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Journal of Free Speech Law: "Lies and the Law and Introduction," by Prof. Genevieve Lakier
The final article posted from the Knight Institute’s Lies, Free Speech, and the Law symposium.
The article is here; the opening paragraphs:
We live in an era of profound anxiety about the threat that lies, and false speech more generally, pose to American democracy. It's not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. Meanwhile, blatant lies, hyperbolic rhetoric, and misleading claims about important issues of public controversy—critical race theory and its use in public elementary schools, the risk of COVID-19, the reliability of the 2020 election results—saturate many reaches of the mass and social media and motivate, or at least justify, all manner of both elite and popular political mobilization.
The obvious political potency of these kinds of lies raises many questions about what kind of society we live in, and about our political past and future. But it also raises deep questions for and about free speech law—perhaps the most fundamental being whether the First Amendment, as it is currently understood, enables or impedes the collective pursuit of something we might call "truth." I spent the 2021–2022 academic year at the Knight First Amendment Institute at Columbia University, exploring these questions through a series of roundtable discussions culminating in a major symposium in April 2022 on "Lies, Free Speech, and the Law."
A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) "the best test of truth is the power of the thought to get itself accepted in the competition of the market." But as contemporary experience makes quite clear, this assumption is not always true—or, at least, may not be true on a time horizon that prevents society from incurring significant costs—especially if we equate the market, as First Amendment law tends to do, with the hurly burly public marketplace of ideas. There are many reasons why an idea might win out over its competitors on the television screen, in the newspaper, or at the water cooler, other than because it accords better with empirical reality. It might reinforce its audience's assumptions about the world and therefore be easier to embrace than more disruptive alternatives. It might be promoted by an institution or person that is widely viewed as trustworthy. It might be repeated so frequently it becomes one of the taken-for-granted background assumptions of our lives. Or it might give its audience permission to do what they really want to do. The love of truth is not the only motivation that leads listeners to embrace or reject ideas. The result is that there is no reason to think that the fact that an idea wins in the public marketplace of ideas means it must be true, or is likelier to be true, than an idea that fails to win adherents.
And yet, First Amendment law makes it quite difficult (although, as I discuss below, not impossible) for the government to exclude from public discourse assertions about the world that are patently false—that do not, in other words, come anywhere close to satisfying the criteria that have traditionally been used to distinguish truth from falsity. This is not necessarily a doctrinal error, and it is not simply a consequence of courts' embrace of the arguably false Holmesian dictate from Abrams. It is also, and to a much greater extent, a consequence of judicial fears that, were the government granted the power to punish false speech, the dynamics of political competition and the vulnerability of government officials to the same cognitive biases that affect how you and I receive information would make that power susceptible to abuse, and thereby result in a public sphere even more saturated with untruths than the one we live in today. In the wake of the Trump presidency, these fears appear very well-justified. Certainly, the fact that one of President Trump's favorite means of deflecting attention away from his own lies and failures was by accusing his enemies of indulging in "fake news" suggests how powerful a political weapon false allegations of falsity can be. The result, nevertheless, is a body of law that, notwithstanding its frequent invocation of the importance of safeguarding the search for truth, often leaves "truth" vulnerable to the manipulation of media moguls, party bosses, and charismatic speakers.
The strictures the First Amendment imposes on the government's power to punish lies did not always appear as much of a problem for the enlightenment ideals of the First Amendment as they do today. This is because, until relatively recently, other mechanisms of disciplining the undisciplined truth-sorting processes of the public marketplace appeared sufficient (at least to those in power) to ensure that that its participants were not fundamentally deluded about the basic facts of their political reality. The press, first and foremost, but also the scientific establishment, the universities, professional organizations—all of these "knowledge institutions"—helped determine whose voice got amplified, what ideas ought to be believed, and what modes of knowledge production were considered legitimate. This gatekeeping was, obviously, not without cost. Professional gatekeeping may have kept many valuable ideas out of wide public circulation. But one of its effects was to limit public contestation over what is true and false, and to place sometimes significant pressure on members of the political, economic, and social elite to obey basic norms of truthfulness when they spoke in public, or to their clients and constituents. To put it in other terms, the older system helped create what Michel Foucault called a "regime of truth" in which there was widespread agreement about what facts were true—even if, in retrospect, we might think some of that agreement was wrong.
