1.1 Introduction: Disinformation and Misinformation Present a Clear and Present Danger to the Project of Democratic Self-Government
The 2024 presidential election in the USA demonstrates, with unmistakable clarity, that disinformation (intentionally false information) and misinformation (unintentionally false information disseminated in good faith) pose a real and growing existential threat to democratic self-government in the United States – and elsewhere too. Powered by social media outlets like Facebook (Meta) and Twitter (X), it is now possible to propagate empirically false information to a vast potential audience at virtually no cost.Footnote 1 Coupled with the use of highly sophisticated algorithms that carefully target the recipients of disinformation and misinformation, voter manipulation is easier to accomplish than ever before – and frighteningly effective to boot.
Meanwhile, some social media companies, such as X (formerly Twitter), have shuttered efforts at meaningful moderation of disinformation and misinformation.Footnote 2 In the USA, conservative, mostly Republican, public officials attack social media companies for their moderation efforts and attempts to design and implement meaningful moderation policies to combat false information on their platforms.Footnote 3 Thus, even as the problem of disinformation and misinformation explodes, doing great damage to the process of democratic deliberation, to the electoral process, and to public confidence in the fairness of voting systems and the outcome of elections, and ultimately to democratic governing institutions, social media companies’ efforts to arrest these trends are both more limited and under public attack.Footnote 4
Nor are disinformation and misinformation uniquely US problems – they constitute global problems. For example, in a recent election in Chile associated with ratifying a new constitution, disinformation and misinformation circulated widelyFootnote 5 – and could easily have affected the outcome (rejecting the proposed new Chilean constitution by a margin of 62 percent against and 38 percent in favor of ratificationFootnote 6). The same held true, in 2016, with the United Kingdom’s Brexit vote – with both Boris Johnson, who would later become UK Prime Minister, and Nigel Farage, leader of the UK Independence Party (UKIP), intentionally disseminating vast quantities of false information (disinformation) to any and every British voter who would listen.Footnote 7 They did so with great alacrity and to good effect.Footnote 8 Indeed, one could cite examples of elections in which disinformation and misinformation might have turned the outcome one way or the other in virtually every democratic polity on Earth. When the margin of an election is razor thin – the final Brexit tally of 52 percent for Brexit to 48 percent against provides a salient example – the marginal voter who makes the majority might well be casting a vote in error.Footnote 9
The consequences of disinformation and misinformation also can be – and are – astonishingly high. Disinformation and misinformation about COVID vaccines, such as the ludicrous claims that they contained tracking chips designed by Bill GatesFootnote 10 and caused sterility in young womenFootnote 11 created serious, and dangerous, headwinds for mass vaccination programs aimed at containing and controlling the spread of the virus. So, too, after the tragic events in Israel starting on 7 October 2023 and continuing thereafter, disinformation and misinformation spread like wildfire within both Israel and the Occupied Territories – creating even more fear, confusion, chaos and distress.Footnote 12 It is undeniable that disinformation and misinformation impose serious social costs on a mass scale, around the world, and do so with great regularity. The question is not whether a problem exists. Instead, the relevant question to be asked and answered is: What, if anything, is to be done about it?
As Judge Guido Calabresi has argued, ‘At one time, America had a virtual monopoly on constitutional judicial review, and if a doctrine or approach was not tried out here, there was no place else to look’ but ‘[t]hat situation no longer holds’.Footnote 13 If we cannot find solutions that work at home, there is certainly no harm in looking abroad to see if countries sharing a common set of core institutional and human rights values have found solutions to shared problems (such as disinformation and misinformation). Thus, a comparative legal analysis can and will yield important insights into what works and what does not.
Because of the global nature of the problem, issues related to disinformation and misinformation would clearly benefit from a comparative legal analysis. What are the best ideas for addressing this problem? What are governments currently doing? How is the media within a given country trying to address these social phenomena? Are grass-roots organizations engaging in effective and broad-based voter education and media literacy campaigns? It would behoove both governments and voters around the world to learn from the experience of other democratic polities that have undertaken efforts to arrest the corrosive effects of disinformation and misinformation on the process of democratic deliberation, the perceived legitimacy of elections, and the health of democratic governing institutions.
By considering carefully and systematically how nations with a shared constitutional commitment to democratic self-government have attempted to address the growing problem of disinformation and misinformation being used successfully to manipulate electoral outcomes, it might be possible to identify the most (and least) promising responses. Again, these are common, or shared, social phenomena that do not respect any national borders. We can and should think globally about how best to reinforce democracy, the process of democratic deliberation that facilitates it, and democratic governing institutions. The chapters that follow will engage with precisely these themes.
To be sure, the problems presented by disinformation and misinformation today are not entirely new. After all, it has always been possible to trick voters into casting ballots based on false information. Throughout time and history, incumbent office holders routinely have sought to exploit voters’ lack of access to full, complete, and truthful information in order to retain their grip on power. So what is different about the problem today? For starters, the scale of the problem and the efficacy of voter deception efforts vastly outstrip anything that democratic polities have seen before. Contemporary efforts at voter deception can be accomplished on a massive scale, at very low cost, with great precision, and with an astonishingly high success rate. All of that being said, however, the problems associated with the dissemination of false information have existed for as long as human societies have used elections to select their leaders.Footnote 14 Accordingly, it would be an overstatement to suggest that the problem itself is an entirely new one. The more plausible claim would be, and is, that the scale and scope of the social costs associated with disinformation and misinformation have increased concomitantly with the revolution – an explosion really – in the ability to disseminate a message to a mass audience instantly and at little to no cost.
Sometimes, it can be too easy to get lost in the weeds of the particular at the risk of losing sight of the bigger picture. For example, whether or not Cambridge Analytica actually manipulated voters by misusing Facebook data to dupe British voters,Footnote 15 a contested claim which the European Union’s data protection commissioner has rejected,Footnote 16 statistical autopsies of the Brexit vote have found that Russian interference, including the active use of disinformation, probably did affect the outcome (which favored leaving the EU by a margin of 52 percent to 48 percent).Footnote 17 Russia, in particular, actively attempted to influence the vote in favor of the United Kingdom leaving the EU.Footnote 18 Thus, the outcomes of elections have been affected – and will be affected in future elections as well – by disinformation and misinformation campaigns. Of course, it bears noting that, with respect to the Brexit vote, Johnson and Farage probably disseminated more disinformation than all of Vladimir Putin’s internet trolls combined. They were also highly credible purveyors of disinformation – which raises another problem with regulating it. How can you regulate disinformation being propagated by an elected head of government or the leader of a major political party?Footnote 19
This type of organized electoral fraud distorts the process of democratic deliberation and, ultimately, undermines the electoral process itself. At this point, it is clear that disinformation and misinformation both constitute a clear and present danger to the process of democratic deliberation and, more generally, to democratic self-government. The question, then, is not whether a problem exists – clearly it does – but rather what if anything can be done to address it more effectively.
