How to Frame the Discussion About Disinformation

Addressing disinformation requires understanding the intersection of media, free speech, and malicious politics

Dan Heller
Politically Speaking

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After the January 6 insurrection, where pro-Trump rioters violently stormed the U.S. Capitol under the Big Lie that massive election fraud robbed Trump of re-election, Americans found themselves pondering once again a decades-long quandary: Why can’t we stop disinformation?

The primary reason is that no one has truly framed the problem properly. More precisely, everyone oversimplifies the “free speech” argument, attempting to capture more than just “disinformation,” but all kinds of distasteful speech that is otherwise protected by the First Amendment. Besides, even if it were possible, you’d have to overcome the practical matter of drafting and passing viable legislation through Congress. Both of these seem insurmountable, causing most to throw up their hands and say nothing can be done.

But, as this article illustrates, these arguments can be addressed if we approach the problem more surgically.

We begin by broaching what’s on everyone’s mind: Should we be messing with “free speech?”

Part 1: Free Speech and Disinformation: A False Equivalency

So proud are Americans of the First Amendment’s protection of free speech, that nearly everyone can cite the quip attributed to Voltaire (but written by his biographer): “I disapprove of what you say, but I will defend to the death your right to say it.

Not only is this a well-accepted axiom in America, it’s the primary thesis of Sean Illing and Zac Gershberg’s book, “Paradox of Democracy.” In their op-ed in the NY Times titled, “The Greatest Threat to Democracy Is a Feature of Democracy,” the authors argue that:

“Democracy is an open culture of communication that affords people the right to think, speak and act and allows every possible means of persuasion. That makes every democratic society uniquely vulnerable to the consequences of communication. We may not like it, but something like Jan. 6 is always potentially in the offing. We ought to avoid the naïveté of liberal fantasy, which imagines we can impose reliable guardrails against dangerous or deceptive speech.”

All true. But this illustrates how the problem is framed too broadly. The threat is not “dangerous or deceptive speech,” per se. In fact, we’re not even really concerned with individuals’ speech at all. We’re interested only in a very narrow segment of disinformation, which is more about distribution. Here, we are only interested in this very narrow test:

  1. If the falsehood is known in advance to be untrue.
  2. If the known falsehood were to be widely believed, it would create a risk to public health or safety, or the functioning of the government.
  3. If the known falsehood is intentionally supported, amplified, or promoted by mass media companies, whether by direct action, or intentional inaction of those companies, resulting in a sufficiently large segment of the population believing it.

Let’s consider Trump’s Big Lie.

Even though it was within Trump’s First Amendment rights to make the claim that massive election fraud robbed him of the 2020 election, many traditional television networks and news sources refuted his assertions by citing scores of failed legal challenges that there was no election fraud, by reporting and validating ballot recounts that showed that no fraud took place, and later, by reporting and contextualizing the J6 congressional hearings, which featured pro-Trump insiders who stated for the record that Trump’s claims of election fraud were not true.

However, not all media outlets did this. Fox News, along with conservative talk radio and commentators spanning social media networks, not only knowingly allowed the Big Lie to be broadcast as though it were true, many supported it on the air, even as they themselves knew it was a lie. According to a legal filing made public as part of Dominion Voting Systems’ $1.6 billion lawsuit against Fox News, Fox network’s executives and talk show hosts privately trashed lies pushed by former President Donald Trump’s camp and his supporters who asserted the 2020 election was rigged.

The result was that a significant proportion of the population believed the Big Lie. Pew Research found that, of the 74 million people who voted for Trump in 2020, only 7% conceded that Biden definitely won the 2020 election without a doubt. That’s 68 million people who believe in some aspects of the Big Lie about election fraud, which led to the J6 insurrection and the diminishment of confidence in voting systems, not to mention a great deal of political violence (both real and threatened).

In a lengthy report by Pew Research, Republicans primarily get their news through conservative media, which satisfies all three criteria for harmful disinformation that could have been stopped.

