The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Democrats Have Become Much More Supportive than Republicans of the Government Restricting False Information Online"
So reports a new Pew Research poll; the view that "The U.S. government should take steps to restrict FALSE information online, even if it limits people from freely publishing or accessing information" polled at 37%-60% (i.e., mostly against) with Republicans, and 40%-57% with Democrats in 2018 (no statistically significant difference there), but now Republicans are 39%-59% against and Democrats are 70%-28% for. Unsurprising, it seems to me: People's views on the question likely depends on how much you trust the U.S. government's judgment of what is "false information," and Democrats today trust it more than do Republicans.
To be sure, the poll question is potentially ambiguous: For instance, if one views "U.S. government" as including state and federal courts, and focuses on libel law as a kind of restriction on false information, one might say yes to the question just because one supports some sort of libel liability. But in practice, I expect that most respondents did focus on broader attempts by the Administration or by Congress to restrict supposedly false information.
Note that the debate in the U.S. about federal government power to restrict false information—including false information that is seen as harmful because it wrongly undermines confidence in the government—is almost as old as the U.S. itself, which dates back to the debates about the Sedition Act of 1798 and similar speech restrictions. The Sedition Act, for instance, banned
false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them] … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.
The Act's backers stressed that the law (unlike the English common law of seditious libel) was limited to "false" and "malicious" statements; and they noted the importance of restricting those statements. Here is Justice Chase's instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically:
If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.
And here is one from Justice Iredell in Case of Fries, dealing with a treason prosecution arising out of the Fries Rebellion in Pennsylvania in 1799; Iredell was defending the Sedition Act of 1798, though Fries wasn't tried under that Act:
Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.
In consequence of such misrepresentations, a civil war had nearly desolated our country [I believe this refers to the Whiskey Rebellion -EV], and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.
The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity-increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief….
Men who are at a distance from the source of information must rely almost altogether on the accounts they receive from others. If their accounts are founded in truth, their heads or hearts must be to blame, if they think or act wrongly. But, if their accounts are false, the best head and the best heart cannot be proof against their influence; nor is it possible to calculate the combined effect of innumerable artifices, either by direct falsehood, or invidious insinuations, told day by day, upon minds both able and virtuous.
Such being unquestionably the case, can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power….
Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?
It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust….
I think that our legal system has rightly retreated from punishing such seditious libels, partly because criminalizing even outright lies ("false" and "malicious" statements) about the government
- unduly risks suppressing or at least deterring even legitimate opinion,
- unduly risks suppressing allegations that would ultimately prove accurate, and
- unduly risks selective enforcement by officials of that government.
For an example of these problems, see U.S. v. Cooper itself; and the Supreme Court recognized this in 1964, concluding that:
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. The invalidity of the Act has also been assumed by Justices of this Court. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….
[Though false, malicious allegations against specific public officials may be punished,] "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."
But in any event, the debate, as with many important historical debates, is coming back to the fore. Thanks to Josh Rosenbluth for the pointer.