In the age of metadata and microtargeting of voters, it has become rather obvious that John Milton, in his iconic Areopagitica,Footnote 20 might have been naïve to posit that Falsity invariably loses out to Truth in the marketplace of political ideas. Milton famously wrote that ‘Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?’Footnote 21 He added, for emphasis, ‘For who knows not that Truth is strong next to the Almighty?’Footnote 22 Milton arguably did not understand social psychology in an age of siloed voters in echo chamber environments.Footnote 23 It also bears noting that Milton’s construction of ‘truth’ possessed a deeply religious connection that would seem to place it at some remove from Justice Oliver Wendell Holmes’s equally famous argument that ‘truth’ constitutes the product of active and ongoing deliberation within a ‘marketplace of ideas’.Footnote 24
A long-held assumption has been that, if a nation creates the architecture of democracy, including regularly scheduled elections, rules for such elections, obtaining and using reliable voting machines and related technologies, creating and enforcing fair procedures for resolving electoral disputes, and the like, then democracy would thrive. This assumption is no longer tenable (if it ever really was). In reality, these are all necessary, but not sufficient, conditions for democracy to function (if not flourish).
How can democracy function and the democratic process reliably produce sound government if the marketplace of political ideas is filled with garbage? What is more, when traditional journalists try to correct these (often grotesque) factual errors, the people who inhabit the echo chambers will frequently fasten themselves more tightly to Falsity’s mast.Footnote 25 As Cass Sunstein observes, ‘[e]cho chambers can lead people to believe in falsehoods, and it may be difficult or impossible to correct them’.Footnote 26 Social scientists have shown, convincingly, that traditional media sources cannot correct these false factual beliefs.Footnote 27 Can government or civil society entities do better? This question, and others like it, need to be investigated and answered.
It also bears noting that traditional journalists, and journalism, seem to be going the way of the dodo bird in today’s increasingly balkanized media market. Rather than adopt a posture of strict editorial neutrality in the newsroom, media entities like Fox News and MSNBC instead lean into their viewers’ political, economic, moral and even religious biases.Footnote 28 Media entities, such as CNN, that attempt to hew scrupulously to the line of editorial neutrality are losing their audiences. Even Fox News, whose infamous tagline is ‘Fair and Balanced’, is bleeding audience share to outlets like One America News Network (OAN) and Newsmax that feature an even stronger partisan and ideological edge to their ‘reporting’.Footnote 29 Thus, at least some media entities that might once have been thought to be part of the solution are now part of the problem – and trap their readers/viewers/listeners in echo chambers. Indeed, the trend in the USA is particularly disheartening. Emerging media outlets that openly and shamelessly traffic in disinformation and misinformation, such as Newsmax and OAN, do not make even the pretense of observing a policy of editorial neutrality.Footnote 30
Compounding the problem, the general public no longer trusts the traditional media – and this distrust is not limited to conservatives. A 2010 Gallup poll found that while 78 percent of conservatives believe the traditional news media are biased, 44 percent of progressives and 50 percent of moderates do too.Footnote 31 Only 36 percent of the overall survey respondents believe mass media reporting to be fair and reliable. A more recent poll produced equally dismal results. It found that most Americans believe the traditional media is untrustworthy and attempts to deliberately mislead the public.Footnote 32 Democrats, who traditionally placed more faith in the media, are growing more wary of it and its reporting. So too, mistrust of the media among independent voters has spiked in recent years.Footnote 33 Thus, what began as a phenomenon primarily affecting Republican, or Grand Old Party (GOP), voters in the USA now manifests across the political spectrum. A 2023 Gallup and Knight Foundation survey shows ‘a low level of trust in the media to the startling point where many believe there is an intent to deceive’.Footnote 34 In other words, voters do not just think journalists get things wrong; they increasingly believe that journalists intend to deceive their viewers, listeners, and readers with disinformation.
What’s more, social scientists have shown that even when traditional media sources attempt to correct widely believed false facts, these efforts fall short (that is, they often do not work).Footnote 35 Sunstein hypothesizes that efforts at error correction not infrequently fail to work because, ‘[w]hen people start with strong convictions and really know what they think, they’re a lot less likely to be moved by contrary arguments’.Footnote 36 Moreover, ‘[i]f you’re strongly committed to a certain belief – say, that climate change is a serious problem – a contrary argument might do little to inform you’.Footnote 37
Consider, for example, the broadly circulated, but patently false, claim, widely known as ‘Pizzagate’, during the 2016 US presidential election. On social media and other media outlets, stories claimed that the 2016 Democratic Party presidential candidate, Hillary Rodham Clinton, was operating a prostitution ring staffed with trafficked children in a Washington, DC, pizza joint (Comet Ping Pong). A great many media outlets, including both the Wall Street Journal and Fox News, repeatedly reported that the Pizzagate claim was completely false – a total and complete fabrication. Yet reliable polling data during fall 2016 showed that 46 percent of Trump voters believed that Clinton was personally involved in running a major child sex-trafficking operation at Comet Ping Pong.Footnote 38
Such rumors not only distort the electoral process – they also put people’s lives and safety at risk. A man from North Carolina fired a gun into Comet Ping Pong as part of an effort to rescue the (nonexistent) sex-trafficked kids.Footnote 39 Perhaps the most astonishing set of widely held beliefs relate to the QAnon conspiracy, which posits that the Democratic Party is merely a front organization for a large, well-organized pedophile ring.Footnote 40 At the same time, a 2018 Gallup poll found that almost 80 percent of Democratic Party voters believe, falsely, that Russia directly stuffed the ballot boxes in the 2016 presidential election to rig the outcome for Trump.Footnote 41 In point of fact, no credible evidence exists of any direct Russian tampering with the 2016 presidential vote totals.
The serious distortionary effects of disinformation and misinformation do not respect ideology or partisan identity. As the famous tagline from the X Files put it, ‘[t]he truth is out there’. But, even though it is out there, many voters resolutely refuse to credit it.Footnote 42 To state the matter simply, we face a serious problem with the operational mechanics of democracy that requires the formulation and implementation of an effective set of solutions – and this is a problem that does not respect national borders.
What, if anything, can be done to empower voters with the information that they require in order to cast prudent and well-informed ballots? To be clear, the coeditors and contributing authors do not take the position that only votes for the Democratic Party’s (or other progressive political parties’) candidates are rational. We do not have either a partisan or ideological ax to grind. Instead, we are deeply concerned about the marginal voter – meaning the voter who makes the majority – casting a well-informed ballot (meaning a ballot that does not rest on objectively false factual predicates). At the same time, however, the prospect of the government declaring ‘truth’ might make a great many people very nervousFootnote 43 – such a censorial power would present a serious risk of distortion to the process of democratic deliberation.Footnote 44 Moreover, free speech scholars and theorists routinely posit that the First Amendment should be understood primarily as a means of facilitating and safeguarding the process of democratic deliberation that informs the act of voting from government efforts to censor or distort it.Footnote 45
In fact, one of the most difficult problems associated with formulating policy responses that would do more good than harm involves defining, in a fashion that would garner widespread acceptance across the ideological and partisan spectrum, what constitutes ‘false’ speech. To borrow Justice John Marshall Harlan II’s wonderful turn of phrase, ‘one man’s vulgarity is another’s lyric’.Footnote 46 In the context of disinformation and misinformation, one person’s absurd and obvious falsehood is another’s fundamental truth. To provide just one highly salient example, Donald Trump’s oft-repeated ‘Big Lie’ about massive fraud in the 2020 presidential election is avidly believed as the gospel truth by an astonishing 71 percent of GOP voters.Footnote 47 What institutions – if any – can set the record straight for these badly informed voters? Certainly not The New York Times, CNN, or NPR.
