The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Journal of Free Speech Law: "Getting to Trustworthiness (But Not Necessarily to Trust)," by Prof. Helen Norton

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.


The article is here; here's the Introduction:

Political scientist and ethicist Russell Hardin observed that "trust depends on two quite different dimensions: the motivation of the potentially trusted person to attend to the truster's interests and his or her competence to do so." Our willingness to trust an actor thus generally turns on inductive reasoning: our perceptions of that actor's motives and competence, based on our own experiences with that actor. Trust and distrust are also both episodic and comparative concepts, as whether we trust a particular actor depends in part on when we are asked—and to whom we are comparing them. And depending on our experience, distrust is sometimes wise: "[D]istrust is sometimes the only credible implication of the evidence. Indeed, distrust is sometimes not merely a rational assessment but it is also benign, in that it protects against harms rather than causing them."

Actors and institutions thus cannot control whether others trust them. So in this Essay, I focus not on how to encourage the public to trust the media, but instead on how to encourage the media to do what it can control—in other words, to behave in ways that demonstrate its trustworthy motives and competence.

To be sure, different communities find different behaviors indicative of trustworthiness, and thus the media's choice to behave in ways that some communities find trustworthy may simultaneously inspire other communities' distrust. For example, as demonstrated by an exhaustive study conducted by information and technology scholars Yochai Benkler, Robert Faris, and Hal Roberts, some contemporary media cultures value, and thus trust, media institutions that privilege truth-seeking—while others trust those that simply confirm identity:

Media and politicians have the option to serve their audiences and followers by exclusively delivering messages that confirm the prior inclinations of their constituents, or by also including true but disconfirming news when the actual state of the world does not conform to partisan beliefs. For media, this is the key distinction between partisan media and objective media.

In other words, different media ecosystems confer, and receive, trust for different behaviors and different end goals.

This Essay addresses media behaviors that are likely considered trustworthy in media cultures that reward truth-seeking rather than identity confirmation. It thus leaves aside the even more difficult problem of how to encourage other ecosystems to reward truth-seeking even when truth disconfirms identity.

To start, consider how the media's self-interest and incompetence (both real and perceived) create barriers to its trustworthiness. More specifically, self-interest is among the motives that trigger distrust: we find it hard to trust self-interested actors to act in ways attentive to our own interests. The media's potential for self-interest thus often fuels the public's distrust, just as governmental actors' self-interest also often triggers the public's distrust.

When I speak of the media's potential for self-interest, I refer to the media's need to do whatever it takes to survive financially, especially in today's destabilized media environment. Concerns about the media's motives include perceptions that it is all too willing to invade privacy, oversensationalize, or cater to advertisers' preferences for self-gain—in other words, to exploit others to capture users' attention and engagement to protect its economic bottom line.

Self-interested (and thus untrustworthy) media behaviors include the deployment of platform designs and interfaces that collect, aggregate, and analyze data about us in ways that enable them to influence our choices. To be sure, sometimes such designs and interfaces give us more of what we want. But too often they manipulate us—in other words, they influence our behavior in ways that we would resist if we were aware of these efforts. Nobody wants to be manipulated, especially when we understand manipulation (as a number of ethicists do) to mean a hidden effort to target and exploit our vulnerabilities. Yet the contemporary speech environment enables that sort of manipulation in unprecedented ways. The news media is by no means immune, as press law scholar Erin Carroll has documented the substantial extent to which news organizations collect—and allow others to collect—data about their online readers. Indeed, some news organizations "are even trying to predict how a particular piece of news might make a reader feel and to target advertising accordingly."

These manipulative technologies also enable microtargeting that increases the likelihood that certain speech will cause harm, because "it is not subject to regulatory scrutiny, not subject to meaningful widespread public scrutiny and because [] false claims in such political ads are likely to be spread farther, faster, deeper, and more broadly than true claims in political ads." So too does the amplification enabled by new technologies increase the likelihood that falsehoods or similarly destructive expressive choices will spread farther, faster, and more effectively.

The media's failure to demonstrate "respect for and knowledge of their readers and communities" also triggers suspicion of its motives and competence. Consider, for instance, how public perceptions (accurate or not) that the media is arrogant towards, or disinterested in, its audience cast doubt on its willingness and ability to invest in and engage with that audience. Those who are less powerful cannot afford to trust those who are more powerful without meaningful constraints in place. (To be sure, those perceived as more powerful do not always perceive themselves as such; nevertheless, perceptions of relative power contribute to dynamics of trust and distrust.)

What does it mean for an actor to behave in trustworthy ways? Constitutional law often asks this question with respect to the government, devising doctrinal rules more suspicious of the government in contexts where courts perceive the government as untrustworthy. In the First Amendment context, for instance, experience suggests that the government is least likely to behave in trustworthy ways in settings where it may be self-interested, intolerant, or clumsy (as can be the case where it draws malleable lines absent adequate information or expertise). Conversely, the government is more likely to behave in trustworthy ways in settings where its discretion is limited, where we don't see evidence of a self-interested or intolerant motive, or where the setting leaves us even more distrustful of powerful and unrestrained private actors than we are of the government.

This may also be the case of the media. The remainder of this Essay seeks to spur additional thinking about what it means for the media to behave in trustworthy ways. In so doing, it flags a handful of possibilities for checking the media's potential to act in its own self-interest and for demonstrating its competence—sketching a menu of options (rather than detailing or exhausting them) that variously rely on markets, norms and architecture, and law.