Over the past few years, however, the ability of these institutions to decide what counts as a true claim has lessened, due to a variety of familiar changes: first the rise of social media, and the democratization it has enabled of the public sphere; second, the decline in elite authority that this democratization and political polarization have accompanied; and third, but closely connected to this, the emergence of a strongly populist, anti-technocratic strain of democratic politics. The decline in the power and influence of the old institutions of truthfulness that has resulted from these changes, as well as their increasing politicization from within, help explain the recent wave of public anxiety about the political problem of lies. It has also motivated politicians, judges, scholars, and others to argue that the government should play more of a role in delimiting what is true or false than it has done in the past, now that the other institutions of truth-delimitation no longer work as well as they once did. The fruit of these arguments are laws like the one California recently enacted, which intrudes upon the otherwise autonomous practices of medical professional associations to mandate discipline for doctors who spread information about COVID-19 vaccinations and treatments that contradicts the "scientific consensus."
Laws like the California COVID misinformation law—and similar efforts by state governments and professional organizations to crack down on false speech—suggest that it is high time to re-examine both the constitutional and subconstitutional legal regimes that either directly or indirectly govern the regulation of false speech in the United States, to better understand what lawmakers should and should not do in response to the current "crisis of truth." More specifically, they raise anew two questions that for many years were left on the backburner of First Amendment law and scholarship because they were assumed to be largely solved or uninteresting.
First, exactly how broad is the government's power to punish false and misleading speech under the First Amendment, and how broad should it be? It has long been clear that, notwithstanding the fear of abuse that pervades the false speech cases, the First Amendment does not entirely deny the government the ability to restrict false speech. To the contrary: In certain areas of the law, the First Amendment has been interpreted to permit the government quite broad power to punish speech in part because it is untruthful. For example, in libel cases, plaintiffs may not recover for defamatory statements made about them that are true, but they can recover for defamation that they can show to be false, so long as they can also show that the falsehood was made recklessly or negligently. Similarly, the commercial speech cases grant agencies like the Federal Trade Commission significant power to restrict commercial advertising that is false or misleading to consumers—indeed false or misleading commercial speech is understood to be categorically outside the scope of First Amendment protection. In other areas of the law, however, the extent of the government's power to punish false speech is much less clear. The Court's last word on the subject—its 2012 plurality opinion in Alvarez v. United States—establishes that the government may restrict false speech when it threatens a "legally cognizable harm" but does not do much to spell out what kinds of harms are legally cognizable. The recent crisis of truth is putting pressure on judges and scholars to figure this out. And even with respect to doctrines that we thought were clearly established—such as the law of libel—the recent crisis of truth is pushing some to rethink the existing rules because they believe that the existing rules overvalue the risk of government abuse when compared to the risk of doing nothing in the face of the "proliferation of falsehoods."
Second, what else can the government do, consistent with the First Amendment, to ensure that authorities, like doctors, communicate true information to those that trust them, like their patients, and that (politically) attractive but false ideas do not win over difficult but true ones in the public competition of ideas? Given the risk of abuse and the value that lies can sometimes have, it seems clear—whatever you think about a law like the one California just enacted—that bans represent at best a very partial solution to the problem of false information. So what other changes might government institutions make to promote truth and to shore up the power of the old gatekeepers or, alternatively, create new ones? Are there things, in other words, the law can do to promote a public discourse in which there is truth and not just opinion?
These are the questions explored in the provocative, rich, and varied essays and blogposts that were written as part of the Lies and the Law project I was privileged enough to spearhead for the Knight Institute. Scholars from many disciplines contributed to the project. Their reflections differ greatly in style, methodologies, and conclusions. Indeed, although contributors all draw from largely the same body of First Amendment cases, they reach very different conclusions about what constraints the First Amendment imposes when it comes to the regulation of false speech. They therefore demonstrate what has always been true of the First Amendment but may be particularly true today: namely, that despite, or perhaps because of, the importance of invocations of freedom of speech to all kinds of political debates, what it means to guarantee freedom of speech in the United States today remains a deeply contested question. This isn't to say that there are no points of agreement among contributors to the project. Collectively, the essays and blogposts illuminate three important themes.
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Boring, Trump Derangement Syndrome-addled pablum.
I haven’t paid too much attention to this series, for the reason you describe. But I do recall one contributor saying “I’m a lefty, but …” and then something not completely deranged.
But the question is – are all the other contributors actually batshit crazy, or are they just pretending to be to try to keep in good odor with the mobs back at their home institution ?
ie is the legal academy rancid to the core, or is it just stuffed with terrified liberals ?
