Free Speech

"What Cheap Speech Has Done: (Greater) Equality and Its Discontents"

I'm serializing a forthcoming law review article of mine.


You can read the latest draft (which is forthcoming in a UC Davis Law Review symposium); but I thought I'd also serialize it here. To begin, with the Introduction (minus many of the footnotes).

* * *

"Freedom of the press," A.J. Liebling famously said in 1960, "is guaranteed only to those who own one." Others elaborated: The "press … has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events." "[T]he power to inform the American people and shape public opinion" has been "place[d] in a few hands."

"[O]n national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis." "[T]he public has lost any ability to respond or to contribute in a meaningful way to the debate on issues." Where is true freedom in this sort of oligarchy of speech, the argument went?

The "cheap speech" made possible by the Internet famously democratized mass media communications.[1] Many inequalities of course remain, related to wealth, fame, credentials, reader prejudices, and the like. (It's hard to imagine a nation or an institution where all speakers really had equal influence.) But it's easier than ever for ordinary people to speak to large groups. It's easier than ever for them to create audio and visual works, as well as text. It's easier than ever for a few of them to get mass individual followings without the need for an imprimatur from the "mainstream media." It's easier than ever for groups of ordinary people, whether formally organized or just loose sets of social media connections, to spread ideas that they find worth spreading.

Oligarchy, how quickly we have come to miss you! Or at least certain facets of what you provided: many of the criticisms of the modern Internet media ecosystem—and many of the legal and social reactions to it—stem precisely from its greater egalitarianism, or so I will argue below.

For instance, while the old expensive-speech system was rightly criticized as undemocratic, the flip side was that the owners of the press had assets that were vulnerable to civil lawsuits, and those owners were thus disciplined by the risk of liability, as well as by market forces. They also had professional and business reputations that they wanted to preserve: if reporters spread something that proved to be a hoax, it could mean loss of a job (or at least of opportunity for promotion) for them, and public embarrassment for their news outlet—consider Dan Rather and 60 Minutes being duped in 2004 by the fake President Bush National Guard memos.

Say what you will about the old mainstream media, but it didn't offer much of a voice to people obsessed with private grievances, or to outright kooks, or to the overly credulous spreaders of conspiracy theories. In 1990, someone who wanted to educate the world about an ex-lover's transgressions would have found it hard to get these accusations published, unless the ex-lover was famous.

Likewise for someone who was arguing that some mass murder (the 1990 analog of the 9/11 attacks, or of the Newtown school shooting) was faked or secretly planned by the government. The media acted as gatekeepers. And while the gates shut out much good material, they shut out much bad as well.

Today, though, those of modest means and the anonymous (literally and figuratively) can speak to the world, and can often find an audience, in Google search results even if not in daily visitors to a site.[2] And while this democratization and greater egalitarianism has many virtues, it has the vices of those virtues.

Anyone can say anything about anyone—and they do. They can easily publish complaints, including lies, about acquaintances, ex-lovers, and local businesses. They can publish photographs of their ex-lovers naked. And while the typical "Violet Schmeckelburg done me wrong" site won't have many readers, it might easily come up as the top result in a Google search for "Violet Schmeckelburg."[3]

And many people can do all this without being much deterred by the risk of liability for libel or disclosure of private facts: because the speakers have very little money, they have little to lose from a lawsuit, and potential plaintiffs (and contingency fee lawyers) have little to gain. There are mean and irresponsible rich people as well as poor people; and there are mean and irresponsible publishers at media organizations, despite the market constraints under which the organizations operate. But those with assets can at least be sued for damages. Damages lawsuits against those without assets are largely quixotic.[4]

The legal system's remedy for this, perhaps to the surprise of some, has been increased criminalization:

  • Anti-libel injunctions have become much more common, likely because they offer the prospect of enforcement through the threat of criminal contempt (or of jailing under a civil contempt theory until the defendant takes down the libelous material).
  • Criminal libel statutes continued to be enforced, likely to the tune of about twenty to thirty prosecutions per year, in the about a dozen states in which they exist.
  • Prosecutors are rediscovering criminal libel law by using other statutes, such as criminal harassment statutes, to go after persistent defamers.
  • And the disclosure of private facts, in recent decades the domain of the disclosure tort, has increasingly been fought using criminal prosecutions as well.

Cheap speech also allows people to forward hoaxes, false conspiracy theories, and generally "fake news" at the click of a button. Nonprofessional speakers are just as protected by the First Amendment as is the institutional media.[5] But they may, on average, lack the professional skepticism that mainstream media editors and reporters tend to cultivate. They may lack (again, on average) the background knowledge that helps them sift the true from the false. They often need not worry much about professional or reputational sanctions (or libel lawsuits if those hoaxes also malign someone in particular). To be sure, many social media users may be much more cautious and thoughtful; but plenty aren't.

And the Internet has made it easier for groups to effectively speak to their members and to fellow travelers. Well-established groups (the NRA, the ACLU, religious organizations, and the like) had long been able to do that, though at nontrivial cost. But now any group, including a small upstart, can do the same. And naturally this includes groups whose views we might disapprove of, and which historically found it much harder to speak (because they lacked the money for mailings or broadcasts): pro-terrorist groups, white supremacists, riot organizers, and the like.

The reaction here has not been criminalization, because First Amendment doctrine likely protects such speech from governmental restriction, whether through criminal punishment or civil liability. But it has been a push towards greater activism by private platforms—the same sorts of oligarchic intermediaries that many had been so excited to cut out of the process.

In what follows, I hope to elaborate on all these points. My main task here will be descriptive and analytical, aiming to explain some possible reasons for what I describe. I will largely leave to others prescriptions about what is to be done; but I hope my analysis might help us think through such matters.

[1] See, e.g., Doe v. Cahill, 884 A.2d 451, 455 (Del. 2005); Dan Gillmor, We the Media: Grassroots Journalism by the People, for the People (2006); Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 895-97 (2000); Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805 (1995).

[2] Again, getting noticed is still easier if you have the money to advertise, or the ear of an existing media outlet that will pass along your speech to its readers. But the phenomena that I describe don't require that poor speakers have as broad an audience as rich ones —only that they can have an audience of considerable, and damaging, breadth.

[3] The John Smiths of the world might find safety in numbers, but those with less frequent names are much more vulnerable.

[4] In principle, people with a lot of money may also be hard to deter, especially if damages awards are set too low. There is the story of Lucius Veratius, an ancient Roman aristocrat who took advantage of the rule of the Twelve Tables (old even then), "If one commits an outrage against another the penalty shall be twenty-five asses," the as being a copper coin. The Twelve Tables, tbl. VIII, ¶ 4 (emphasis added). Twenty-five asses being nothing to him, he would walk down the street slapping people in the face; his slave would then hand the victim the money, and Veratius would go on to the next man. Aulus Gellius, Attic Nights (John C. Rolfe trans., Harvard Univ. Press 1927), http:/‌/‌‌hopper/‌text?doc=Gel.20.1 [].

But in practice, this doesn't seem to happen much, precisely because damages awards—including punitive damages for particularly egregious behavior—can be quite substantial. Consider the $140 million awarded to Hulk Hogan in the Gawker litigation. Eriq Gardner, Judge Upholds Hulk Hogan's $140 Million Trial Victory Against Gawker, Hollywood Rep. (May 25, 2016), []. And while some rich defendants may expect that their expensive top-notch lawyers will avoid such liability, the prospect of liability can draw top-notch plaintiffs' lawyers (even absent an ideological funder for the litigation, as in the Gawker matter).

[5] E.g., Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1291 (9th Cir. 2014); Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 463-65 (2012).

NEXT: Poetry Tuesday!: "Ia mechtoiu lovil ukhodiashchie teni" ("With my dreams I caught the departing shadows") by Konstantin Balmont

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “In 1990, someone who wanted to educate the world about an ex-lover’s transgressions would have found it hard to get these accusations published, unless the ex-lover was famous.”

    Respectfully, you forget about the mimeograph machine, the cheaper “ditto” machine, the photocopier, and then the laser printer. And the staple gun.

    I won the “Battle of Christmas” at UMass by stapling a “Save XMass” flier on both sides of just about every telephone pole on (or near) the UMass campus. Had I been so inclined, I could have publicized an ex-lover’s transgressions in a similar manner.

