How can a democracy committed to freedom of speech protect itself against damaging lies? That’s a tough and urgent question with which our nation must now grapple.
The Big Lie—still believed by one-half of Republicans—led to deaths on January 6th, and lies about Covid vaccines are “killing people,” affirmed Scientific American. Speed is part of their power. “Falsehoods are 70 percent more likely to be retweeted than the truth and reach their first 1,500 recipients six times faster,” finds MIT’s Media lab.
So, what’s a democracy to do when lies fly while truth crawls?
We can start by acknowledging that our First Amendment aimed not simply to protect an individual’s right to speak. It “was fashioned” also to serve a vital public function: “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” as clarified in a 1957 Supreme Court ruling.
But we fail in this public purpose if “freedom of speech” gets reduced a right to say whatever we please within a “marketplace of ideas”—a metaphor introduced more than a century ago by Justice Oliver Wendell Holmes, Jr.
At great peril, we become blind to the fact that all markets have rules.
Most of us appreciate rules protecting us against, say, the sale of unsafe drugs. Why wouldn’t we also see that democracy itself—our most cherished national value—requires rules to guard against the spread of dangerous lies?
In the past, rules assuring “fair and balanced” news coverage served us well. In 1949, The Federal Communications Commission introduced the Fairness Doctrine requiring broadcasters to present issues of public importance and from a range of viewpoints. Twenty years later, in its defense, Justice Byron White argued that “the people” have an overriding First Amendment right to “an uninhibited marketplace of ideas in which truth will ultimately prevail.”
But, in 1987 the Reagan administration killed the Fairness Doctrine on the grounds that increasingly diverse media assured access to opposing views.
Quickly, though, one-sided, fact-free—but highly profitable—talk radio and television took off. Sinclair broadcasting—once dominated by Rush Limbaugh—now reaches about 40 percent of America’s households. Since 2005, its profits have soared almost ninefold. And TV? This year, among those leaning Red, 93 percent cite Fox as their political news source, and among those leaning Blue, 87 to 95 percent cite NPR, New York Times, and MSNBC. Eighty-six percent report getting their news from digital devices. Social media is the main source for almost a quarter; and half report its use “at least sometimes.”
From these sources, Americans typically choose those aligned with their political orientation. Thus, the Court’s premise of an “unfettered interchange of ideas” no longer holds. Most do not hear opposing views from which truth can “ultimately prevail.”
Contributing to decline in democratic dialogue, money speaks loudly in today’s media marketplace. Harvard Professor Lawrence Lessig notes that the “free speech we liberals romanticize has always had humans standing behind it.” But today, “free speech is driven…by machines that craft speech based upon the behavior that is desired. Most commonly, that behavior is simply commercial—clicking an ad.”
Indeed, online advertising on over 20,000 websites poses disinformation risks while bringing $235 million in annual profits, finds a 2019 study by the Global Disinformation Index.
So, how do we stay true to our nation’s purpose laid out in the constitution’s preamble: to “promote the general Welfare” as we assure freedom of expression while also protecting our well being and democracy itself?
For one, we can seek lessons from countries ranking higher than we do in political and civil liberties. They demonstrate that protecting truthful communication and assuring democratic freedoms are not at odds.
Freedom House ranks New Zealand fourth in “global freedom scores,” while the U.S. falls behind sixty nations. Since 1989, New Zealand’s Broadcasting Standards Authority chaired by a judge has maintained radio and television standards. It responds to citizen complaints with full transparency online as to its reasoning, decisions (11 percent upheld), and appeal process.
Germany ranks nineteenth, also well above the U.S. Its 2017 Network Enforcement Act was amended last month to better enable users to report hate speech and fake news and to achieve timely removal—while adding an appeals process. Five years ago the EU introduced a media code of conduct, especially geared to fast removal of terrorist content on online platforms and websites.
While we have no comparable national strategy protecting us from lies, fourteen U.S. states have created media literacy curricula empowering students to detect misinformation. Plus, the Knight Foundation has invested almost $3 million in preparing journalists to identify misinformation and is creating a tool for “instant notifications of fact-checks during live events such as speeches and debates.” Available now to help sort fact from fiction is Factcheck.org from the Annenberg Public Policy Center.
Worldwide, democracy is in decline, with two-thirds of the world’s people living in autocracies, including “electoral autocracies.” May this sad news along with inspiration from some democracies’ creative responses, ignite action here to protect robust, truthful communication. Our democracy itself is at stake.