Four Theses on Fake News

Fake news undermines free speech culture by impairing our ability to develop and express our thoughts. To fix the problem, we need to police intent rather than content.

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Was Twitter right to ban former President Trump for spreading lies about election fraud? Should Representative Marjorie Taylor Greene have been stripped of her committee roles? Did the Parler app deserve to be shut down for providing a platform to echo all those lies? And what should we do about Facebook, the Death Star of fake news?

We are struggling to answer these questions. A big reason why is that we still do not have a clear understanding of what fake news is, why it is bad, and how we can fix it. Here are four theses that might be of some help:

1.) Fake News is not Free Speech

Fake news requires the intent to deceive others about some current event or issue. It is speech produced by a person or organization who does not believe what the speech conveys, and yet they intend to convince others of its truth. This is why not all false news is fake news. People may accidentally say untrue or misleading things, but they are not thereby generating fake news.

What, then, is wrong with fake news? The problem is not just that a few liars are ruining social media feeds. The deeper problem is that fake news undermines our free speech culture. That may initially seem flat out false: after all, fake news is an exercise of free speech, not an abridgment of it. But that is not the case. To see why, we need to appreciate the moral reasons for protecting freedom of speech.

Freedom of speech gives us the ability to think and speak freely. As UCLA Professor Seana Shiffrin argues, we are morally justified in protecting the freedom of speech because it is necessary for us to live flourishing human lives. Developing and expressing our thoughts is an essential part of living well, and freedom of speech creates the environment in which that is possible. Freedom of speech opens the so-called marketplace of ideas where we come to understand the world and our place in it. Without free speech culture, our lives would be truly impoverished.

Fake news undermines our free speech culture because it impairs our ability to develop and express our thoughts. It does so by polluting public discourse with speech that is deliberately deceptive. In such an environment, sincere speech is not only harder to come by, but also harder to trust. It is more difficult for us to believe and to be believed. And, as Hannah Arendt points out, this imperils our capacity to think: “a people that no longer can believe anything cannot make up its mind. It is deprived not only of its capacity to act but also of its capacity to think and to judge.”

2.) Fake is Worse Than False

Fake news is likely worse than misinformation in two respects. First, the fake news uttered from some soapbox will often reverberate through the echo chambers until it comes out as something no longer just said, but believed. A lie from the Rose Garden becomes gospel at the dinner table. Second, and more importantly, fake news has a much greater corroding effect on free speech culture. Americans worry not so much that the media are accidentally wrong, but that they are willfully biased. According to a recent poll by Gallup and the Knight Foundation,  “Americans perceive inaccurate news to be intentional – either because the reporter is misrepresenting the facts (52%) or making them up entirely (28%).” While every society can tolerate some degree of insincerity and deception, in America the well of trust has become almost unpotable.

3.) Police Intent, not Content

How, then, do we fix the problem of fake news? We need to police intent rather than content. We do that by authorizing agencies and institutions to regulate and disincentivize deceptive information masquerading as news. Whether those agencies are governmental or corporate is an open question. But, contrary to thinking by folks like Mark Zuckerberg, those agencies should not also monitor the truth of news content. Zuckerberg saw the obvious difficulty in doing so: “I believe we must proceed very carefully though. Identifying the ‘truth’ is complicated.” This is correct, but misses the point. In order to combat fake news, Facebook does not need to become the “arbiter of truth.” Fake news is fake because of its intent, not content. So in order to regulate fake news, we need to delete bot and sockpuppet accounts, not build algorithms that detect false information.

On this score Facebook could improve. In a recent SEC filing, Facebook estimates that up to 5% of its monthly active users are false accounts. That means that as many as 140 million monthly users are using Facebook with deliberately deceptive intent. Moreover, these phony users have been given the ability to design custom bots that automate their communications with fellow Facebook users. Facebook is handing liars a megaphone. That may be good for business, but it is bad for our free speech culture.

Of course, there will be cases of alleged fake news – on Facebook or elsewhere – in which it is difficult to determine if there was an intent to deceive. But in this respect fake news does not differ from defamation. Both depend on determining the intention of the accused, and the burden of proof (for defamation: clear and convincing evidence) is consequently high. When it comes to restricting speech, having such a high burden of proof is a very good thing. It has prevented defamation case law from sliding down a slippery slope, and we should expect the same to hold for fake news regulation. It is no accident, though, that the crackdown on fake news is now coming most aggressively through such cases. Smartmatic recently filed a defamation lawsuit against Fox Corporation, seeking $2.7B in damages allegedly caused by fake news about its products.

This is not to say that there are no grounds for regulating false content. There may be cases where misinformation poses risks so great as to warrant its being removed or otherwise censored. Just as we should not be permitted to yell “fire!” in a crowded theater, there are things we should not be allowed to post on social media because they threaten the safety and integrity of the public sphere in which free speech is possible. But in this current media environment, where fake news is a primary source for such misinformation, to regulate content is to treat the symptom, not the disease. So while regulatory agencies like Facebook’s Oversight Board may deem it necessary to moderate content, their real focus should be on intent.

4.) Cancel Trump, not Parler

If all this is right, then Twitter was probably right to cancel Trump, but Amazon wrong to cancel Parler. According to the Washington Post, while in office President Trump made 30,573 false or misleading claims. The newspaper is reluctant to call any of them “lies,” but only because intent cannot be definitively determined. Nevertheless, a reasonable case can be made that President Trump eroded free speech culture, and that his bullhorn needed to be taken away, his social media accounts shut down, his press briefings no longer aired. For Parler, the case is different. Parler itself has not spread any fake news, although it provided a platform for those who do. Should we cancel Parler for that? Probably not – at least so long as we allow the lights to stay on at Facebook.

There are two lingering worries we might have about regulating fake news and those who produce it. Neither of these worries, though, gives us a compelling reason against regulation.

For one thing, we might fear that regulating fake news invites abuse. A regulating agency might misuse its power and restrict news deemed detrimental to its own interests. This seems to be the fear motivating German Chancellor Angela Merkel’s condemnation of Twitter’s decision to ban Trump. Abuses of regulatory power are no doubt possible, but their likelihood diminishes if we keep in mind that fake news is fake not on account of its false or partisan content, but rather on account of its deceptive intent. If the agency accordingly regulates only on the basis of intent, then it will be less likely to restrict news out of self-interest or greed.

We might also worry that regulation would have an overall chilling effect on free speech. But this, too, seems unlikely. The effect of punishing liars is to encourage people to express claims they genuinely believe, even if they turn out to be wrong. Similarly, the effect of punishing fake news would be to encourage people and organizations to share news they genuinely believe. We should expect, then, that regulating fake news is more apt to stimulate than to stymie the expression of sincere speech. And that would be truly welcome news.

Carlo DaVia

Carlo DaVia is a Lecturer in philosophy at Fordham University, as well as an instructor at the CUNY Latin/Greek Institute.This academic year he will also serve as a fellow at the UC Center for Free Speech and Civic Engagement.