    Or by buying a roll of stamps (they used to come in rolls of 100, probably still do) and sending an anonymous letter to every member of her church’s congregation. I believe that has been done, with subsequent libel litigation over it. FIRE — Foundation for Individual Rights in Education — has had great success by simply mailing copies of things to parents & alumni. Etc.

    There were “underground presses” in the 1970s that literally used mimeograph machines to produce books. While the content was different, a lot of churches did the same thing — neither could afford a printing press. Although my neighbor literally had one in his garage and did printing on the side.

    But look into how the first edition of _Our Bodies, Ourselves_ was printed. Or a lot of the other counterculture/student literature of the 1970s, much of which is available in various archives today.

    1. Going back further, a lot of newspapers started as a vehicle to express the editor’s political views — many were so openly partisan that it remains today in their names. Foster’s Daily Democrat. The Springfield Republican.

      Often they strove for accuracy and comprehensive news coverage as a means to get their editorial pages read, and then there is the Christian News Service (CNS) that explicitly states that it reports “from a Christian perspective.”

      1. There’s a certain island that has always been tumultuous, and the lobstermen have been fighting with each other for as long as anyone can remember. And while I can’t say this definitely happened, accounts of it have appeared in print so it probably did.

        Back in the late 1800’s, the Boston (and New York) newspapers sent travel reporters to places like Maine to report on things that their readers might find interesting. One reporter happened to take the mail boat out to this island and arrived in the midst of a trap war* after someone had cut someone else’s lobster car** loose from its mooring.

        That’s a serious issue, and the reporter duly noted it in the article which she telephoned to her editor. But back then, newspapers liked to use big words so as to impress their readers, and the editor proceeded to put such big words into her story before it went to print.

        A day or two later, she was mortified to read that someone’s “horseless carriage” had been cut loose and that the “motorized conveyance” had been damaged when it washed ashore on a ledge…

        I can’t confirm the validity of this, but I think you have an overly halcyon view of the expensive press. Didn’t Pulitzer reportedly say “you send me the pictures, I’ll send you the war”?

        * A trap war is a territorial fight between lobstermen.
        ** A lobster car is a float with compartments below the waterline in which lobsters are stored until they can be sold. They aren’t as common today because lobsters are usually sold (and trucked south) the day they are caught.

  2. Does it bother anyone else that there seems to be a general assumption that the truth has trouble competing in the marketplace of ideas?

    1. Right. The old guard is losing its ability to define “truth,” and it’s turning to increasingly extreme measures to try to put the genie back in the bottle.

      I don’t see this as qualitatively any different than Gutenberg’s breakthrough in the power to publish enabling efforts like the Reformation. The establishment ultimately folded, but there definitely was a rocky road along the way.

    2. It’s Gresham’s Law applied to speech. Bad speech drives out good.

      I am not particularly offended by the proliferation of pornography, but if one is, that could be arguably added to Prof. Volokh’s argument about cheap speech.

      1. “I am not particularly offended by the proliferation of pornography, but if one is, that could be arguably added to Prof. Volokh’s argument about cheap speech.”

        That’s certainly an argument that can work either way.

        1. HAS pornography proliferated — or has it shifted from strip clubs and X-rated movie theaters to .mpeg files on the internet? There used to be fights over the locations of adult book stores — do they even exist anymore?

          And how much has society itself changed?

          1. Porn is so common, that the average 12 year old is a regular viewer of hardcore internet porn of all varieties. In a previous age, they snuck a peek at a playboy, or when they were adults, may went to one of those skeezy adult video stores, if at all. Meanwhile, the internet has facilitated prostitution.

            We life in a porn-ified world.

      2. It’s Gresham’s Law applied to speech. Bad speech drives out good.

        Gresham’s Law happens because the holders of the “good” (higher intrinsically valued) currency start to hoard it rather than spending it. Speech is non-rivalrous, so there’s no similar motivation to withhold it.

        1. Well, it’s not the same mechanism as Gresham’s Law, but bad speech does drive out good speech. Alice Dreger’s Galileo’s Middle Finger describes the process pretty well.

          1. Because good speech is more reliable, in the long term, it drives out the bad.

            1. Holmes and Mill believed that, but it does not appear to be true in the online age.

              1. In the opinion of people who can’t admit their’s is the bad stuff, sure.

                1. That’s not what I mean. I mean playing to the crowd claims that are clearly wrong spread far better than the truth. This happens on both the left and the right.

        2. That last part is not really true. Yes, speech is non-rivalrous, but attention is not. My carefully researched comment that takes an hour to finish and post? In the same time it takes me to do that, Kirkland can write twenty comments about clingers, all of which compete with mine for the attention of readers of this blog, all of which make it easier for people to overlook/skim past my comment without responding, while they take Kirkland’s bait and change the topic to him. Does that encourage me to write even more well-researched comments? Or does it instead encourage me to either stop posting entirely or to dash off a string of You’re-a-poopyhead comments?

    3. Speaking of the marketplace of ideas, Parler is back up.

      I side loaded the app yesterday.

      1. Still looks like a honey pot to me. Not that that’s a big deal in my case, I’m a bit too old now to be participating in a revolution, or anything vigorous like that. But it still looks like one.

        1. It is a honeypot, if you look who created it. As soon as they asked for my real name and phone number, I was like f*ck that sight.

          Their user database got leaked. Don’t trust them.

  3. What about when the gatekeepers are the ones lying to us?

    “Conspiracy theories” that proved out to be true (a small sample):

    Your phone is listening to you when you aren’t using it
    Planned obsolescence by phone manufacturers
    NSA spying on everyone
    The Gulf of Tonkin
    Homosexual pedophilia in the Catholic Church
    Operation Northwoods
    If you think Jeff Epstein killed himself, you’re a dunce
    The Great Reset
    Hunter Biden’s laptop was Russian disinfo

    In short, I prefer the “cheap speech” even if I have to deal with flat earthers and those that think that the WTC was a controlled demolition.

    Also, I’m very aware that what also happens is that deliberate misinformation is put out there, mixed in with the truth, in what is called “increasing ambiguity.” At some point it’s hard to know what’s real, and what’s not. Those in power who want to stay in power, do this on purpose. See this documentary by Adam Curtis:

    1. The thing with Jeffery Epstein that no one has speculated is that (a) he may have hung himself, (b) accidentally.

      Autoerotic asphyxiation — apparently lack of oxygen enhances the orgasm and it is not completely uncommon for people so engaged in this to wind up accidentally hanging themselves.

      1. Sure, and the videos of the cell block are not there due to some malfunction, and both jailers were asleep, or, to your theory, provided evidence he was engaged in Rev Kirkland’s side gig because his onesie was found around his ankles. Oh, and his hyoid bone was broke.

    2. “If you think Jeff Epstein killed himself, you’re a dunce.”

      Or familiar with the common place cruel indifference of American jails and prison.

      1. Do you think Epstein killed himself?

        1. Yes. He was an extremely powerful man who had already escaped consequences for his criminal conduct. But, in 2019, he was finally facing consequences in the form of a lifetime in prison. He was facing it while detained in an American jail. Suicides are common in American jails and and prisons. Complete indifference to the lives and well-being of detainees, no matter who they are, is common in them. The people they hire, aren’t necessarily the most attentive or caring bunch.

          Furthermore, suicides and suicide attempts are also common among powerful men who have finally been caught, history is filled with examples.

          A conspiracy theory is much more fun and stimulating for people to indulge in than acknowledging the banal truth: desperate people facing desperate circumstances will try (and succeed) at killing themselves. And the American prison and jail system is essentially indifferent to it, and indeed, makes it much more likely.

          1. As pointed out above, the problem isn’t with the idea that Epstein might have killed himself, as it is with all the little coincidental things that happened around it to assure that, if he had been murdered, you wouldn’t be able to prove it.

            1. See, those coincidental things, happen in a lot of jail/prison suicides. Look at Ariel Castro. He was a sexual predator who was finally facing life in prison. He killed himself shortly into his sentence even though he was supposed to be routinely observed…the guards did not observe him and falsified the records.

              1. I can tell you’re a lawyer, trying to create reasonable doubt…just a smidgen, by some sort of historical comparisons and hammering a square peg into a round hole.