Despite the real and serious problem with defining disinformation and misinformation in a way that enjoys broad acceptance, we have to make the effort.Footnote 48 After all, as Alexander Meiklejohn, generally regarded as one of the principal proponents of the democratic self-government theory of freedom of expression, strenuously argued, ‘[w]hen a free man is voting, it is not enough that the truth is known by someone else, by some scholar or administrator or legislator. The voters must have it, all of them’.Footnote 49 From this vantage point, ‘[t]he primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which American Individualism and the Constitution bear upon our common life’.Footnote 50
Thus, the First Amendment’s principal purpose arguably inheres in its role in facilitating democratic self-government.Footnote 51 In turn, the process of democratic deliberation that precedes an election, at least in theory, will equip voters with the information that they require to cast well-informed ballots on election day. Free speech must enjoy robust constitutional protection against government efforts to censor it because free and open debate among citizens constitutes an essential condition for democracy, which, after all, relies on free and fair elections to imbue governing institutions with legitimacy.Footnote 52 As Meiklejohn stated his case, ‘[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said’.Footnote 53 But how can these principles work in a society filled with siloed voters inhabiting media echo chambers? The very process of open debate and engagement that Meiklejohn argued is essential to making democratic self-government work is dying on the vine.
At the same time, however, using the metaphor of a New England town hall meeting for the ongoing process of democratic deliberation, Meiklejohn suggested that there might be a role for government to play, in the form of a ‘chairman or moderator’ who will call the meeting to order and enforce ‘rules of order’.Footnote 54 Meiklejohn observed that ‘[h]is business on the negative side is to abridge speech’.Footnote 55 What if a person attempts to hijack the discussion with irrelevant materials? In such circumstances, the ‘moderator’ would have a duty to silence such a speaker:
Anyone who would thus irresponsibly interrupt the activities of a lecture, a hospital, a concert hall, a church, a machine shop, a classroom, a football field, or a home, does not thereby exhibit his freedom. Rather, he shows himself to be a boor, a public nuisance, who must be abated, by force if necessary.Footnote 56
In sum, ‘[t]he First Amendment, then, is not the guardian of unregulated talkativeness’.Footnote 57 However, discussing the abstract necessity of rules of order that structure collective democratic deliberation to facilitate rational decision making by voters is a very different project than actually drafting and then operationalizing such rules.
And, again, like language itself, which only has meaning within the context of particular interpretive communities,Footnote 58 arriving at a consensus about ‘truth’ in the marketplace of political ideas is much easier said than done. The devil lies in the details of any such undertaking – and, again, it is quite crucial that the cure not be worse than the disease; government interventions in the marketplace of political ideas to correct for disinformation and misinformation must not prove to be counterproductive. More specifically, if government regulations actually empower and enable the purveyors of disinformation and misinformation, it would be better for government to leave the marketplace of political ideas to operate on an unregulated basis.
With so many voters now inhabiting echo chambers on social media platforms, and engaging in siloing behavior, the process of democratic deliberation faces an existential threat: We the People no longer regularly and reliably interact with each other about candidates for public office or the issues of the day. Sunstein is surely correct to posit that, ‘[i]n a well-functioning democracy, people do not live in echo chambers or information cocoons’ but, instead, seek to ‘see and hear a wide range of topics and ideas’.Footnote 59 Alas, this is not how public debate works in the contemporary USA – or, for that matter, in most democracies across the globe.
Rather than seeking to engage those with whom they vehemently disagree, voters tend to seek out interactions with folks with whom they generally agree on issues ranging from the teaching of Critical Race Theory to whether immigration laws should be harsher or more welcoming to would-be immigrants.Footnote 60 One might ask, ‘Well, why should this matter?’ It matters a lot.
Perhaps most problematic: A great many people have and will cast ballots on election day that rest entirely on verifiably false factual premises. To be clear, by ‘verifiably false premises’ I do not mean mere disagreement about matters of public policy. For example, consider the claim that lower corporate taxes increase middle-class wages (maybe so, maybe not, one can argue the point). A claim of this sort cannot really be falsified. On the other hand, consider claims such as ‘Donald Trump won the 2020 election’ and ‘ivermectin cures COVID‑19 infections’ (as well as being an effective treatment for worming horses). Both of these claims are verifiably false; they can be shown to be so using objective forms of proof; they are not matters about which reasonable people might plausibly disagree. Whether disseminated with knowledge of their falsity or in good faith, these statements can and will mislead voters into casting poorly informed ballots.
Even if reasonable minds might all readily agree that disinformation and misinformation constitute threats to democracy, finding agreement about the most promising solutions will prove a great deal more difficult than identifying the problem and its sources. Three general forms of intervention seem potentially available: (1) government regulation of speech markets to identify and eradicate disinformation and misinformation, (2) self-regulation by the press, including traditional print media, broadcasters, cablecasters and social media, or some combination of self-regulation augmented by government regulation by ‘a raised eyebrow’,Footnote 61 and (3) interventions by nongovernmental organizations (NGOs) and civil society organizations. In the chapters that follow, authors will propose interventions that fall under each of these larger headings.
Moreover, by seeking solutions on both a local and a global scale, the coeditors and contributing authors hope that it might be possible to learn from reform efforts that already have been undertaken within one or more domestic legal systems. No one jurisdiction is likely to get the regulatory balance exactly right. Accordingly, by considering regulatory responses to disinformation and misinformation across jurisdictions, it should be possible to better understand what approaches present the most upside potential and the least downside risk.
Justice Louis Brandeis, commenting on the federal system in the United States, observed that ‘[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’.Footnote 62 What is true of states or provinces in a federal system also holds true for nation-states in the global community. Although an attempted legal reform adopted in Chile or South Africa might or might not present a good fit for Germany or India, there surely is merit in at least considering whether a solution that works in one place might well work in another. And so too, the reverse also holds true – if a reform fails to do much good in one place, it would be prudent to consider whether local legal, social, and cultural conditions are sufficiently different in another to predict with any degree of confidence that the solution might work in one jurisdiction despite having failed in another.