His statement about Trump, not necessarily untrue or overblown, does have the feel of virtue signalling as the cost of entry to opine on the subject.
And if you want a discussion of the nation, why lead by hacking off almost half the population? Did we not learn anything from “basket of deplorables”?
Is the ultimate goal to reach a pseudo-concensus that it’s Ok for government to censor political statements? Is your side losing an election, for various definitions of “your”, to be redefined as a “cognizable harm”, and therefore certain political speech may be outlawed?
That Hillary badly undercounted.
Say that loudly and proudly, when trying to argue why government should become the arbiter of truth spoken against it, to fill The People with confidence in “trust us!”
Yeah, remember the outrage over that by people voting for a guy whose most effective political tactic was calling people insulting names?
This doesn’t seem to abe about the government being the arbiter of truth, this seems to be about completely devaluing ‘truth’ as a concept.
You mean Biden’s false characterization of Trump’s “both sides” comment?
Perhaps, dipshit, you missed some recent news. Remember Biden pilfered the SPR? There wasn’t an emergency; he just used it to serve the political ends of the Democrat party. Now we cannot refill it–oil is too expensive. You can rant and rave about Trump all you want–nothing he did was as despicable as this.
‘You mean’
Can you read?
Yes. But the more important question–can you think?
Are you asking for tips?
Not asking for tips. You’re just a pathetic fanboy type,
Well, when you work out what your problem is, let me know, happy to help.
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These writers are academics. To what degree, in your judgment, should they shackle their presentations and articles to cater to the poorly education, uninformed, delusional, disaffected, bigoted, obsolete audience?
If you want to lead a discussion of the nation, and why those who describe half the nation as you do, yet somehow want that half to trust them.
Summary: We’re gonna use the power of government to silence you, you worthless sacks of shit. Have confidence and trust us!
Remember, when this happens, the professors are the first rounded up. See China, Turkey. It is your side (or any) gaining power this way, that immediately rounds up the professors.
There is no confidence to be had being so righteous you can silence others.
And my daily limit for dealing with dishonest people honestly is reached.
You guys are the living embodiment of the Simpsons meme, “Am I out of touch?”
https://i.kym-cdn.com/photos/images/newsfeed/000/645/713/888.jpg
No, everyone on the planet isn’t suffering from “TDS.” You loons are.
Hey Pauline ! Welcome back to the land of the living. And congratulations on your transition.
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This was a right-wing-loaded event; the articles are published by a journal controlled by movement conservatives and Federalist Society favorites.
If this isn’t conservative enough for you, you are doomed to even more disaffectedness than you already exhibit.
What is this “epistemic crisis” that the author writes about?
It seems to me, the author is upset because a good portion of society no longer takes as gospel what they read and hear from the institutional press. Could there be a reason for this? Other than the existence of conservative opposition, the author seems oblivious as to why people no longer trust “knowledge institutions.”
One of Reagan’s themes was “trust but verify.” Why does the author fear attempts to determine the veracity of the official line on any particular topic? The “crisis” seems to be that the public actually wants to know for themselves what is true and so seeks out alternative points of view, rather than accept spoon fed “truth.”
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You figure educated, sensible, modern, mainstream Americans should credit the opinions of people who follow Alex Jones, Candace Owens, Gateway Pundit, FreeRepublic, Instapundit, Stormfront, Steve Bannon, Donald Trump, Michael Flynn, james O’Keefe, Ben Shapiro, Joe Rogan, Robert F. Kennedy Jr., Tucker Carlson, and similar sources in the “search for truth?”
O’Keeffe? What did he serve up that was false?
What did O’Keefe offer that was true?
His stings were legendary. All on tape.
How many claims defamation/fraud claims did he settle or lose?
Educated, sensible, modern, mainstream Americans ought not credit a statement because X said it, nor discredit it since Y said it is not true.
I think you can safely say that anything that comes out of Joe Biden’s mouth is a lie.
I disagree. Time is short for mortal creatures. We don’t have the time to research everything personally, and in many cases we also lack the competence. Consequently we have to (and in practice do) take almost everything on trust, and relying on someone’s reputation, expertise, past record etc is as good a heuristic as is available.
Obviously that exposes us to the risks of charlatans, liars, scoundrels, newspapers, faux experts, and even real ones sounding off outside their area of expertise.