                It fails.

                1. No. I am a lawyer who is familiar with the routine cruelty and indifference of American jails and prisons to the well-being of inmates, and not being willfully ignorant about it to satisfy some need to feel smarter than the powers that be.

                  1. square peg, round hole

            2. Finding ‘too many’ after-the-fact coincidences is just confirmation bias.

              That’s how pseudoscience gets going.

              1. Finding ‘too many’ after-the-fact coincidences is just confirmation bias.

                As usual with you, pretty much the opposite is true. Finding too many after the fact coincidences is in fact how actual science gets done. When too many things are occurring that are not explained by your model it is time to find a better model.

                That is actually the fundamental difference between activist and scientist and why the two almost never exist in the same person. Scientists believe the oddities and possible failures should be front and center because they are interesting. Activists believe oddities and possible failures belong in shallow graves in the backyard so as not to disturb the narrative.

                1. That’s not how falsifiability works at all.

                  If you don’t set out your hypothesis a priori, you’re going to fall for confirmation bias.

                  1. Sorry, Art is right here.

                    After the fact coincidences, oddities, and apparent mistakes are why most of science exists. These issues are what leads to scientists MAKING the hypothesis in the first place.

                    Sometimes the hypothesis is right (as with the discovery of Neptune, discovered due to irregularities in Uranus’s orbit). Sometimes the hypothesis is wrong (as with the failure to find Vulcan, a hypothetical planet closer to the Sun than Mercury). But the irregularities and odd coincidences are what lead to the hypothesis being formed in the first place.

                    1. Digging into a specific oddity? Sure.

                      But drawing any conclusion from the number and magnitude of coincidences observed retrospectively is just inviting your pareidolia to do the thinking for you.

          2. I will charitably say you’re just ignorant on the subject.

            One of the world’s most experienced forensic pathologists conducted the autopsy, concluding that suicide was impossibly unlikely since, for starters, the hyoid bone in the neck was broken. Do you know what that means, and how with the items in his cell, there wasn’t a way to generate the force necessary to do that when the only way to hang yourself was to hang from the top bunk? Not to mention the bruising and other associated trauma that wouldn’t occur when you would hang yourself with what was available in that cell to hang yourself with, the bedsheets around his neck. The noose identified by the medical examiner as the does not match the description given of the scene.

            Oh, and there was no image of how the body was found, both guards were asleep, and the cameras just happened to not work.

            Lastly, history is also full of people who are guilty as sin but think that they are going to get away with it. Harvey Weinstein, for example, yet they don’t commit suicide.

            1. “I will charitably say you’re just ignorant on the subject.”

              And I will charitably suggest you are willfully ignorant of the routine indifference and failings of American jails and prisons.

              Have you ever been in a detention facility or interacted with detention facility staff?

              1. Oh, I know more about jails and prisons than most, as my MA was in Criminology and I work with, and sometimes in, a county jail.

                1. Then you should know better than to spout these conspiracies when the sad truth of our detention system is staring you in the face everyday.

                  1. It’s hard, but look yourself in the mirror, and say “much of what I believe is not true, even if I *feel* it to be true.”

                    It’s hard, but I know you’re capable of it.

                    1. “much of what I believe is not true, even if I *feel* it to be true.”

                      So you are saying the following are untrue:

                      1 jails and prisons are places with comparatively high rates of suicide,
                      2 jail and prison employees are often negligent and indifferent to suicides and suicide attempts,
                      3. and that people in dire situations don’t try to kill themselves, particularly when they’ve come to realize there is no longer any hope of rescue?

                    2. Ecological fallacy.

                      Quit trying to make it about prison/jail suicides in general. I’m talking about Epstein’s death.

                    3. “Quit trying to make it about prison/jail suicides in general. I’m talking about Epstein’s death.”

                      So am I. It’s extremely likely it was a suicide based on everything we know about jails and people wanting to kill themselves in situations like this.

                    4. Speaking from the general, that it was a genuine suicide is plausible. And who knows how many cameras are out, and how many logs would turn out to be faked if they were examined.

                      Speaking from the specific, this guy was about as high profile as it gets, it was widely expected that he’d be murdered to shut him up, and we’re to believe they wouldn’t have taken a smidgen more care?

            2. Also: you “most experienced” forensic pathologist is an 86 year old pathologist to the stars who makes contradictory findings when paid by famous people, and has notably lied/been misleading in prior cases.

              1. I haven’t seen autoerotic ruled out — just sayin…

              2. So, if you think jail and prison workers are so lousy, why would you trust the gov’t pathologist so much?

                I would trust a guy who’s been in the business 50 year, and done thousands upon thousands of autopsies over the government pathologist when it’s in the government’s interest to say he committed suicide. Police and corrections officers are always above board, right?

                Note, they don’t, and you don’t, dispute the broken neck bones, eh? That simply cannot happen with the way the state says he committed suicide.

                So, believe what you want, and that folks, is how corrupt powerful people stay in power.

                1. “So, if you think jail and prison workers are so lousy, why would you trust the gov’t pathologist so much?”

                  Jail and prison workers typically require very few if any qualifications. The system they work for isn’t known for being caring and attentive to human needs.

                  By contrast, the government pathologist is a medical doctor who has extensive training in forensic pathology. They have ethical and professional obligations as well as extensive experience dealing with jail deaths.

                  “I would trust a guy who’s been in the business 50 year, and done thousands upon thousands of autopsies over the government pathologist when it’s in the government’s interest to say he committed suicide. Police and corrections officers are always above board, right?”

                  Well. He’s 86 now, so its likely he’s not at the top of his game anymore. (Be honest, would you actually be comfortable with an 86 year old surgeon?) And he used to be a government pathologist in NYC until he was pushed out for being sloppy. He’s sense made a career of involving himself, for pay, in high profile cases, which has included high profile bad judgments (OJ case) and high profile lying about conflicts of interest (Phil Spector). His incentives and biases are extremely suspect.

                  As for the government pathologist, no it is not actually in their interest to say it was a suicide. Suicide generally means deliberate indifference lawsuits, and starts just as many investigations into jail conduct. But in this particular case, the NYC pathologist investigating a death in a federal facility. Not even the same governmental unit…so there isn’t really an incentive to reach a different conclusion.

                  Finally, police and corrections officers aren’t above board! That’s the whole point, they’re deliberately indifferent to suicide attempts.

                  “Note, they don’t, and you don’t, dispute the broken neck bones, eh? That simply cannot happen with the way the state says he committed suicide.”

                  I am not a medical doctor so I don’t feel the need to play doctor and pretend to go into the autopsy details to assess which is medically correct. I am simply basing my conclusion on well known aspects about our jails, human nature regarding suicides, and the obvious credibility issues with Baden compared to the NYC pathologist. Only one of them is an ancient media hound with a spotty history who is being paid a lot of money by rich people interested in a contrary conclusion.

          3. No way Epsteain killed himself, LTG. I hear what you are saying. But guys like that don’t kill themselves. They are too egotistical.

            1. Sure they do, look at this list. It’s filled with egoists and powerful people.


        2. We can rule out Epstein’s mother.

    3. kalak, is there any reason to think the gatekeepers lie to us with any greater frequency than the conspiracy theorists?

      1. Yes. As a way to maintain power. Thus it ever way, but is increasingly more so.

        Watch the linked documentary on my comment above, it’s only a 5 minute excerpt from a larger piece, and well worth your time. The BBC documentarian Adam Curtis says it is a far more convincing way than I would.

        1. But conspiracy theorists are after power too, so they’re both motivated. If I can get a million people to think that Hillary Clinton runs a pedophile ring, which may even be enough to swing a close election, that’s power.

          So, why would I trust the conspiracy theorists any more than I do the gatekeepers?

          1. You shouldn’t trust conspiracy theorists any more than the gatekeepers. WTF would you? Look at everything with a skeptical eye. Moreover, be aware, that dismissing otherwise valid concerns about X or Y as a conspiracy theory is a way to deflect criticism, and that underhanded people plant deliberate misinformation within that legitimate criticism in order to discredit the rest legitimate criticism. They they say it’s been “debunked.” This has happened quite recently with Hunter Biden laptop pics as well as election fraud.