1.2 New Government Regulations That Would Safeguard the Process of Democratic Deliberation
The first vector of potential intervention, new government regulations, is perhaps the most obvious. The government protects people against false claims in initial public stock offerings, in the promotion and sale of prescription drugs, and with respect to the terms of consumer credit. If the government can intervene in speech markets to protect consumers against financial fraud, it stands to reason that it could also adopt rules and regulations to protect We the People against forms of electoral fraud.Footnote 63 As Frederick Schauer correctly observes,
‘distrust of government’ theories, for example, cannot explain why that distrust has not been extended to the Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), the Department of Justice, or judges managing a trial – all of which involve government officials making content-based decisions about speech and none of which is now covered by the First Amendment.Footnote 64
Yet it is far from clear that government regulation can or will work in this context because of disagreement regarding what constitutes ‘false speech’.
In the United States, of course, the conservative Supreme Court and the First Amendment’s Free Speech Clause likely limit the ability of the federal or state governments to adopt direct regulations of speech markets.Footnote 65 Under current First Amendment precedents, even intentionally false speech enjoys constitutional protection absent a particularized showing of social harm resulting from the false speech.Footnote 66 The commitment to protecting speech and maintaining a largely unregulated marketplace of ideas even trumps efforts to protect children from potential harm associated with exposure to extreme forms of violence.Footnote 67 Thus, the prospects for government efforts to regulate disinformation and misinformation in the USA are, at best, bleak (and that assumes that Congress or state legislatures could muster the political courage to act in the first place). On the other hand, however, speech regulations do presently exist in the USA to protect consumers from fraud – for example in making credit offers, in issuing stocks for publicly traded companies, and for prescription medications.Footnote 68 In areas removed from the political process, anti-fraud speech regulations are commonplace.
It is also true that, in the wider world, government regulation of speech markets is not deemed presumptively suspect (or, more pejoratively, illegitimate). This book’s global focus will feature sustained treatment of jurisdictions, such as Germany, that take the position that government regulation enhances rather than degrades the marketplace of political ideas. Potential regulatory responses might be related to deterring disinformation and misinformation, but they might also relate to better civics education and preparing young people for effective engaged citizenship.Footnote 69 Government efforts to promote media literacy also could comprise part of an effective regulatory program to check the corrosive effects of disinformation and misinformation.
Despite the US Supreme Court’s assumption that government regulation of the marketplace of political ideas is invariably and inherently distortionary – a point of view that its Citizens United decision invalidating key provisions of federal campaign finance reform legislation best exemplifiesFootnote 70 – in the global context, by way of contrast, government regulations of speech markets are not viewed as intrinsically harmful to the process of democratic deliberation. Showcasing this reality will be an important contribution to ongoing debates in both the United States and the wider world over the proper role of government in addressing the threat that disinformation and misinformation present to the electoral process and, ultimately, to the legitimacy of democratic governing institutions. It may be that mistrust of government makes regulatory solutions that work in the Chile or South Africa impossible to implement in the USA, but considering examples of regulatory interventions in other democratic polities certainly would do no harm.
It is a bit puzzling to understand why government regulation produces so much push-back from at least some corners – not only in the USA but in other jurisdictions as well. For example, if a drug promoted as capable of curing pancreatic cancer simply does not work, most consumers would want to know that fact and, if told that human trials showed that the drug does not work, would not want to use it. By way of contrast, however, millions of Americans genuinely believe that Trump won the presidency in the 2020 general election – but had it stolen by corrupt state election officials (many of whom happen to be partisan Republicans, like Brad Raffensperger, Georgia’s Secretary of State). Unlike a false claim associated with drug efficacy, those who believe the Big Lie are not much inclined to listen to or credit objectively true information showing that the 2020 general election in the USA was in fact free and fair.
At least in the USA, government efforts to address disinformation and misinformation have been weak and entirely ineffectual. For example, in April 2022, the Biden Administration briefly flirted with operating a ‘Disinformation Governance Board’ (DGB) within the Department of Homeland Security (DHS). Locating the DGB within the DHS probably did not constitute the most prudent approach to building widespread public support for either the board or its mission. Having a truth board located within DHS simply contributed to the narrative that the effort was a misguided and partisan effort to impose Orwellian ‘Big Brother’ controls over the democratic process. After opening up shop, on 27 April 2022,Footnote 71 the Biden Administration shuttered the DGB ‘temporarily’ three weeks later on 18 May 2022,Footnote 72 and finally, on 24 August 2022, converted this temporary pause into the permanent abolition of the DGB.Footnote 73 The DGB was well-intentioned but a complete and total public policy failure.
Clearly, something needs to be done to address efforts to propagate electoral frauds on the voters. However, some solutions, like the DGB, may actually exacerbate rather than mitigate the problems that disinformation and misinformation pose for democracy. A big part of the problem is that, in places with hyper-polarized electorates (the USA and Israel both provide salient examples), the government of the day has little, if any, credibility with the opposition. Thus, in the USA, Republican voters are not much inclined to trust the Biden Administration or to assume that it is acting in good faith to advance the public good. The same held true with respect to Democratic Party voters under the Trump Administration. Accordingly, when an administration undertakes a reform initiative like the DGB, voters on one side or the other see an effort not to provide voters with truthful and accurate information related to the electoral process, but instead a nefarious scheme to silence the administration’s most vociferous critics.
To be sure, one could take the view that both government and private regulation of truth would be intrinsically distortionary of the democratic process. Yet why could not government, rather than serving as a heavy-handed censor of disfavored political speech, be something more like South Africa’s Truth and Reconciliation Commission? A kind of bipartisan, or better yet nonpartisan, fact-checking entity? Even if false information cannot be banned, why cannot government establish credible institutions that could help to identify and disseminate the truth? In the USA, for example, citizens trust the government, through an administrative agency (the FDA), to tell them that cigarettes cause lung cancer. And the federal courts have sustained compelled speech by entities that sell cigarettes; they literally must put warning labels on their own products.Footnote 74 If the First Amendment can tolerate compelled speech to promote the public’s physical health, why cannot it also tolerate labeling efforts to protect its political health? The kinds of false facts circulating on the web are not any less objectively false than ‘cigarettes promote lung health’ or ‘smoking will enhance your life span’. If it is possible to regulate – and effectively undermine through mandatory disclosures – these kinds of bogus health claims, then why could not it be equally possible to regulate objectively false political speech that contains empirically false assertions of fact that undermine the community’s ability to be effectively self-governing?
