016 presidential election (Kelly, 2018, April 11).  Yet, in a separate controversy over a Russian company’s placement of fake news stories on social media platforms during the 2016 election season, the problem is not so easily addressed through new regulation.

Rather than engaging in content-based regulation of free expression, even if the speech in question is patently false, it has become axiomatic in the history of U.S. jurisprudence to instead rely on the “marketplace of ideas” metaphor, which assumes that the truth will emerge in any free exchange of thoughts.  However, in the so-called age of “post-truth,” knowing the difference between real and fake news–as well as truth and falsity, has become increasingly problematic (see McIntyre, 2018).   In the realm of social media it seems that the nature of fake news has vexed the very notion of truth itself and the validity of certain forms of knowledge over others.  While institutions of journalism employ empiricism in the reporting of information and the presentation of facts, fake news comes in a barrage of memes and tweets and provides a form of discourse in which no perspective is any more or less credible than any other.  In post-truth everything is relative; there is no right or wrong, fact or falsity, truth or lie.  In which case, we might reasonably ask if the marketplace of ideas metaphor has outlived its usefulness?

Regulating truth and falsity: Let the market decide

The First Amendment to the U.S. Constitution does not regulate truth or falsity.  Rather, it provides that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.  (U.S. Const., Amend. I)

Only in extremely rare circumstances–such as blackmail, fraud, child pornography, harassment or incitement–can criminal penalties be imposed on speech.  Moreover, political speech in particular is at the heart of what the First Amendment is supposed to protect, and political speech is often opinion, or belief in something that cannot necessarily be proven true or false.  Thus, speech that includes false information, or lies, is most often protected.

Justice Oliver Wendell Holmes said in his famous dissenting opinion in Abrams v. U.S. (1919) that the “best test of truth” is its ability to win acceptance in the market.  In an oft-cited concurring opinion in Whitney v. California (1927), Justice Louis Brandeis said that the simple remedy to address falsehood, fallacies, and lies in the marketplace of ideas is more speech–speech that is true.  The U.S. Supreme Court referred to Brandeis’s application of the marketplace of ideas as recently as its decision in U.S. v. Alvarez (2012), noting that the proper response to unreasoned speech is other speech that is rational and enlightened; “to the straightout lie” the answer should be “the simple truth.”

Less popular in U.S. jurisprudence is Alexander Meiklejohn’s (1948) argument that the marketplace of ideas metaphor is useless for truth-testing, as

there are no standards for determining the difference between the true and the false.   The truth is what a man or an interest or a nation can get away with.  That dependence upon intellectual laissez-faire, more than any other single factor, has destroyed the foundations of our national education, has robbed of their meaning such terms as “reasonableness” and “intelligence,” and “devotion to the general welfare.”  It has made intellectual freedom indistinguishable from intellectual license.  (quoted in Blasi, 2016, pp. 363-364)

An educated public in an ill-informed age

Justice Brandeis himself said that the “process of education” is the key to making the marketplace of ideas metaphor work (concurring opinion, Whitney v. California, 1927). People need to be educated, willing and able to engage in critical discourse.  However, Head et al. (2018) found that nearly half of college students did not feel comfortable telling the differences between real and fake news on social media; even more concerning, 36 percent distrusted all media because of the possibility of misinformation.

Yet the Supreme Court has recognized the vital role that news media play in educating the public on matters of public concern.  As Justice Potter Stewart said in a concurring opinion in New York Times v. U.S. (1971), “without an informed press there cannot be an enlightened people.”  While there are professional codes of ethics for journalists, such as those provided by the Society of Professional Journalists and Radio Television Digital News Association, there are none for everyday social media users or social media platforms.  If only journalists who subscribe to professional codes of ethics are accountable for reporting the truth, it will matter little if people are relying on fake news manufactured on social media.

Interactive computer service operators, including social media networks, do not have broadly accepted ethical codes and are not accountable under the law, as Section 230 of the Communications Decency Act (1996) affords them broad immunity for third-party content appearing on their services.  Furthermore, it is difficult for the government to enforce any kind of moral accountability for fake news and misinformation taking place on social media due to the commercial and private nature of this activity.  As such, it is up to social media users to be aware and understand that news and information appearing on these platforms is not necessarily vetted or valid and is not the responsibility of the service provider.

Self-Regulating the News

Self-regulation has emerged as another option to deal with the fake news quagmire.  So called news-ratings agencies, such as NewsGuard, offer a web browser plugin, which gives news consumers access to their rating system for determining whether a news outlet is a credible source for journalism or whether it is fake news (see Oremus, 2019, Jan. 25).  While NewsGuard has received favorable reviews from some well-established national news outlets, such as The New York Times and National Public Radio (NPR), critical questions remain about how these devices would determine what is fake news.  As professors Marcus and Davis (2018, Oct. 21) explained in a recent New York Times op-ed, the idea that artificial intelligence platforms would be able to detect fake news “would require a number of major in advances in A.I., taking us far beyond what has so far been invented.”  Moreover, algorithms that would be employed to detect fake news are imperfect when it comes to the detection of context and nuance, resulting in “panoptic missorts” with troubling results (see Blevins, 2016).  Relying on algorithmic solutions to address the problems that media technologies create seems to off-load the responsibility for critical thinking and informed consumption back onto the market, rather than within the human minds where it ought to belong.  We need critical media literacy – not another app.

After the fake news phenomenon in 2016, ten states in the U.S. have introduced legislation promoting media literacy (see Walsh, 2019, p. 17).  While this is a useful start, it will be vital to not only see that these kinds of bills are passed, but also–more importantly–that they are not watered down with the basics of digital media use, as they need to include a strong critical component about how to consume news and information if the marketplace of ideas is to truly work.

About the author: Dr. Jeffrey Layne Blevins (Ph.D., Ohio University) is an associate professor and head of the Journalism Department at the University of Cincinnati, where he teaches media law and ethics.  He is a frequent opinion contributor for The Cincinnati Enquirer and other news media.

Featured image: Photo by the author, from a 2018 event in Cincinnati.

References

Abrams v. U.S., 250 U.S. 616, (1919).

Blasi, V.  (2016).  Freedom of Speech in the History of Ideas: Landmark Cases, Historic Essays, and Recent Developments.  St. Paul, MN: West Academic Publishing.

Blevins, J. L. (2016).  Panoptic Missorts and the Hegemony of U.S. Data Privacy Policy.  The Political Economy of Communication, Vol. 4, No. 2 (pp. 18-33).

Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

Kelly, E.  (2018, April 11).  Zuckerberg: Federal regulation of Facebook ‘inevitable.’  USA Today.

Marcus, G. & David, E.  (2018, Oct. 21).  A.I. Won’t Fix Fake News.  The New York Times (p. SR 6).

McIntyre, L.  (2018).  Post-Truth.  Cambridge, MA: MIT Press.

Meiklejohn, A.  (1948).  Free Speech and Its Relation to Self-Government.  New York, NY: Harper & Row.

New York Times v. U.S., 403 U.S. 713 (1971).

Oremus, W.  (2019, Jan. 25).  Just Trust Us: In the era of fake news, a cottage industry of start-ups is competing to turn media credibility into a booming business. Do we really want that?  Slate.

U.S. v. Alvarez, 132 S. Ct. 2537 (2012).

Walsh, L.  (2019).  Teaching Truth: On multiple fronts, regulation and education battle the spread of misinformation.  Quill, Vol. 107, No. 1 (pp. 17-20).

Whitney v. California, 274 U.S. 357 (1927).