            Let’s give some examples that would make you sit up as they were to your liberal side of things. Was Rachel Carson in Silent Spring a kooky conspiracy theorist? How about the folks that spoke up about 3 Mile Island when Reagan’s EPA was saying “nothing to see here, move along, move along.”

            1. When (month and year) did the Reagan EPA people say nothing to see here about 3 Mile Island?

              1. The 3 mile island accident happened in 1979 under Carter. However, the fallout from the disaster (pun intended) bled across administrations with Reagan not taking industrial pollution seriously through budget cuts and a generally unsympathetic administration. Reagan’s first EPA admin, Anne Burford (1981-83), resigned amid scandal over cronyism with industrial polluters. That’s the “nothing to see here” that I’m talking about.

                But if you want specifics from Reagan’s EPA about 3 mile island as it occurred, then I will concede my words slightly overreached. Got it?

                1. As opposed to cronyism with the Chicken Little Brigade?

                2. There was no fallout from the incident.
                  The disaster was a PR disaster.

                3. “with Reagan not taking industrial pollution seriously through budget cuts and a generally unsympathetic administration.”

                  Can’t conceive of somebody taking industrial pollution seriously, and deciding the cost/benefit balance calls for less of it? Taking it seriously always has to involve increasing budgets and being more sympathetic to regulators?

              2. Actually, *Reagan’s* EPA was dealing with Chernobyl (April, 1986) and he was quite vocal about the Soviet’s attempts to cover it up.


                1. Why? Because the Soviet Union was the evil empire. That’s foreign policy.

                  Look, I like Reagan, you like Reagan, I wish he would come back and run again as zombie Reagan as he’d still be better than the other walking corpse in the Oval Office…but industrial pollution wasn’t a concern of his. He did other good things.

                  1. No, because the Soviet system precluded proper action and then sought to direct blame at everyone but the Soviet bureaucracy. That from a close colleague who visited Chernobyl a dozen times for the NRC and the IAEA.

            2. I don’t trust the gatekeepers. I would go a step further than that and say that there is a small-c conspiracy by people who have wealth and power to keep it by any means necessary, meaning nothing more than that they’ll do whatever lying, cheating and stealing they need to do to stay in power. Donald Trump is Exhibit A.

              But we have a new problem with conspiracy theorists — and I’m not including those who turn out to be right, which I will concede occasionally happens. And that is their ability to whip large numbers of people up into a lather over a blatant falsehood. The gatekeepers didn’t give us the January 6 riot at the Capitol; that came from the conspiracy theorists. For all their faults, the gatekeepers at least want things peaceful and quiet.

              We have large numbers of people who are convinced that the Democrats are going to turn us into a Soviet Republic by summer, that the feds are coming for their guns, that Christians are headed for gulags, and that their children will be taken away from them unless they espouse the party line. I know this because some of them are my relatives and they’re terrified. And this level of fear, based on complete nonsense, is the product of (mostly right wing) conspiracy theorists, who allow lies to fall off their tongues like raindrops.

              So yes, the gatekeepers are a problem, but at the moment the conspiracy theorists strike me as a larger one.

              1. Of course you would, because it’s in your worldview and self-interest at this moment to support the gatekeepers over the conspiracy theorists.

                Go back in time, think of your self back in 2001. What did you think about weapons of mass destruction and Iraq? How did you feel when it turns out you were lied to by no less than the President and his entire administration, repeatedly, on national TV while looking directly at you through the camera? Did you support the “conspiracy theorists” who said that the intel was “sexed up” to support the case for war? Be honest with yourself.

                How about that insane paranoia about Mohammedian terrorists during the Bush Admin as another example?

                To bring it full circle, the muckraker “gatekeepers” simultaneously claimed that Russian election interference was the gravest threat to American democracy since the Civil War for 4 damn years, and then in a 180 spinout to make me dizzy, also said that the US election of Joe Biden happened without the slightest blemish of voter fraud.

                1. Gatekeepers, and politicians (including George Bush) are not the same group. So I don’t see Bush as being relevant to this specific discussion, which is about journalists rather than politicians. When Bush lied, it was the job of journalists to expose the lies. They failed in varying degrees, and when they finally figured it out it was mostly too little too late. But the primary fault for the Iraq war lies with the Bush administration, not with the journalists who covered it.

                  And I don’t think anyone, including Joe Biden, would claim that there wasn’t the “slightest blemish” of voter fraud. Just that the outcome wasn’t in doubt.

                  1. You’re attempting to redefine the terms. Bush, and the press that enabled him to make his case of weapons of mass destruction without an appropriate amount of skepticism, were the very definition of gatekeepers. Dems voted for the war too because they believed it. They were the institutional and elected authorities who told us what “is” and what “isn’t”. People who said otherwise, were dismissed as kooks.

                    Then, in a weird irony, once the media and the Dems were convinced that they could take out Bush by pointing out that they were wrong, they called everyone who said Sadam had moved the chemical weapons to Syria in the run up to the war conspiracy theorists. See what you got here?

                    Joe Biden, if he wanted to dispel the general sentiment of over half the country that he is illegitimate, would push for audits. Like after 2000, by a bipartisan commission. Drag Carter out of retirement again. But he won’t, because he can’t. If you’re told that something is a “conspiracy theory”, even if you don’t believe it, ask yourself “cui bono”.

                    1. I don’t think the “general sentiment of over half the country” is that Biden is illegitimate. I think that’s the sentiment of Trump’s base that’s been sold a bill of goods by Trump. But most of the country, including a lot of people who voted for Trump, recognize that it was an honest election and there’s no reason to pander to the nuts.

                      As far as the war in Iraq is concerned, yes, there is plenty of blame on both sides, although the primary blame rests with the decider in chief, and that would be George W. Bush. He knew full well the intelligence was wrong, lied to the whole world about it, and launched a disastrous war. But again, this conversation is primarily about journalists. They reported what they were told.

                    2. “A new poll conducted by Just the News Daily Poll and Scott Rasmussen reveals that less than half of all respondents — a mere 49% — believe Joe Biden legitimately won the the 2020 US Presidential Election, and 34% said they believe Trump actually won the election, and a further 16% remain undecided.”

                    3. Do you have a citation for that quote?

                    4. K_2,
                      Give it a rest. Biden won the election, albeit within the margin of expected systematic error in any election’s attempt to ascertain the “will of the people.”
                      Still the way America runs elections, he won definitely. Get over it.

                    5. I don’t need to get over anything; I’m not claiming Biden is illegitimate. But assuming Kalak’s numbers are accurate, that simply proves how successful the conspiracy theorists have been in selling their lie that Biden lost.

                    6. I was saying this before the election: In the lowest trust environment since the run-up to the Civil war, we needed to run a perfectly by the books election, every “i” dotted, every “t” crossed, security and transparency turned up to eleven.

                      Instead Democrats insisted on making massive ad hoc changes to election administration, frequently without bothering to get the law changed. They seized upon every excuse available to eject election observers or place them where they couldn’t really observe. Security and transparency were turned down to 1 instead of 11.

                      If they were trying to make sure that whoever lost wouldn’t lack for excuses to think they’d been robbed, I can’t think what they would have done differently.

                    7. Maybe blame the people promulgating the conspiracy, Brett, not the Dems for not kowtowing to the conspiracists.

                    8. You really are rejecting the signal, aren’t you?

                      You can deny people reasons to believe conspiracy theories, and still, some fraction of them will anyway. But you’ll have at least minimized the problem.

                      Or you can give people every reason to believe conspiracy theories, and bitch about the much larger group believing them.

                      You’re in the second camp.

                      Don’t refuse to let your opponent watch you shuffle the deck, and whine about them thinking you stacked it after they lose the hand. Admittedly, not letting them watch isn’t proof you stacked it, but if you act like you’re cheating, expect people to believe you’re cheating.

                    9. Brett, you’re denying the agency of the media that promulgates the conspiracies. It’s kind of amazing you blame Dems for not fixing their policies based on the crazies on the other side.

                      FOX, OAN, Newsmax, they’re the ones making things up. They have a responsibility, and they’ve thrown it away. But somehow you don’t care about them, rather blaming the Dems for not working hard to keep partisans who hear false crap from believing it.