If critics of new government regulations aimed at combating disinformation and misinformation are correct, and it is simply not possible to take any regulatory steps to address the corrosive effects of fake news, then the First Amendment will be doing as much, if not more, to kill democratic self-government than to sustain it. Such an outcome would represent a total and complete inversion of Meiklejohn’s normative claim that the First Amendment’s principal and primary purpose is to facilitate the process of democratic self-government.Footnote 75
If one embraces the democratic self-government rationale for protecting speech, then it becomes essential to keep an open mind on the question of the appropriate role of the state in the age of fake news. The First Amendment, as an enabler of democratic deliberation, arguably should be a basis for sustaining, not invalidating, government regulations that seek to ensure that voters are able to cast well-informed ballots.Footnote 76 Make no mistake, free speech potentially plays the role of the villain here. Of course, the cure must not be worse than the disease,Footnote 77 but we should not reflexively assume that government intervention invariably and inevitably would do more harm than good. In fact, thoughtful, well-designed regulatory responses might constitute the best response to the problem of disinformation and misinformation – and such regulations could conceivably be squared with commitments to the First Amendment project of viewpoint neutrality.Footnote 78
What is more, we need to think systematically about how to regulate dominant social media entities, such as Meta (Facebook), X (Twitter), YouTube, and TikTok, as well as dominant internet search engines, such as Google and Bing. In times gone by, a private company could own a dominant voice within a particular community or perhaps have pronounced strength over one specific modality of speech more generally (such as William Randolph Hearst and newspapers). For example, owning the most watched television station in Dallas or the most listened‑to radio station in Los Angeles potentially would give the owner an outsized voice in local politics within those communities.
Today, dominant media companies do not just own a commanding presence within a particular media market – they essentially own the entire medium of communication. This reality makes the need for some form of government regulation pressing and substantial. Simply put, these entities constitute potential choke points to the on-ramps of today’s information superhighways. It is difficult to understand, if private censorship of the marketplace of political ideas constitutes a social evil, why only government censorship presents a cause for collective concern – simply put, the dangers of private censorship support a credible argument in favor of collective action through democratic governing institutions.Footnote 79 As Owen Fiss cogently argued almost forty years ago, ‘[t]he state, like any other institution, can act either as a friend or enemy of speech and, without falling back on the libertarian presumption, we must learn to recognize when it is acting in one capacity rather than another’.Footnote 80
1.3 Self-Regulation, Regulation by ‘Raised Eyebrow’ and the Role of the Traditional Press, Mass Media and Social Media in Successfully Combating Disinformation and Misinformation
Perhaps self-regulation by the media, of all stripes, would constitute a better approach than new government regulations for addressing the myriad problems associated with disinformation and misinformation. Alternatively, the government could regulate indirectly, by ‘raised eyebrow’,Footnote 81 by requiring media entities to address the problem of disinformation and misinformation effectively on their own or face the prospect of more direct, and invasive, government regulations of fake news. One or the other approach could work to mitigate the worst social effects of disinformation and misinformation.
In an ideal world, the traditional print press, mass media, and social media would all engage in self-regulation to combat the harms that disinformation and misinformation inflict on democratic deliberation and the electoral process. What ‘best practices’ might exist for content moderation for social media platforms like Meta and X?Footnote 82 What kinds of internal and community-based controls might be adopted to combat disinformation and misinformation? What technological opportunities, and limits, exist with respect to algorithmic forms of content moderation? What kinds of self-regulation seem to work best – and which seem most ineffectual?
We know that, for better or worse, in today’s world a great deal of democratic discourse will not take place in physical spaces, such as on public streets and sidewalks, in parks, or in traditional town squares. Instead, it will take place in virtual forums hosted by a handful of dominant social media companies. Again, for better or worse, and arguably for the worse, these companies enjoy a stranglehold over important aspects of the process of democratic deliberation and, hence, over the process of democratic self-government itself. Moreover, and as Ash Bhagwat has observed, in the age of new media, ‘we are all the press now’.Footnote 83 Even so, he laments ‘the collapse of even a basic factual consensus on what the world actually looks like’.Footnote 84 Bhagwat worries that if we are no longer able to engage in well-informed and reasoned political discourse, democratic deliberation will not effectively or reliably facilitate rational electoral decisions.Footnote 85
As noted earlier, a quite logical response to the problem of the propagation of objectively false facts would be increased regulation of these modalities of communication – in the hope of exorcising disinformation and misinformation from our virtual public square. However, Bhagwat cautions, with good reason, that the Supreme Court would likely invalidate both new government regulatory controls over the internet and efforts to require dominant social media platforms to exercise more effective editorial control over false speech, ‘because the Supreme Court (for better or worse) has interpreted [the First Amendment’s Free Speech Clause] to protect even intentional falsehoods’.Footnote 86 More broadly, he argues that ‘it seems a supremely bad idea in a democracy to permit the government to legislate truth or falsehood’.Footnote 87
Bhagwat also rejects self-regulation by dominant media platforms because he is ‘almost as unenthusiastic about having Mark Zuckerberg be my arbiter of truth as, say, Donald Trump’.Footnote 88 In sum, in his view, ‘legislating the truth is a cure worse than the disease’.Footnote 89 His proposed solution would involve the adoption of government policies that encourage private associations to ‘crowdsource’ the truth.Footnote 90
One might reasonably question the prospects for using crowdsourcing truth as an efficacious response to the problems associated with disinformation and misinformation. As Sunstein observes in #Republic,Footnote 91 the siloing of voters inside social media echo chambers makes correcting empirically false factual beliefs very difficult – perhaps even impossible. Unfortunately, the empirical evidence simply does not support the conclusion that crowdsourcing the truth would actually lead to more voters casting ballots based on accurate information – rather than patent falsehoods. The internet and virtual forums have greatly democratized the ability of ordinary citizens to reach a mass audience (at very little cost).Footnote 92 But these platforms also have greatly enabled and amplified disinformation and misinformation that plainly distorts the democratic process by deceiving voters into casting ballots based on false information.
Indeed, the lessons of the 2020 general election in the USA and Trump’s Big Lie seem to teach us that Milton was just plain wrong. When Truth and Falsity wrestle in today’s marketplace of political ideas, Falsity plays dirty and kicks Truth’s ass. We have something like 50 million Americans who firmly believe former President Trump’s Big Lie that he actually won both the popular and Electoral College votes in the 2020 general election. How can democracy function when the mechanism of conveying democratic legitimacy – the imprimatur of the people via their ballots – has been poisoned and rendered illegitimate by lies with widespread currency?
Simply put, monopoly private control over dominant forms of social media is not conducive to maintaining democratic deliberation. This was true even before Elon Musk bought Twitter, renamed it ‘X’, to better fit his corporate empire’s branding practices, and turned it into his own personal free speech playground – and it is doubly true today. Comparing today’s dominant social media companies to the newspapers or television stations of yesteryear constitutes a false equivalence. The degree of control that the owners of dominant social media platforms, such as Musk and Zuckerberg, enjoy over important forums for democratic discourse and the considerable influence it gives them to shape (if not control) public debate over critical questions of the day would have made William Randolph Hearst blush.
To be sure, legal scholars like Fiss and Jerome Barron sagely warned about the dangers of concentrated ownership of dominant media entities creating the power to censor the news and information available to the body politic – thereby distorting the process of democratic deliberation.Footnote 93 Prior to the internet era, television, radio, and newspapers did indeed rule the media roost – but this is no longer so. And even in times gone by, when there was the problem of unduly concentrated media ownership of over-the-air, analog broadcasting stations, considerable competition for an audience still existed. Today, that simply no longer holds true.
