Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977.1 Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The twenty-four-hour news cycle was not yet a thing, and most Americans still trusted the press.2

The term “content moderation,” a holdover from the days of small bulletin-board discussion groups, is quite a bland way to describe an immensely powerful and consequential aspect of social governance. Today’s largest platforms make judgments on millions of pieces of content a day, with world-shaping consequences. And in the United States, they do so mostly unconstrained by legal requirements. One senses that “content moderation” – the preferred term in industry and in the policy community – is something of a euphemism for content regulation, a way to cope with the unease that attends the knowledge (1) that so much unchecked power has been vested in so few hands and (2) that the alternatives to this arrangement are so hard to glimpse.

This chapter addresses an underappreciated source of epistemic dysfunction in today’s media environment: true-but-unrepresentative information. Because media organizations are under tremendous competitive pressure to craft news that is in harmony with their audience’s preexisting beliefs, they have an incentive to accurately report on events and incidents that are selected, consciously or not, to support an impression that is exaggerated or ideologically convenient. Moreover, these organizations have to engage in this practice in order to survive in a hypercompetitive news environment.1

What is the role of “trusted communicators” in disseminating knowledge to the public? The trigger for this question, which is the topic of this set of chapters, is the widely shared belief that one of the most notable, and noted, consequences of the spread of the internet and social media is the collapse of sources of information that are broadly trusted across society, because the internet has eliminated the power of the traditional gatekeepers1 who identified and created trusted communicators for the public. Many commentators argue this is a troubling development because trusted communicators are needed for our society to create and maintain a common base of facts, accepted by the broader public, that is essential to a system of democratic self-governance. Absent such a common base or factual consensus, democratic politics will tend to collapse into polarized camps that cannot accept the possibility of electoral defeat (as they arguably have in recent years in the United States). I aim here to examine recent proposals to resurrect a set of trusted communicators and the gatekeeper function, and to critique them from both practical and theoretical perspectives. But before we can discuss possible “solutions” to the lack of gatekeepers and trusted communicators in the modern era, it is important to understand how those functions arose in the pre-internet era.

The laws of defamation and privacy are at once similar and dissimilar. Falsity is the hallmark of defamation – the sharing of untrue information that tends to harm the subject’s standing in their community. Truth is the hallmark of privacy – the disclosure of facts about an individual who would prefer those facts to be private. Publication of true information cannot be defamatory; spreading of false information cannot violate an individual’s privacy. Scholars of either field could surely add epicycles to that characterization – but it does useful work as a starting point of comparison.

The commercial market for local news in the United States has collapsed. Many communities lack a local paper. These “news deserts,” comprising about two-thirds of the country, have lost a range of benefits that local newspapers once provided. Foremost among these benefits was investigative reporting – local newspapers at one time played a primary role in investigating local government and commerce and then reporting the facts to the public. It is rare for someone else to pick up the slack when the newspaper disappears.

In the spring of 2022, visitors to the Smoking Gun website would find a challenging “game, where [one’s] wasted time [was] well spent.”1

An entity – a landlord, a manufacturer, a phone company, a credit card company, an internet platform, a self-driving-car manufacturer – is making money off its customers’ activities. Some of those customers are using the entity’s services in ways that are criminal, tortious, or otherwise reprehensible. Should the entity be held responsible, legally or morally, for its role (however unintentional) in facilitating its customers’ activities? This question has famously been at the center of the debates about platform content moderation,1 but it can come up in other contexts as well.2

Coordinated campaigns of falsehoods are poisoning public discourse.1 Amidst a torrent of social-media conspiracy theories and lies – on topics as central to the nation’s wellbeing as elections and public health – scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.

Current approaches to content moderation generally assume the continued dominance of “walled gardens”: social-media platforms that control who can use their services and how. Whether the discussion is about self-regulation, quasi-public regulation (e.g., Facebook’s Oversight Board), government regulation, tort law (including changes to Section 230), or antitrust enforcement, the assumption is that the future of social media will remain a matter of incrementally reforming a small group of giant, closed platforms. But, viewed from the perspective of the broader history of the internet, the dominance of closed platforms is an aberration. The internet initially grew around a set of open, decentralized applications, many of which remain central to its functioning today.

Political scientist and ethicist Russell Hardin observed that “trust depends on two quite different dimensions: the motivation of the potentially trusted person to attend to the truster’s interests and his or her competence to do so.”1 Our willingness to trust an actor thus generally turns on inductive reasoning: our perceptions of that actor’s motives and competence, based on our own experiences with that actor.2 Trust and distrust are also both episodic and comparative concepts, as whether we trust a particular actor depends in part on when we are asked – and to whom we are comparing them.3 And depending on our experience, distrust is sometimes wise: “[D]istrust is sometimes the only credible implication of the evidence. Indeed, distrust is sometimes not merely a rational assessment but it is also benign, in that it protects against harms rather than causing them.”4

Almost all platforms for user-generated content have written policies around what content they are and are not willing to host, even if these policies are not always public. Even platforms explicitly designed to host adult content, such as OnlyFans,1 have community guidelines. Of course, different platforms’ content policies can differ widely in multiple regards. Platforms differ on everything from what content they do and do not allow, to how vigorously they enforce their rules, to the mechanisms for enforcement itself. Nevertheless, nearly all platforms have two sets of content criteria: one set of rules setting a minimum floor for what content the platform is willing to host at all, and a more rigorous set of rules defining standards for advertising content. Many social-media platforms also have additional criteria for what content they will actively recommend to users that differ from their more general standards of what content they are willing to host at all.

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas – that the solution to bad speech is more, better, speech.1 This basic idea is well established in both judicial and scholarly writing – but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech – indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.”

It was 1971 and Los Angeles Times editor Nick Williams had what he called a “terribly uneasy feeling.” In a letter to one of the paper’s Washington correspondents, he wrote of his suspicion that journalism had “lost credibility … with an alarming percentage of the people.” If the plummet continued, Williams fretted, journalists will have “destroyed or weakened a keystone of our Constitution.”1

The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses – all kinds of things that cost much more than a Facebook page – if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became “gatekeepers” with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.

It is usually a mistake to suppose that a company is the best judge of how its business works.1 Or that an industry is the best judge of how the industry works. AT&T is a good example. When the Justice Department sat down with management in 1981 to negotiate a breakup of what was then a monopoly provider of telephone service, government lawyers asked which part of the company management wanted to keep after the breakup – the long-distance operations or the regional networks.2 The long-distance operations had long been the company’s most profitable, so management asked for those.3

Trust in media institutions has declined more or less apace with trust in every other kind of major institution in public life. Or perhaps it is more correct, as Ashutosh Bhagwat observes in his contribution to this project, to say that trust has declined in the types of media institutions, the proverbial Walter Cronkites, that dominated “the media” during the twentieth-century period when modern American ideals around free speech and journalistic value were still taking form.

This chapter discusses how governments and supernational institutions have tried to tackle misinformation through laws and regulations. Some countries have adopted new legislation making the spread or creation of misinformation illegal; this has often been met with criticism by human rights organizations, for instance, because governments cannot act as neutral arbiters of truth. The UK and EU have adopted expansive regulatory frameworks that regulate not only misinformation but rather the online information space in its entirety. The United States is generally wary of any new legislation that imposes limits on speech, and doesn’t currently have legislative initiatives that are as broad in scope as those in the UK and EU. Instead, some entities in the US have tried out investing in communications campaigns about mis- and disinformation; these are aimed at individuals (and not companies or misinformation producers), and their effectiveness is evaluated in a very different way.