                      That’s a fool’s quest.
                      It’s your house. You have the responsibility to clean it.

                    10. Brett, I was raised by John Birchers. I know the mindset of people who believe conspiracy theories. And there is nothing anyone will be able to say that will convince them. Any evidence you present will simply be dismissed as proof that the conspiracy was able to fabricate evidence to cover its tracks. So at some point, the question becomes why bother.

                      We had a fair and honest election. Biden won. Trump’s base will never admit otherwise. Time to move on to other things.

                    11. “It’s your house. You have the responsibility to clean it.”

                      What’s your take on Greenwald’s article titled “The False and Exaggerated Claims Still Being Spread About the Capitol Riot”

                    12. Greenwald sucks, here too.

                      He’s equating a journalistic mistake with intentionally lying to the public. And then he’s laboriously and repetitively drawing a whole narrative around it based largely on supposition and his own bias.

                      The only basis were the two original New York Times articles asserting that this happened based on the claim of anonymous law enforcement officials.
                      That’s not a conspiracy theory. I blame the NYT for plenty, but not this story. The Capitol Police are famously closed to the media, and this is what you get.
                      By contrast, look at FOX and it’s ilk regarding the election (and their judicially-motivated abject retractions, followed by some of them going right back to it).

                      Similarly zip tie guy. Where was the lie there?! It was a photograph!

                      And then he gets in the weeds about how it’s not really an insurrection because the government has an agenda and also cites himself to debunk the idea that the insurrectionists were there to go after elected officials. Eliding that most live cases still make that allegation, and back it up with no shortage of social media evidence.

                      Greenwald is a narritivist, and you should never read him as a sole source.

                    13. Well, his thesis is that that episode isn’t an example of the modern media doing careful, impartial journalism, or being quick to correct when it goofs, and that people run with the original erroneous reports even after the original source retracts the story. Any thoughts on that thesis?

                      (and, of course, you’d have the same opinion, no doubt, if the particular media source who had goofed was Fox, right?)

                    14. Instead Democrats insisted on making massive ad hoc changes to election administration, frequently without bothering to get the law changed. They seized upon every excuse available to eject election observers or place them where they couldn’t really observe. Security and transparency were turned down to 1 instead of 11.

                      All process arguments are insincere. None of the conspiracy theories who think that Trump won do so because (e.g.) a state elections board rather than a state legislature established a rule providing for ballot dropboxes.

                      The people who think that Trump won are basically stupid people, who are gullible enough to believe Trump, who seized on arguments after the fact. Look at “Sharpiegate” in Arizona, for instance. Or attacks on Dominion or Smartmatic. None of these things had anything to do with changed procedures. Pre-election changes were not “massive,” and were not done by “Democrats,” but by elections officials of all stripes.

                    15. He thesis appears to go a lot farther than that.

                      Yeah, a lot of the media has a dumb thing about being the first to report on a crisis. They still generally require multiple sources, but it does screws up their fidelity more than it should.

                      And its not profit driven, I don’t think. It’s just some dumb competitiveness thing. And yeah, it should end. It ends up screwing up the ecosystem as everyone reports on each other.

                      But that is not a sexy partisan narrative.
                      It’s thus not Glenn’s narrative about there being an agenda, nor is it Brett’s thesis that Democrats are to blame for there being a narrative that they stole the election.

                    16. Sarcastro, I might have some trust for anonymous sources, if the media had a practice of outing them if they proved to be wrong. But they don’t.

                      This leaves me with no reason to suppose the media actually care if their anonymous sources are accurate, and very little reason to suppose they’re even real.

                      You might argue that the media know who their sources are, and will stop using a source if it proves to have fed them a lie. But, why should I believe that, either? They do keep running anonymously sourced stories that turn out to be lies, after all, and WE don’t know it isn’t the same people feeding them lies they want to publish.

                      Who told them that Sicknick was beaten with a fire extinguisher? They know who told them. They now know it was a lie. But they’re protecting the source, and why do they protect sources who lie?

                      I think because they don’t care that they were lied to, as long as it’s something they wanted to publish.

                    17. Your default assumption here, Brett, is that the media is lying. About what they report, and about how they report it.

                      This is in variance to your default assumption about conservatives.

                      This is why it is not incumbent on the media to give a fig what you think, because your accusations of bias come with unclean hands.

                      There are plenty of conservatives, and liberals, with legit beefs about the media. You are not one of them.

              2. “The gatekeepers didn’t give us the January 6 riot at the Capitol; ”

                Are you sure about that? Someone decided to severely underman security that day. Someone pretty high up.

                You know what turns a standard protest into a riot or dangerous event? Not having enough security and one or two stupid people.

                1. And the FBI losing track of people they knew were up to no good, don’t forget that part.

                  1. Who did the FBI lose track of?

                    And notice how the actual evidence you have of a conspiracy is scanty? How you’re just leaning on circumstantial evidence and interpreting it to go with your narrative?

                    Conspiratorial thinking.

                    1. An FBI Report Warned of Violence at the Capitol. Why Wasn’t the Government Prepared?

                      Why do you suppose they had all that information on a small set of the participants, so early? Why do you suppose they found that van with guns so quickly?

                      It really looks like they had a lead on some specific extremists who were plotting trouble, and then just dropped the ball.

                    2. I don’t know. But the burden is not on me – you’re the one claiming a conspiracy. One of those leak-proof ones, natch.

                      But you’re just appealing to incredulity. You have zero positive evidence. Same with Epstein. And Seth Rich. And the Clinton Death List.
                      It never ends once you start indulging in that fallacy.

            3. “Was Rachel Carson in Silent Spring a kooky conspiracy theorist?

              Yes, she was. Her personal war on DDT is why bedbugs are back in the US and Malaria elsewhere. Yes, DDT ought not have been used on crops, but there aren’t a whole lot of bald eagles inside your average hotel room. And she was completely wrong about it causing cancer.


              “How about the folks that spoke up about 3 Mile Island”

              It took President Jimmy Carter, who fortunately had a USN Nuke Sub background, *personally* going there to quiet down the kooky conspiracy theories and the related hysteria.

              Yes, it was a clusterf**k that was badly handled all around, starting with only having one telephone line in the control room. If nothing else, the National Guard ought to have strung a couple dozen field phones into there — although I don’t know why the TelCo didn’t just unroll a spool of 25 pair cable across the ground and wire it into a pole (taking existing lines if necessary).

      2. is there any reason to think the gatekeepers lie to us with any greater frequency than the conspiracy theorists?

        Even if measurable and even if true, I personally would find it of extremely cold comfort that the institutions that actually control my life are at least as honest as individuals who don’t.

  4. If Prof. V has not read Spirew Agnew’s take on the media in the day of gatekeepers, I suggest he does. (In effect, we are, in this era of cheap speech, returning to the cheap speech of the Founding Era anyway.)

    The conclusion: By way of conclusion, let me say that every elected leader in the United States depends on these men of the media. Whether what I have said to you tonight will be heard and seen at all by the nation is not my decision; it is not your decision; it is their decision.

    In tomorrow’s edition of the Des Moines Register you will be able to read a news story detailing what I said tonight; editorial comment will be reserved for the editorial page, where it belongs. Should not the same wall of separation exist between news and comment on the nation’s networks?

    We would never trust such power over public opinion in the hands of an elected government–it is time we questioned it in the hands of a small and unelected elite. The great networks have dominated America’s airwaves for decades; the people are entitled to a full accounting of their stewardship.

    1. The media had 100% hate speech against Trump 100% of the time. Yet, Trump got 74 million votes. The voter has adjusted for the media bias.

      1. That’s unprovable.

      2. Partly adjusted. Who knows how a fully adjusted electorate would have voted?

        1. At least one political scientist has tried to measure the effect of media bias. I think he was a guest commentator here at some point. He is, of course, savaged by the left, but I have not investigated to see if their attacks were merited or not.

          Dr. Tim Groseclose, a professor of political science and economics at UCLA, has spent years constructing precise, quantitative measures of the slant of media outlets. He does this by measuring the political content of news, as a way to measure the PQ, or “political quotient” of voters and politicians.