We will likely need new government regulations. Just as new regulations were necessary to prevent fraud on consumers, new regulations are plainly needed to prevent fraud on the voters. In the aftermath of 6 January 2021, the question we should be asking and seeking to answer is how might the power of the state be used to support, rather than to undermine, the kind of civic engagement essential to making elections work as a means of holding government accountable?
Meta (formerly Facebook) dominates social sharing among self-constituted groups. How should one reach a mass audience, reliably, via a short promotional burst (whether to promote a commercial product or a candidate for public office)? X (formerly Twitter). Web searches? Google or Bing. Media sharing? YouTube (which is Google/Alphabet, yet again). Twitter completely banished Trump from its platform after the 6 January 2021 assault on the US Capitol – before Musk welcomed The Donald back on to the platform on 19 November 2022.Footnote 94 One might posit that the company’s action came too late and also constituted a gross overresponse. By the time Twitter acted, the damage of the Big Lie had already been done – something like 70 percent of GOP voters view President Joe Biden as an illegitimate president who lost the election but became president anyway.
Silencing Trump’s tweets might have reduced the risk of another armed insurrectionist mob attacking the capitol – which is obviously to the good. But what about the weeks – more like months and years, actually – that Trump falsely claimed the nation’s voting system was rigged and that if he lost an election, his loss simply served to prove that the election had been stolen from him? Those lies were propagated to millions of his followers, for years, without any regulatory response or reaction by Twitter. The situation is deeply depressing – but easy solutions do not seem to exist.
Of course, even ‘responsible’ media entities, like CNN, constitute part of the problem. For reasons that are far from self-evident, CNN decided it would be a good idea to host a Trump-free airtime campaign event, in the ostensible form of a ‘town hall meeting’, on 10 May 2023 – in terms of disinformation and misinformation, it constituted a superspreader event.Footnote 95 Despite repeated efforts by the host and moderator, Kaitlan Collins, to fact check The Donald in real time, the event descended into a partisan campaign rally rather than a public affairs program. It proved completely impossible to fact check Trump in real time. No doubt thousands of voters who might have harbored doubts about the Big Lie became True Believers after watching Trump’s astonishing, and likely highly effective, bravura performance. He also managed to turn a thirty-seven-count federal criminal indictment for stealing and then mishandling top secret government documents into a focal point for a campaign rally as well as a fundraising opportunity (raising $6.5 million in the first twenty-four hours after the indictment was issuedFootnote 96). Say what you will about The Donald – he knows how to market a product and the product he most excels at marketing is himself.
Attempts to correct the record by mainstream media entities, even those with a well-known conservative editorial bent, like the Wall Street Journal, do not work (at least reliably). In fact, because of siloing and echo chamber effects, the more that mainstream media entities such as CNN and the Wall Street Journal attempt to call out disinformation, the more strongly those who credit these falsehoods will cling to them.Footnote 97 As Professor Sunstein explains, efforts at error correction by the traditional press frequently ‘backfire’Footnote 98 and ‘[t]he result of the correction is to increase polarization’.Footnote 99 Although some social scientists contest Sunstein’s claim, good evidence suggests that siloing and echo chambers in social media outlets do make at least some voters less receptive to accepting empirical truths.
The ubiquity of disinformation and misinformation plainly distorts our electoral and governing processes. Again, there’s nothing heroic about intentionally false speech that hoodwinks voters into casting misinformed ballots on election day. Rather than facilitating democratic self-government, this kind of speech disrupts and distorts it. But if these entities, at least to date, have proven incapable of reliable self-regulation, what, if anything, can be done? Sunstein questions why the fact of ownership of a principal means of democratic deliberation should imply a complete freedom from government regulation or the imposition of any public interest duties. He acknowledges that, ‘[i]f we believe that the Constitution gives all owners of speech outlets an unabridgeable right to decide what appears on “their” outlets, the answer is clear’Footnote 100 – namely, the government cannot require any mandatory moderation to correct for disinformation or misinformation. Sunstein goes on to ask, ‘But why should we believe that?’Footnote 101
In my view, there must be First Amendment ‘easements’ on this private property, an AT&T-style ‘breakup’ of these companies to limit their reach by creating meaningful competition, or perhaps both. Indeed, the twentieth-century model of telephone regulation arguably fits pretty well.Footnote 102 So too the regulatory model that governs the once-dominant wireline cable system operators (CSOs).Footnote 103 The federal government treated both dominant telephone companies and CSOs as common carriers and imposed access requirementsFootnote 104 – simply put, AT&T and Comcast cannot decide who can use their networks to communicate. They lack carte blanche authority to deny access to third parties to their modalities of speech.
If we think of Facebook not as a speaker, but as a means of speaking, the analogy to AT&T works pretty well. The telephone company, in the days of Ma Bell, permitted people to speak with each other over its network – AT&T itself never generated content. In other words, the telephone served as a conduit for the speech of others, rather than a conduit for the speech of AT&T. And, under the regulatory scheme Congress put in place in 1934, AT&T could operate as a monopoly, or near-monopoly, service provider only if it agreed to comprehensive regulation, including rate regulation, and a policy of serving any and all would-be customers who agree to pay the tariffed rates. These rules arguably should be applied to dominant social media companies.Footnote 105
CSOs are a bit different, in that they quite often own cable stations that produce and distribute content – unlike the telephone company, they perform mixed functions as a means of transmitting the speech/content of third parties as well as their own content. And this is precisely why Congress, in 1992, required cable system operators to fill a minimum number of channels with nonaffiliated cable stations,Footnote 106 required them to carry broadcast stations,Footnote 107 and forced them to offer carriage on a ‘leased-access’ basis.Footnote 108 Because vertically integrated CSOs could and did use their dominant position to silence would-be competitors, it was necessary to regulate access to cable systems to ensure that they did not use their monopoly power over distribution of video content to achieve a monopoly over the creation and distribution of content.
Thus, government regulation of modalities of speech is, at least potentially, the solution, not the problem. Extreme concentration of ownership and the utter absence of competition is the problem. Unfortunately, however, too many legal scholars seem to assume that regulation of dominant social media outlets would necessarily involve content-based discrimination against disfavored speech. Some kinds of regulations would, indeed, likely involve content – the FDA, SEC, and FTC all enforce regulations that impose a variety of civil and criminal liabilities for false speech. But some of the problems relate to companies pursuing policies that promote profits rather than democracy and effective self-government. They are able to do this, at least in part, because of their monopoly positions.
This is not to say that self-regulation or regulation by raised eyebrow/best practices is hopeless. It could work. But failed efforts to make commercial television stations perform public interest duties, including producing and airing high quality public affairs, local, and children’s educational programming, offer a strong cautionary note.Footnote 109 We should, of course, push privately owned media companies, including social media, to try harder and do better at moderation. But if those efforts fail, we must be open to the deployment of stronger regulatory medicine.Footnote 110 It bears noting that many dominant social media companies, such as X and Meta, are radically reducing the paid staff members charged with enforcing the platforms’ terms of service (including their announced moderation policies).Footnote 111 This, of course, constitutes movement in exactly the wrong direction.