So, on something important, it certainly makes sense to expose yourself to a range of views, listen to other experts, and even do a bit of research yourself if you have the time and competence. And of course pay attention to the past record of whoever it is you’re relying on. (Which obviously implies giving a statement by X a certain amount of credit if he’s been right before more often than not, and the opposite for Y if he has a poor record.)
Obviously that doesn’t mean that relying on X will get you a 100% reliable answer. It won’t. But don’t believe anything you haven’t researched in depth yourself is not a viable solution to the problems of life.
There is an alternative to researching everything ourselves. We can listen to a variety of sources and then apply logic and reason to determine what is most likely true.
Consider the contested source of the covid virus. Dr Fauci and others claimed that a lab release was not likely and that the virus most likely jumped from bats to humans in nature. However, it was revealed that very early on some colleagues of Dr Fauci stated in an email that certain cleavages pointed to the virus having been created in a lab. Now one does not have to become a PhD in bio to conclude that what was said by experts in an unguarded moment might be what those scientists actually believed rather than the statement that was later released after they had considered the politics of the situation. People lie, so do institutions when they feel threatened.
For myself, I did (and still do) not know Dr Fauci from Adam, and so had/have no idea as to his credibility. But applying logic and reason to the available information leads me to conclude that his early denials of the likelihood of a lab leak were BS.
I hear you on Candace Owen. Not too bright and overly enamored with herself–same can be said about Claudine Gay.
You figure she’s the biggest lying, delusional asshole among the listed assholes?
Worse than Alex Jones? Worse that Gateway Pundit? Worse than Bannon? Worse than Trump?
“It’s not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. ”
This woman is stupid. The Santos example sucks because the system appears to have worked–he was expelled. As for Trump, I am surprised she had nothing to say about the lie that the Hunter Biden laptop was a Russian plot.
No, no, you see, they said it looked like a Russian plot. So it wasn’t really a lie.
“Similarly, the commercial speech cases grant agencies like the Federal Trade Commission significant power to restrict commercial advertising that is false or misleading to consumers—indeed false or misleading commercial speech is understood to be categorically outside the scope of First Amendment protection.”
The problem left unaddressed is who decides what commercial speech is false or misleading?
That’s not too hard, and it doesn’t seem to be causing an issue.
Actually, that is a bit of a problem, because sometimes the government decides true speech is “misleading”, just because it’s a truth the government doesn’t want spoken for one reason or another.
Example: Folic acid helps prevent spinal bifida. Absolutely true, and the FDA went to court to prevent supplement manufacturers from saying it in their advertising. Out of a concern, they said, that using folic acid could conceal the symptoms of pernicious anemia until too late to treat.
But did that make the claim false? Nope.
In a vacuum, I’d say that when it comes to drugs etc., the FDA can do that, but it has shown itself to be incapable of wielding that power responsibly . . . .
Barack Obama:
“We’ve got to get the job done there and that requires us to have enough troops so that we’re not just air-raiding villages and killing civilians, which is causing enormous problems there.”
This statement, which was disloyal as hell, disparaged the war effort in Afghanistan. The US was NEVER “just” air-raiding villages etc. Should Obama be able to be punished for this glib falsity? What about the Politfact D-bags who called Palin’s attack on it false?
A Trump voter! Going on about ‘disloyalty!’ They usually have the bare minimum of self awareness to avoid that as a topic.
Well, dipshit, what would you call Obama’s statement? The implication that American soldiers were “just” air raiding villages and killing people was grotesque.
Wait’ll you hear about the people who have declared the entire US military ‘woke’ and consequently a disastrous mess.
Deflection, and there is some woke nonsense going on in the military. Obama was military-hating scum. His actions to release Musa Ali Daqduq were disgusting. Fortunately, the Israelis delivered final justice.
See? Hating the military is fine when you do it!
Wow. I have to admire the chutzpah. Pointing out that there is woke nonsense going on in military is not “hating the military.” You can’t defend Obama’s comments; so you try to change the subject to what some crazies (i.e., not a Senator) have to say. Pathetic and lame.
Why would I defend Obama’s comments? I don’t give a shit. By all means, don’t bomb villages and kill civilians, seems like the bare minimum to me. Pity about the drone warfare, huh? Hey, remember when Trump attacked that gold star family, said horrible things about wounded veterans and called POWs losers?
‘is not “hating the military.”’
What else is it? I mean, it’s complete bullshit, for a start. Why else would you need a bullshit excuse to attack the military? First: you hate it. Second: you’re a coward.