          Among his conclusions are: (i) all mainstream media outlets have a liberal bias; and (ii) while some supposedly conservative outlets―such the Washington Times or Fox News’ Special Report―do lean right, their conservative bias is less than the liberal bias of most mainstream outlets.

          Groseclose contends that the general leftward bias of the media has shifted the PQ of the average American by about 20 points, on a scale of 100, the difference between the current political views of the average American, and the political views of the average resident of Orange County, California or Salt Lake County, Utah. With Left Turn readers can easily calculate their own PQ―to decide for themselves if the bias exists. This timely, much-needed study brings fact to this often overheated debate.

          1. Does this PQ predict that a non-biased press would have resulted in 14 million more votes for Trump? How does it translate to votes on the ground?

            1. Presumably if you were 20 points less liberal on a 1-100 scale, you’d be less likely to vote for democrats. But again, your question shows that, like I said, your assertion that media bias doesn’t matter as voters have adjusted, is unprovable.

          2. What’s it mean if you calculate your PQ and find yourself dead in the middle, because all your views are extreme in opposite directions.

    2. Wait….you mean he said more that “nattering Nabobs of negativism?!” 🙂

  5. re: “But they may, on average, lack the professional skepticism that mainstream media editors and reporters tend to cultivate.”

    Objection – Assumes facts not in evidence.

    From what I can tell, the average non-professional is more skeptical and generally better educated on the background knowledge than the average mainstream editor or reporter. I will grant that there are more extreme kooks among the amateurs but that just says that the distribution curve for professionals is a narrower bell shape, not that the midpoint of the distribution is higher.

    1. I was going to make the same point. My image of a hard bitten reporter from a few decades ago was indeed someone who had seen it all, was expecting a spin on most of what they heard, and were going to look past the spin.

      In contrast, today’s journalists often seem utterly credulous.

      1. Four years of college to learn to cut and paste tweets and facebook posts. Seems a waste.

  6. Most of our beliefs are false, including the current laws of physics. Wait just 50 years, people will pity us for our deluded state. The sun and planets do not turn around the earth, even though Ptolemaic formulas worked well to explain backward motion of planets in the sky. People also adjust the credibility for the source reading today’s stories.

    One problem that can be solved in the law is the bias of 90% of the mainstream media, basically a vehicle for the Democrat Party talking points.

    There is a Journalism Code of Ethics. One tenet is to provide both sides of a story. A story violating this Code of Ethics should be liable in a statue overturning the NY Times decision. This statute would provide for self regulation, with an expert attestation as to the violation. Once a violation is shown, the libel should be per se.

    1. “It’s more of a guideline, actually”

      1. Violation of a guideline is enough for a per se violation. It is their own rule. For example, the violation of an internal office policy manual is enough for a per se violation. It is an admission of wrongdoing. Here is a brief lawyer analysis.

    2. “Most of our beliefs are false, including the current laws of physics. ”
      You obviously understand little physics, little about the methods that physicist use and little about the nature of physical laws.
      Newtonian physics is accurate for the large majority of what we observe macroscopically, quantum physics does better at microscopic physics. But no practicing physicists delude themselves by thinking that these formulations are the ultimate theory of everything.

  7. Here is a nice AI high school project. Take an encyclopedia from 100 years ago, or 200 years ago. Count the assertions. Fact check each. What fraction remain true today?

    1. Congratulations! You’ve just discovered science.

  8. Reviewing the comments so far, I think EV could just write “QED.”

  9. The oligarchic intermediaries were never going to be cut out of any new alternative to an old mass media because the business model is identical. Advertising. And that business model is what created the oligarchic intermediary to begin with.

  10. Meh.

    They said the same thing when Gutenberg started publishing.

    (Gutenberg Wiki)
    In Renaissance Europe, the arrival of mechanical movable type printing introduced the era of mass communication which permanently altered the structure of society. The relatively unrestricted circulation of information—including revolutionary ideas—transcended borders, captured the masses in the Reformation and threatened the power of political and religious authorities; the sharp increase in literacy broke the monopoly of the literate elite on education and learning and bolstered the emerging middle class. Across Europe, the increasing cultural self-awareness of its people led to the rise of proto-nationalism, accelerated by the flowering of the European vernacular languages to the detriment of Latin’s status as lingua franca. In the 19th century, the replacement of the hand-operated Gutenberg-style press by steam-powered rotary presses allowed printing on an industrial scale, while Western-style printing was adopted all over the world, becoming practically the sole medium for modern bulk printing.

    1. Please, add porn propelled every new medium to financial sucess, starting with cave wall drawings.

      1. Porn was a part of the printing press’s success back in the 1600s, and a few images don’t constitute evidence. Nor was porn part of another big advancement of communications, radio and TV. It was part of early movies, but the Hayes Code shut that down until that system was broken up in the 1960s.

        I grant you the VCR, DVD, and the internet are tied to the pornification of society.

        1. Most the Guttenberg porn was destroyed before their mother could find it. In classical painting, it was in the form of depictions of scantilly clothed mythical characters or of characters from other cultures for “anthropology edification.” We would need access to the book collection of the Vatican to settle this debate.

          One feature is clear. Beautiful people have become more frequent in rapid human evolution. They have more sex. They induce more orgasms. And, they produce more children than ugly people.

          This feature is important today, because the vast majority of Democrat voters have very ugly faces. This feature is apparent even in people whose appearance is important, like those on TV. The Democrat Party will disappear in 100 years from human evolution of the human face. If CRISPR can impart beauty in living people and in fetuses, then the rate of disappearance may be much faster.

          1. No, beautiful people have NOT become more common, you have access to images of beautiful people that you didn’t before mass media that skews our perceptions, raising everyone’s standards of what’s beautiful in a woman.

            10,000 years ago, Ug would have 100-150 in his tribe. Of those of fertile age not pair bonded off, their range of beauty would be no different from ours. Plus, it’d be relative. If the hottest woman was prehistoric Megan Fox, then the rest of the women would compare to that. If the hottest woman was Rosie O’Donnell, then the rest would be compared to that.

            Selection pressures were for survival, and beauty secondarily. It’s why we find big boobs, wide hips, good hair and skin attractive in women (they signify fertility and health) and women find muscled men with strong jaws (signifying high testosterone)who can provide for their offspring, attractive. Our choices of what are beautiful are, in fact, selected on for fertility, we don’t select on beauty and fertility secondarily.

            If Ug were today forward in time, he’d have wank material of virtually an unlimited number of attractive women on the internet. Worse, a woman who in Helen of Troy’s day would be a 6, with Helen as a 10, the woman who’s a 6 posts to social media pics of herself and gets such validation she thinks she is another Helen of Troy and wonders why the quality of man she isn’t up to her idealistic standards.

            1. We can reasonably expect that beautiful people have become more common, because a whole variety of biological causes of being ugly, such as bad prenatal nutrition, or scarring diseases such as small pox or chicken pox, have become much less common. Then there’s dentistry and orthodontics.

              This is, of course, a matter of bringing the bottom up. Hybrid vigor would be expected to raise the top, too.

              And as humans have a certain amount of built in xenophilia, (It aids in preventing excessive inbreeding.) genetic mixing of previously isolated populations is contributing to raising the beauty level across the spectrum.

              Of course, this just leads to rising standards for declaring somebody beautiful looking. So maybe it should just be stated that the percentage of really ugly people is declining, and the population is clustering more and more towards the upper end of the spectrum.

              1. That’s a good point. Make up, modern dentistry, filters on cameras, acne meds….they make people look prettier but the gene pools about the same.

                1. Take a walk around a mall after the lockdown is over. Check out ordinary people for yourself, male and female.

                  Compare to your class pictures of only a generation ago to control for age.

                  1. yea, they are all fat now!

            2. Birth Control pills trick a woman’s body into thinking she’s pregnant.

              There is a theory that pregnant women look to a different type of man than a fertile woman does, and there may be something there.

          2. “And, they produce more children than ugly people. “

            Not with abortion.

            The problem we have today is that the absolute worst people to be breeding are, while those who would improve humanity aren’t.

            1. *shhhh*

              That’s another conspiracy theory.

              1. Not really. Do you think it was by accident that China instituted a 1 child policy. Aside from BYU, how many faculty at major US research universities have more than 3 kids? (per spouse).