For example, we could imagine government regulations that would reduce, although not eliminate, the problems associated with both siloing and fake news. Make no mistake: these work together in a synergistic fashion to distort the marketplace of political ideas. It takes siloing to create a committed QAnon follower.Footnote 112 For example, until the 1980s, broadcasters had a regulatory obligation to provide a right of reply to people who were attacked (sustained against a First Amendment challenge in Red LionFootnote 113) and a concomitant duty to cover news in a balanced fashion (the ‘fairness doctrine’). Why could not Facebook or Twitter operate under the exact same legal duty? (Better still, these companies could adopt moderation policies on a voluntary basis that incorporate these principles.) A personal attack rule, for example, would permit someone like Hillary Rodham Clinton to directly engage with QAnon groups on Facebook and Twitter. To be sure, such an approach might, on first blush, sound wild or hopelessly unrealistic or perhaps terminally naïve. And perhaps most QAnon devotees would tune out Clinton’s exercise of a right of reply. But surely not all of them would. The problem is that these social media companies find it highly profitable to create intensely focused interest groups and then permit them to listen only to each other (in other words, social siloing within an echo chamber).Footnote 114
Regardless of whether one finds my proposed reform proposals persuasive, if the First Amendment, including the Speech, Press, Assembly, and Petition Clauses, is at its essence about enabling democratic self-government, then we cannot continue to observe a simplistic public/private distinction that treats any government regulation of the principal modalities of democratic deliberation as an unacceptable betrayal of the First Amendment while permitting private companies to adopt and enforce policies that are increasingly rendering the USA entirely ungovernable. As Justice Robert Jackson once sagely observed, if at all possible, the US Constitution in general, and the First Amendment in particular, should not be construed in a way that renders either a ‘suicide pact’.Footnote 115 Constitutional logic clearly points in the direction of a greater role for the state in creating the conditions necessary for We the People to deliberate collectively about what our government should, and should not, be doing.
Conceding the need for government regulation should not imply, however, that social media companies should not of their own volition make best efforts at devising and implementing moderation policies aimed at controlling and correcting widely circulating, empirically false information. The problem with self-regulation is that when socially responsible action comes into conflict with maximizing shareholder returns, corporate management almost invariably will put profits over the common good (or the production of public goods).Footnote 116 The US government’s repeated, failed, efforts to force commercial broadcast networks to create and air high-quality children’s educational television programming provides a telling example.Footnote 117
We cannot realistically expect for-profit, publicly traded corporations to behave altruistically.Footnote 118 There is also nothing wrong with the management of publicly traded corporations working diligently to improve a company’s bottom line.Footnote 119 Because most corporations operate largely, if not exclusively, from a profit motive, government regulations probably will be needed to better align the bottom line with the common good. That said, the devil most certainly lies in the specific details of any particular set of regulatory interventions. For example, direct forms of government control, up to and including censorship of social media content, or efforts by the government to proclaim official truths, would almost certainly be met in the USA with widespread public opposition and derision. By way of contrast, less direct, ‘soft’ regulations – regulations by raised eyebrow or encouragement to ‘voluntarily’ adopt best practices – that create incentives for effective and reliable moderation by dominant social media companies might work. Taking this course also would plainly constitute a better regulatory approach than ham-fisted – and likely ineffective – efforts by the government to oversee social media content on a day-to-day basis (such as the Biden Administration’s ill-fated DGB). Thus, self-regulation by the media, perhaps with a bit of government encouragement, might prove to be far more effective at countering disinformation and misinformation than more direct forms of government regulation.
1.4 The Potential Role of Nongovernmental Actors and Civil Society Organizations in Safeguarding Democracy and the Democratic Process
Civil society organizations and NGOs present yet another potentially fruitful source of solutions to the problems created by disinformation and misinformation. Both NGOs and civil society organizations, including, for example, educational institutions, civil rights organizations, labor unions, churches, civic groups, professional associations, and even social organizations might individually and collectively work both within their own memberships and within the larger community to combat the ill-effects of disinformation and misinformation. In the context of COVID-19 vaccinations, for example, the most credible advocates of vaccination within certain minority communities in the USA were medical professionals and clinics already working within these communities. In other words, NGOs and civil society organizations possess credibility with their members – all potential voters – that the government and media might well lack.
How might these institutions, with their demonstrated ability to speak credibly to their memberships, be enlisted to help more voters cast well-informed ballots on election day? It may well be, because of pervasive mistrust of both the government and traditional media entities within some communities, that NGOs and civil society organizations present the most promising means of countering efforts to trick and deceive voters. Public polling data clearly establish that large swaths of the voting public deeply distrust both the government and media entities. By way of contrast, however, NGOs and civil society organizations might have the necessary credibility to check effectively disinformation and misinformation circulating within their memberships.
After all, if a person trusts an organization and voluntarily associates with it by joining it, that person is far more likely to trust information propagated by the organization. Because the source of voter education or media literacy efforts has credibility with those being targeted, the intervention stands a much better chance of success. As several of the chapters that follow demonstrate with convincing clarity,Footnote 120 good cause exists to believe that NGOs and civil society organizations could successfully engage their members with both voter education and media literacy efforts. The most obvious problem with this potential solution is the broad-based decline of voluntary membership organizations – in the USA and everywhere else too. Simply put, civil society organizations, including professional associations, churches, civic organizations, fraternal associations and clubs, as well as labor unions are all experiencing broad declines in both interest and membership.Footnote 121 These civil society organizations are suffering loss of membership and a concomitant loss of social visibility and cultural relevance. Once again, at least arguably, technology and the internet are to blame.Footnote 122
Solutions rooted in NGOs and civil society organizations would require placing reliance on social organizations that, if not quite extinct, seem to be trending in that direction. Nevertheless, because these organizations enjoy the confidence of their (ever-dwindling) members, they could play a significant role in successfully combating the social ill-effects associated with disinformation and misinformation. And because these entities are almost invariably private and not directly connected to the government, their efforts to address disinformation and misinformation would not trigger any First Amendment problems. Simply put, NGOs and civil society organizations are not the state itself and are not bound by the same legal and constitutional constraints applicable to a legislature or a government administrative agency.
1.5 Seeking Wisdom in Crowds: Comparative Law Can Provide Important Insights into How Best to Address Disinformation and Misinformation
A common aphorism, rooted in Aristotle’s Politics,Footnote 123 is the idea that there can be wisdom in crowds.Footnote 124 In other words, a group of individuals can sometimes better define and solve a problem than an individual working alone. It is our hope that Disinformation, Misinformation and Democracy will prove to be a useful resource for thinking about how best to safeguard the process of democratic deliberation, and ultimately democracy itself, from being subverted (or, worse yet, destroyed). In the chapters that follow, a highly talented group of leading scholars of free speech and the democratic process will attempt to address what might be done to make the world safe, or at least safer, for democracy and the process of democratic self-government. The contributing authors, sometimes focusing on a single jurisdiction and sometimes comparing approaches across several jurisdictions, will analyze and critique potential solutions rooted in government regulation, in the press/mass media/social media self-regulating or responding to limited government mandates to address disinformation and misinformation, and on the actions and activities of NGOs and civil society organizations to counteract disinformation and misinformation.
