The Obama Administration and many Democratic leaders have made “fake news” a rallying cry for more government and private regulation of the Internet — as well as a rationale for the devastating loss of Hillary Clinton to Donald Trump. Below is a column exploring the dangers of this new justification for speech regulation, which are already becoming evident in various countries around the world. I recently discussed the issue as part of an interesting segment with Ted Koppel.
The recent arrest of an armed North Carolina man in Washington pizzeria has led many to join the call for the curtailment of “fake news” like the story that Comet Ping Pong was a front of Clinton and her campaign chief, John Podesta, of a child sex ring. It is a ridiculous claim but it was enough to send Edgar Maddison to the site with an assault weapon. For civil libertarians, such incidents create an all-too-familiar hue and cry. Faced with a violent, unhinged reaction to a posting, the first response of many is to question the value of free speech and the First Amendment. Around the world, many have called for action to combat “fake news.” It is the latest siren’s call to get citizens to give up a defining right to government’s eager to control the media.
In her first public appearance since losing the election, Hillary Clinton called for actions against the “epidemic” of fake news and called it a danger to democracy. She called for government legislation and a coalition of private and public regulation. In a recent meeting between Obama and German Chancellor Angela Merkel, the two world leaders also struck out against fake news and its dangers. Obama warned that “[b]ecause in an age where there’s so much active misinformation and its packaged very well and it looks the same when you see it on a Facebook page or you turn on your television. If everything seems to be the same and no distinctions are made, then we won’t know what to protect.”
Under classic free speech analysis, the answer is simple: you protect it all. As Justice Oliver Wendell Holmes wrote in his dissent to the 1919 case 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.” In other words, the solution to bad speech is more speech.
Of course, certain speech can result in arrest where it is the basis for a conspiracy or part of a fraudulent enterprise or encouraging for imminent violent acts. It can also result in civil liability such as actions for defamation or product disparagement. However, advocates of censorship are speaking of something far more extreme. They want to see a government crackdown on those who merely utter false statements or “propaganda.” Indeed, some are speaking of a reconsideration of the very value or permitted scope of free speech. That is the position taken by Harvard Professor Noah Feldman who questioned whether “fake” speech is protected speech. Feldman views “fake news” as a type of market failure in the market of ideas – the type of problem that calls for regulation not more speech. Feldman reflects a certain crisis of faith in free speech among liberals who are increasingly treating free speech as the problem rather than the solution for a free society. From hate speech to “microaggressions” to “fake news,” liberals are calling for the government to censor speech.
Various governments are ramping up monitoring efforts and discussing both voluntary and involuntary censorship through Internet and social media companies. In France and other countries, companies are already being prosecuted for posting being hateful. This week, a congressional committee moved to add $160 million to the National Defense Authorization Act to combat “disinformation” on news sites. Many want to see government actively ban sites and internet providers are being warned that they have to censor false stories or face government regulation from countries like Germany. In order words, be a “Little Brother” or face “Big Brother.”
The problem is that someone has to decide what is false or what is inspired for foreign agencies to cause mischief. For example, Hillary Clinton denounced Wikileaks as false but never cited as single false email to prove her claim. Likewise, acting DNC head Donna Brazile repeatedly made the same allegations when emails showed that she unethically leaked questions to be asked at a CNN townhall to the Clinton campaign. Brazile told the media that she could prove that emails were tampered with but never supplied the evidence. Wikileaks infuriated the establishment in Washington. The response has been blind rage from people in Washington who have thrived on controlling information and shaping the news.
It is an easy rationale for government regulation that has not been lost on countries long at odds with free speech. For example, this week Egyptian authorities arrests an Al-Jazeera journalist for incitement and fabricating news. Egyptian Mahmoud Hussein, 51, was the subject of a raid on his home and was then detained “pending an investigation into accusations that he incited against the state and broadcast fake news and documentaries”. The arrest illustrates the dangerous course being suggested by the Obama Administration and leader Democratic leaders in the political spasm following the election loss to Donald Trump.
“Fake news” is simply the latest excuse for governments to convince citizens to invite their own censorship. The dangers could not be more evident that the recent article by the Washington Post citing a study by a dubious group called PropOrNot listing various sites spreading false stories. The organization produced a effective black list that was portrayed as an objective list of peddlers of false stories or “Russian propangda.” It included some of the most popular political sites from the left and right Truthout, Zero Hedge, Antiwar.com, and the Ron Paul Institute. It even includes one of the most read sites on the Internet, the Drudge Report. Notably, it also included WikiLeaks, which has been credited with exposing political corruption and unlawful surveillance programs. Ironically, PropOrNot has itself been criticized for falsely claimed associations with various offices and sites.
The ProporNot controversy shows how easy it is to create a blacklist and how eager many will be to silence those sites deemed “fronts” or “false.” The move to regulate speech on the Internet is little more than a digital version of mob justice. These advocates, however, are right in part. Fake news does have a real danger but it is not the erosion of democracy. Citizens can protect themselves, particularly with a free and unregulated Internet. The real danger of fake news is the reaction to it. The real danger is censorship.