                Where do people have lots of kids? where many kids do not reach adulthood. Where the the median national age is less than 20.

                1. They’re just 2 eugenicists talking, Don.

                  Best not to get involved.

  11. Professor Volokh, you suggest privately edited publishing prior to the internet was either less democratic, or maybe even anti-democratic. That is partly true, but easy to over-state. In the latter half of the 20th century, when mainstream media were fully mature and dominant, it was not at all difficult for someone with minimal assets to set up his own newspaper and compete. The nation was awash in such publications. Even small towns might have two or three in competition.

    I don’t think it is right to make unhindered power to publish swill the measure of publishing democracy. The measure ought to be the ability of almost anyone at all to find a way to enter the market and give it a try. If that try delivers too much swill for the taste of the market, that might be a failure of taste, a failure of judgment, or a failure of publishing acumen, but not a failure of democracy.

    1. If democracy is rule by the people, and the people themselves are full of self-generated swill, what does that tell you about democracy?

      1. What it told the founding generation: democracy is swill

      2. It’s always worth recalling that half the population has an IQ below 100, and that, while humans are capable of rationality, it isn’t our default state.

        And worse, for those who are on the upper side of 100, greater intelligence can just as easily be devoted to doing a better job of rationalizing, as it can to rationality.

        We’re just evolved apes, in the end, and it’s amazing that we can maintain a civilization at all.

        1. “…it’s amazing that we can maintain a civilization at all.”

          It’s come crashing down before, and will again. Truer words have never been said.

  12. Seems to downplay a lot of the benefits of cheap speech.

    In 1990, almost no one would have seen this post. It would not exist.

    Just as an example, in 1990, if a normal person wanted to know what yesterday’s supreme court decision said, he read an inaccurate article about it in the local paper. If he missed the article, he had to physically travel to a library. Now, I can punch up any court decision in a matter of seconds no matter where I am.

    The same is true for about any subject. If I want to know how to calculate a derivative, I can look it up on you-tube. In 1990, I would have had to hope that I hung on to my schoolbooks.

    1. Conflating factors leads to confusion. Capitalism is good. Industrialism makes goods. Capitalism tends to get more credit than it deserves because its rise was contemporaneous with the rise of industrialism (but of course capitalism played its part in that).

      TwelveInch, ask yourself how much of that useful information is a result of democratic access to the internet, how much of it would have been delivered cheaply just because of the internet, and how much of it still depends on less-democratic traditional publishing to gather and collate the information in the first place.

      1. It’s not an accident that capitalism was contemporaneous with the rise of industrialism. You can’t have industry without some form of capitalism. It may be private sector capitalism, it may be state capitalism, but it’s an unavoidable requirement. Capitalism is just the practice of deferring consumption to invest in productive capacity, and industry is impossible without it.

  13. “consider Dan Rather and 60 Minutes being duped in 2004 by the fake President Bush National Guard memos.”

    It’s pretty clear to me they were not duped, they just wanted enough plausible deniability to run a hit piece on Bush that they thought he would have a hard time refuting.

    That’s why their fallback position was “fake but true”.

    1. Right. Nobody who’d been genuinely duped would have gone with “fake but true”, they’d have been furious.

      It has to be remembered that 60 Minutes had a history of fabrications. Rather’s venture into the genre was hardly a shocking departure.

      1. Which reminds me of when, back in 1992, NBC’s Dateline knowingly rigged incendiary devices on a GM pickup truck which actually fired slightly before the staged televised “demonstration” collision, claimed the truck was hit at 30 MPH (when it was actually hit at 40 MPH), claimed or implied that the fuel tanks ruptured (they didn’t – although the person hired by NBC to stage the fake results left the gas tank cap loose).

        There wasn’t even a shred of plausible deniability in that one and two days before admitting they staged the fire, NBC was still claiming the demonstration was legit.

  14. “There is the story of Lucius Veratius, an ancient Roman aristocrat who . . . would walk down the street slapping people in the face . . .”

    Especially when he was drunk. Hence, the famous expression, “In vino Veratius.”

    1. Comicus, the stand-up philosopher, ladies and gentlemen! Let’s give him a big hand!

      1. …or as Google calls it, a magnas manibus.

  15. Very well, it may be easier nowadays to attack average people online – either as part of a personal vendetta or as part of a digital mob.

    But what about attacks on powerful or rich people? What about attacks on poor Hunter Biden?

  16. if reporters spread something that proved to be a hoax, it could mean loss of a job (or at least of opportunity for promotion) for them, and public embarrassment for their news outlet—consider Dan Rather and 60 Minutes being duped in 2004 by the fake President Bush National Guard memos.

    That thing again. It is more likely the hoax victims were all the delighted internet fans who went away thinking sleuth/activists had busted Rather for not recognizing a Microsoft Word document.

    I want to be clear about this, Rather deserved what he got. But not because the accusations made against him deserved credence. They didn’t.

    Rather’s sin was publishing an important story without knowing its source. He had a document. He had no notion where the document came from. It was an awful journalistic blunder, fully justifying his firing.

    But guess what, that purported duplicate made using Microsoft Word? That was either a deliberate hoax itself, or a graphically naive presumption foisted in innocence on a graphically naive public.*

    Problem was, the central narrative—that Rather fell for a modern forgery of a decades-old document which might not even have existed—would have been debunked if a typographical expert had taken a look. The fonts which Rather’s critics said did match—and thus must have both been Word documents—did not match. The document Rather had was the same general font family as the Word document, but the numeric characters were different in style, which apparently went unnoticed by everyone. Notably, Rather’s document showed some digits with descenders (not every digit aligned on the baseline, as with the Word document). More notably, descender-style digits is an older style than base-aligned digits. Most notably of all, there was probably typographic equipment in use by the military when Bush served which would have produced those distinctive digits in an ordinary letter or memo.

    Not that any of that should have saved Rather. He didn’t know where his document came from, and that was that. But it does mean the lesson so many took from that celebrated incident—that the internet had shown its mettle by getting the truth out and busting the mainstream media—may have been better understood as yet another demonstration of the vulnerability to misinformation which results from unedited publishing. The continuing salience and durability of that Rather myth tends to emphasize the point.

    *Whenever I make this point—and it comes up from time-to-time—I have to append this caution. I have (or did have, it’s fading) typographic expertise sufficient to qualify as an expert witness. But I did not, of course, have access to the original Rather document, nor to the other one, said to be the product of Microsoft Word. With both those in hand, it would take only a glance to confirm or disprove what I say. Using only what you can see on the internet, I’m about 95% confident.

    1. The document Rather had was the same general font family as the Word document, but the numeric characters were different in style, which apparently went unnoticed by everyone. Notably, Rather’s document showed some digits with descenders (not every digit aligned on the baseline, as with the Word document).

      Apparently it went unnoticed for good reason. Copies of the documents are right here. Keeping in mind that these last went through a fax machine, it’s not clear at all what you’re referring to as digits with descenders.

      And I can’t include more than one link in a post, but the Wikipedia page on this has an animated GIF showing the same section of one of the documents and the corresponding Word mock-up. Again understanding the purported doc had gone through a fax machine plus whatever other sort of softening/distorting techniques upstream, the dead giveaway is the 100% precise registration between the two. There’s simply no way the proportional spacing capabilities of a mechanical typewriter available in 1972 would have come out exactly the same across that extensive a sample of text as it did in a mid-2000s version of Word. Most specifically, the typewriter couldn’t do kerning of specific letter pairs like Word. This has been beaten to death.

      1. I believe they did identify a particular, very high end typewriter that an experienced typesetter could have replicated the document on with considerable effort.

        If you believe Army memos were carefully composed by typesetters.

        1. Brett, if you are talking about the IBM Selectric Composer, and you should be, it looked almost like a regular Selectric typewriter. For simple work (including everything in the Rather collection) getting up to speed was a zero-learning curve experience for anyone who could operate the Selectric typewriter.

          You paid more, you got the ability to justify type using a more-complicated process, output looked proportionally spaced, and if you used special paper and a special ribbon, you got camera-ready copy that you could make lithographic printing plates from.