In Part I, Robert Post (Chapter 2) and Andrew Kenyon (Chapter 3) engage the theoretical and policy questions associated with efforts to curb the adverse social effects of disinformation and misinformation. Post focuses on the difficulties of moderation of false information on social media platforms whereas Kenyon addresses issues associated with arresting false information on social media, broadcast media, and in print media. The contributing authors in Part II, Indra Spiecker (Chapter 4) and Eduardo Bertoni (Chapter 5), tackle the issues and problems associated with the government itself as a purveyor of false information.
In Part III, András Koltay (Chapter 6) and Bernát Török (Chapter 7) address European regional approaches to regulating disinformation and misinformation that involve transnational regulatory efforts and mandates to member states to adopt regulations targeting the dissemination of false information. The contributing authors in Part IV all present jurisdiction-specific accounts of how governments are currently attempting to address false information. These chapters include Ciara Torres-Spelliscy’s treatment of the US regulatory approach to false speech by political parties related to the 2020 general election (Chapter 8), John Charney’s account of efforts in Chile to eradicate the dissemination of false information from the 1920s to the present (Chapter 9), Ahran Park’s analysis of contemporary and historical efforts to regulate false information in South Korea (Chapter 10), Gautam Bhatia’s treatment of India’s regulatory efforts to prevent the circulation of socially harmful false information via both new media and traditional media outlets (Chapter 11), Joanna Botha’s account of how South Africa is attempting, with at best mixed results, to address misinformation and disinformation (Chapter 12), and Victoria Miyandazi and Lucianna Thuo’s thoughtful analysis and discussion of ongoing efforts by Kenya’s government to prevent the dissemination of disinformation and misinformation both generally and more specifically in the electoral context (Chapter 13).
Part V’s chapters focus on the potential role of NGOs and civil society organizations in addressing disinformation and misinformation. Vicki Jackson (Chapter 14) considers how ‘knowledge institutions’, such as universities and think tanks, could help reduce the potential social harms of false speech by helping to create better informed, more media literate, and hence more capable citizens. Charlotte Garden (Chapter 15) posits that labor unions can help media organizations better perform their critical Fourth Estate duties, which involve providing the voters with the accurate and truthful information that they need to cast well-informed ballots; Garden also argues that unions, more generally, can and should play an important role in promoting media literacy and voter education.
Finally, in the Afterword (Chapter 16), Vincent Blasi considers the social value of false speech and the legitimacy of government efforts to reduce the social costs of disinformation and misinformation. Blasi also posits that, in thinking about the value of freedom of speech and the legitimacy of government efforts to regulate the marketplace of political ideas, courts and legal academics alike should focus on the purpose of a constitutional free speech guarantee – namely, facilitating the process of democratic self-government.
Elections take place somewhere almost all the time, and the coeditors and contributing authors hope that the ideas set forth in this book might offer useful information about interventions that work well, interventions that do not work at all, and interventions whose outcomes might be unclear. As this book goes to press, the 2024 general election in the USA is shaping up to be a rematch of the 2020 general election and citizens of many of the world’s leading democracies will be going to the polls in the near future. Accordingly, the implications of disinformation and misinformation to the global community could not be greater or more pressing.
Even if no single intervention promises to provide a quick, easy, and simple-to-implement solution to the problems associated with disinformation and misinformation, doing nothing and hoping that information markets will self-correct probably constitutes the worst possible approach. A potential reform must do more good than harm, but one cannot know whether a particular reform could meet this criterion without first asking and answering questions related to administrative feasibility and efficacy. The authors contributing to this book may not be able, individually or collectively, to solve the difficult and growing problems that disinformation and misinformation present to democracies around the world. However, they can help to shed important theoretical and empirical light on how best to begin the necessary public policy and constitutional conversations.
1.6 Conclusion: Disinformation and Misinformation Present Clear and Present Dangers to Democracy and Democratic Self-Government That Must Be Addressed Successfully
The tsunami of disinformation and misinformation is poisoning – and, in the long run, threatens to kill off – ongoing experiments in democratic self-government. One can gladly and with alacrity affirm the global centrality of expressive freedoms to the process of democratic self-government. Even so, however, this concession does not mean, and must not mean, that we continue to inhabit the same First Amendment thought space that has existed since the Warren Court. Simply put, 6 January 2021’s armed insurrection and attack on the Congress, fomented at a rally led by then-President Donald Trump, and fueled by Trump’s Big Lie, should provoke a general rethink of how the First Amendment works – and should work – in the age of the virtual town square. It should also cause thoughtful citizens in other jurisdictions to consider systematically and carefully the potential social costs of disinformation and misinformation – as well as potential means of reducing these social costs.
The popular legitimacy of elections and democratic self-government are both under an existential threat. Indeed, in the USA, the legitimacy of the electoral process is itself already under direct assault. Trump’s Big Lie regarding the outcome of the 2020 presidential election threatens to destroy public confidence in the American electoral process – and disinformation and misinformation rest at the very core of the noxious enterprise. Doing nothing simply will not work because doing nothing means that disinformation and misinformation will continue to degrade the process of democratic deliberation, contribute to the further erosion of public trust and confidence in both the electoral process and democratic governing institutions, and, in a worst-case scenario, empower would-be autocrats and tyrants to subvert self-government in favor of authoritarian and proto-fascist systems of government.
It seems unlikely that the contributing authors, individually or collectively, will be able to identify successfully a ‘magic bullet’ that will easily and quickly solve the problems associated with disinformation and misinformation in the marketplace of political ideas. The problems associated with successfully addressing disinformation and misinformation make a kind of regulatory vaccine a hollow hope. Even so, identifying potentially useful and effective responses would constitute an important contribution to ongoing public policy debates and, concurrently, help to sustain the project of democratic self-government (both in the USA and within the wider world).
Many, indeed probably most, freedom-of-expression scholars believe that constitutional free speech protections exist principally to facilitate democratic self-government. The question, after 6 January 2021, is whether and how that theoretical commitment should empower government to take a more active role in regulating the marketplace of political ideas. Disinformation and misinformation present a palpable threat to democracy, democratic deliberation, and democratic institutions not only in the USA but on a worldwide basis. Placing blind faith in unregulated speech markets will probably not lead to the best outcomes – in the United States or anywhere else.
We need to think carefully, thoughtfully and constructively about how the government, the media, and civil society institutions could work, both individually and collectively, to counter the threat that disinformation and misinformation present to the ongoing process of democratic self-government and, ultimately, to democratic governing institutions. This book represents an effort to make a constructive contribution to developing and deploying effective responses that will safeguard democracy from the potential damage that disinformation and misinformation seek to inflict on both the electoral process and democratic self-government itself. Efforts of this kind constitute first steps – but a long journey cannot be successfully completed without taking the first steps.
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