Really? Obama’s comment impugned the US war effort in Afghanistan–it falsely implied that the US war effort was solely a matter of bombing villages and killing people. Disgusting. But of course, a douchebag like you wouldn’t be able to understand it. Trump responded to a Gold Star family’s attacks. Not his best moment (why punch down?) but not even close to Obama’s disloyalty.
What are the Trump quotes regarding POWs? Recall that people have a tendency to lie about what Trump said, e.g., the “both sides” myth.
You know what really impugned the US war effort in Afghanistan? The fact that after ten years, trillions of dollars and untold lives lost it acheived fuck-all.
‘What are the Trump quotes regarding POWs?’
Oh such selective deafness.
Actually, Nige, Bush 43 seems to have had the right idea–small footprint, keep Kabul and a few areas sane and keep a lid on the crazies. It was Obama that expanded the war effort for his own political ends.
But there’s no getting around the fact that Obama characterized the US war effort under Bush 43 as “just” bombing villages and killing people, which is just utter faculty lounge bullshit and disloyalty. Trump’s mouth isn’t generally my cup of tea, but what he says is constantly mischaracterized; so, unless I see a transcript or video, I am skeptical.
The war expanded because of Bush’s fantastic incompetence and stupidity. You seem to be under some impression that I care whether or not Obama disparaged the military with those remarks. You however, can’t even countenance the idea that Trump said bad things about military people.
Even if you assume that Bush 43 messed up Afghanistan, Obama tripled down. He greatly increased the footprint etc.
And that’s fine if you don’t care about Obama trashing the troops–but the point is that he was dishonest and disloyal–should he be punished for it?
You want to punish him for a single remark he made years ago? (Not W Bush, though, who used faked intelligence to start another war.) But Trump steals a bunch of government documents and refuses to give them back, and it’s fine. Trump gets help in his election campaign from Russia, knows about it and is cool with it, and that’s ok. Trump literally tries to overturn a democratic election, and you’re fine. None of that is dishonest or disloyal – hell you’ll vote for him again! That’s just pathetic.
Rare to see an “R TRUUPS” in the wild these days.
You’re with us or you’re against us, eh?
Yeah, our occupation of Afghanistan absolutely included air-raiding villages and killing civilians.
https://en.wikipedia.org/wiki/Azizabad_airstrike
Holy shit what a traitor I am for lacking the blind loyalty to ignore facts!
You obviously miss the point–it was a war. So yes, people are killed, and places get bombed. But American troops were doing so much more–to characterize the war effort like that was a slap in the face to those who answered the call–there was so much dishonesty in the word “just”. But Obama was always a glib POS who didn’t care about America’s military.
America’s military gave women hope in Afghanistan, for one thing.
Yeah, glad the troops have you to defend them from Obama saying something quite specific which you’ve taken utterly wrong so you ca get mad.
Fuck off with wrapping yourself in the flag on behalf of others. Slap in the face, answer the call, Obama doesn’t care about the military.
Quit fetishizing our soldiers and be more normal.
Just stop. The fact is that he said what he said–it was dishonest and glib. Disloyal. This cannot reasonably be debated. So youre just a shill for Obama.
Interesting wording, with interesting re-wording possible; for example, one might re-word one sentence as — One of the pseudo-academy’s “favorite means of deflecting attention away from [its] own lies and failures [is] by accusing [its] enemies of indulging in ‘fake news’ suggests how powerful a political weapon false allegations of falsity can be.” Again, eugenics is a fundamental Holmesian “three generations of imbeciles is enough” example, with leaded gasoline as a follow-up.
The introduction to the essay truly fails.
I don’t know how the idea that we are somehow living in a unique era of disinformation keeps getting regurgitated. As if Trump invented “fake news” or that the press was only until recently always dedicated to the neutral and accurate reporting of events.
We do not need to re-examine the premises of the First Amendment to deal with a “crisis of truth.” There’s no crisis at all.
The internet, thanks to being new, and vastly increasing bandwidth, radically disintermediated communications, depriving the ruling elites of their former ability to censor communications and impose preference falsification on the nation.
What’s unusual today is that the ruling elites are desperately trying to restore their former censorship capabilities, and they need to somehow cook up a legal and moral justification for doing it, because, unavoidably, we can see them as they do it, they can’t pretend that it isn’t happening.
Here is Glenn Greenwald’s take.
https://twitter.com/ggreenwald/status/1775627793411264886
A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
This is false.