          1. And it still was a fairly rare typewriter at the time, that wouldn’t have been used for a routine memo.

            1. Brett, as I said in another comment, the first one I ever saw was at that moment being used for routine correspondence and business paper work in an Air Force procurement office. I got handed a purchase order with some of data already filled in, took one look at it, and said, “How did you make this?” And they showed it to me.

      2. Life of Brian, before we get into this further, please answer two questions:

        1. Is it your opinion that all the documents your link shows were made with the same original font?

        2. Is it your opinion that all the documents your link shows were created using identical original equipment?

        Just so you’ll know, the typographic term which describes generally the type of figures I am pointing to is, “old-style figures.” Those are recognizable not only because they feature descenders on some digits (not always the same digits, depending on the design), but also because the designs of some digits are distinctively different compared to more modern presentations, such as default fonts in 2004 Microsoft Word documents. In particular, the old-style renditions of 3s, 5s, and 8s feature marked asymmetries in their negative spaces. In each case, the lower negative space is strikingly larger than the upper one. Take a look at the 01 August 1972 document to see that illustrated. With Microsoft default type, the negative spaces in those digits were much closer to visual balance. If you have Word, look for yourself, it’s probably still that way. To a typographer, it is not a subtle difference. It tends to survive even faxing. Anyone should be able to see it after it has been pointed out.

        Two specific bits to look at in that same document:

        1. “AFM 35-13” That shows well the asymmetry in negative spaces of “3” and of “5” which a typographer expects with old-style figures.

        2. “AF Form 1288” Same as above, but for “8”.

        The descenders can be harder to see, because faxing tends to chew the ends off font elements when they taper to a point. Nevertheless take a look at “to the 9921”. Note that the bottoms of both 9s are visibly below the bottoms of the “2” and the “1”. That would not happen with 2004 Microsoft Word default type.

        Now for the animated GIF. You are correct that line-length registration is a sensitive indicator of a font match. But before you rely on it, keep in mind that it is child’s play for a typographer with a good eye, professional kerning tools, and patience, to vary line lengths, sometimes by as much as multiple whole characters. For dispositive proof of a match, you would need to see not only line-length registration, but character-by-character registration and word-by-word registration, and you would expect it to be light-table perfect.

        The animated GIF does not begin to pass that test. The animation itself is a bit of dodge, because it conceals more than it reveals, by never putting the samples in view simultaneously. Nevertheless, look at it, as it flickers between them. Lots of stuff is moving left and right within the lines. To a layman’s eye those movements may look negligible. To someone like me, who spent way too much of his life poring over type samples, checking registrations on light tables, and hand-adjusting kerning to make approximately-accurate type matches look perfect when dropped into edits for existing text of unknown provenance, those are large and troublesome discrepancies. I have little doubt that if you stacked the originals on a light table, you would not see a clean line of type, but instead a smudgy, blurry mess. Which is exactly what you would expect to see if someone—including an expert—had attempted to doctor type, using kerning to get the registration to match among subtly different renditions of, for instance, Times Roman.

        I have refrained, and will continue to refrain, from claiming Rather’s accusers doctored their evidence. I don’t have the originals. They get the benefit of the doubt. Except for this. If the fonts could be shown for certain to be different renditions of the same design, then a near-match for registration between actually different implementations would be beyond-a-reasonable doubt proof of a doctored document. I have never seen that happen by chance.

        I don’t go that far because I am about 5% doubtful that I have a sample reliable enough to make the judgment. Give me the originals, Rather’s documents and the Microsoft Word counter-proof, and I could tell you at a glance whether those are really the same fonts they are claimed to be. I might clearly discover I am wrong.

        So, finally, the question of proportional spacing and ordinary typewriters. Why assume a typewriter? I know for certain that by spring of 1971 the Air Force, at least, was using the IBM Selectric Composer for ordinary correspondence. I know that because I saw it personally, in an Air Force procurement office. I was so amazed at the typeset appearance of the output, that in 1972 when I set out to publish a small newspaper, one of the first things I did was get me one of them IBM composers. It could absolutely produce the kind of typeset appearance the Rather documents show.

    2. “that Rather fell for a modern forgery of a decades-old document which might not even have existed”

      Exactly how many men — let alone Generals — knew how to type back in 1970? Assuming that the General was in his 50’s, he would have been born before 1920 — he would no more have learned to type in high school than he’d have been wearing a dress, this was something that *women* did.

      Prior to 1990 (and the widespread arrival of computers), only girls learned to type. I was the only male in my high school typing course — and I only learned so that I could type my own papers in college rather than having to pay someone else to do it.

      Let’s say that General had graduated high school in 1938 — he would have been taught the Palmer Script and something like that would have been handwritten.

      1. Exactly how many men — let alone Generals — knew how to type back in 1970?

        Tens of millions.

      2. I am male, and I learned to type in my 9th grade class, in the late 60s. I was far from the only male in that class.

      3. Basically irrelevant, as a General could have had a secretary type it, but the secretary wouldn’t have had the highly exotic typewriter necessary to replicate the ‘memo’.

        1. Somewhat exotic. The device which could have done it looks almost exactly like an IBM Selectric typewriter, works like one, and is no harder to use for a job like the Rather documents. Inexpensive, too, by military standards.

          1. Still unlikely the General’s secretary would have had one, and would be using the specific type ball necessary. But, yes, it was just barely possible to have produced at that time a memo that would look just like the out of the box default settings of Microsoft Word.

            1. Brett, my point was that it did not look like Microsoft Word output. I could recognize a font difference even in an execrable faxed reproduction.

              Yes, it was the same font family, and the same approximate weight, and for all I know the same font name, but it was a graphically different implementation. That kind of thing is commonplace in typography, because all the classic font designs get copied and reworked constantly—sometimes to be sold under new names, sometimes under the same old names, depending on the marketing context.

              I never encountered an example of that kind of work which was exactly like any of the others. Most of them would not be recognized as different by anyone but a typographic expert.

      4. And, just to pile on, I learned to type in the 60’s, and the Jr. High class was full of guys.

      5. I learned to type in 7th grade, in the mid 50s. The class was about two-thirds girls.

      6. Who are these, “Generals,” by the way?

  17. China is inventing a social credit scheme that may bring back some of the properties of the old media. High social credit means reputation and a degree of influence. It substitutes behavior for money as a means of gaining power and influence.

    Unfortunately, we in the West are ignoring it because we suspect China of aiming it to create a George Orwell 1984 though control. I believe that we’re making a mistake by ignoring it. A social credit system need not be Orwellian, but it can be effective. We may well regret our choice.

    1. The social credit score correlates with the promotion of the Chinese Communist Party interests.

    2. We already kinda have a defacto social credit system in the West.

    3. Uhh. Government-mediated, and applying it to individuals as well as institutions rather shows you may not have that quite right.

      Though nice handle!

  18. Sounds like an interesting read!
    Btw this article is now the top result for “Violet Schmeckelburg.” Don’t say anything to nasty about her.

    1. She decided her name sounded “too weird,” so she changed it to Lady Gaga.


  19. The fundamental premise of the piece is so wrong it is sad. Speech was cheap. Think Speakers’ Corner at Hyde Park or Oxford. Simple letter presses were cheap. The famous Oxford don, Charles Lutwidge Dodgson (a/k/a Lewis Carroll) was a stammerer who used a letter press to hand out bills because of his speech impediment. “Of speech, or of the press”, not vice versa, says the First Amendment. It was the 20th Century that made speech expensive – the founders might be aghast at the NY Times or Washington Post. The disintermediation of big money media takes us to where the founders where, not someplace new.

  20. This country, like most large societies, has historically had an elite, a kind of aristocracy, which among other things served as gatekeepers for what goes on the public stage.

    Americans right and left have long distrusted elites. But the aristocratic system Metternich put together in Europe, however self-serving, mostly kept the peace for nearly a century, and when it collapsed early in the 20th century it was followed by half a century of devasting war, revolution, and hatemongering on a grand scale. The revolutionaries of the Austrian Empire hated the Hapsburgs and their nobility with passion. Their children and grandchildren came to look upon them with nostalgia, remembering their era as a time of relative peace and prosperity not seen for generations after.

    Perhaps we or our children will similarly look back with nostalgia on the days when America was governed by an elite that gave at least lip service to the idea of acting in the public interest and treating others fairly.

Please to post comments