Satisfying all three of these criteria is not easy by design. The goal isn’t to reign in all forms of misinformation found online, or to reign in hyperpartisanship, or curtail cultural and political divisions. That would be nearly impossible, and force all media companies to rarely report any news or opinions, lest they’d be sued by anyone.

The goal is only to protect democracy, and to create a very high bar for enforcement. And there’s precedent for this sort of limitation on speech in other laws.

One example is political campaign advertising, such as California Elections Code section 18007, whose language is similar to that of other states. It states that “No person shall knowingly or willfully make or publish any false statement designed to affect the vote on any issue submitted to the voters, or concerning any candidate for public office.” For this case, the Justice Department has been investigating Trump and his Save America PAC, each of whom were “soliciting millions of dollars by baselessly asserting that the results had been marred by widespread voting fraud.”

In this case, the government found it necessary to impose a limitation on individuals’ rights of speech because the offending statements exceed a high threshold of preserving the public interest. So, such limits do exist.

The question then becomes whether we can impose similar restrictions on media companies from promoting and supporting known falsehoods that cause harm. Again, there’s precedent for this — consider laws that govern libel and slander.

Once again, the case against Fox News by Dominion Voting Systems is based on laws that prevent people from using known falsehoods to harm a person or a company. And yet, there are no laws that prevent those same false statements if they harm the public interest, such as overturning a free and fair election. If “free speech” can be curtailed to protect a company’s financial interests, surely there can be similarly high burdens of proof — and concordant remedies — to protect democracy.

Part 2: Constructing a Legislative Framework

Many readers may be familiar with The Fairness Doctrine of the Telecommunications Act of 1941 to act as a bulwark against disinformation during much of the 20th century. Faced with exactly the same concerns we have today about balancing the rights of free expression with that of the public interest, the Doctrine didn’t prohibit individuals’ right to free speech, but instead imposed requirements on broadcasters to ensure that issues were fairly represented by opposing views.

While an imperfect law, it stood up to numerous First Amendment claims by elements on both ends of the political spectrum, who also leveraged it for their own interests. Indeed, many extremist views had made their voices heard throughout the country during the Doctrine’s tenure: The McCarthy era, the Civil Rights era, various wars, and even Nixon. But the Doctrine proved effective at requiring broadcasters to characterize such views in a more balanced manner, and to put them into context, requiring advocates on all sides of critical issues to be given airtime.

While the Fairness Doctrine did a good job for its time, it’s a bit outdated for today’s needs, where the primary problem isn’t giving equal time to those with different views, or even to issues — it’s reality itself. Arguing with someone on television about something that is factually untrue may boost audience ratings, but it doesn’t help democracy.

To reign in disinformation in today’s media market, we need to focus on stemming the distribution of demonstrably false statements that rise to the level of harming public health and safety. Legislation to this effect can begin by tapping into the language of other laws, such as the campaign finance laws cited earlier, or other countries’ media laws, such as Japan’s National Broadcast Law, which states that “programming must avoid distorting facts, stay politically fair and not harm public safety.”

There are also our own libel and defamation laws, where the case of Fox News vs. Dominion Voting Systems is a real-world example where litigants on both sides of a dispute have a high bar of showing intent and demonstrating harm.

One concern that will naturally arise is who gets to declare whether particular information is false, and whether the level of ‘harm’ meets the threshold by which media companies would have to take corrective action. How do we be sure the government doesn’t overstep and restrict free speech?

Here, engaging in multiple agencies serves this purpose. Health matters can be assessed by the FDA and CDC. Election integrity can be ascertained by the FEC (Federal Elections Commission). Financial matters can be the SEC (securities and exchange commission), and so on. Using both federal and independent institutions with appropriate checks and balances assure both accuracy and perceived legitimacy. Joint declarations can be made by the FCC and associated agencies, with input from other independent institutions as well. These may seem like slow processes, as well they should be. It takes time to know if a particular falsehood is, in fact, harmful (measurably so). Attempting to preempt disinformation would be dangerous.

Once something is deemed to be classified as disinformation, the FCC could require media outlets to correct certain statements, whether made by their own broadcasters, or through their media infrastructure. Penalties would have to be sufficiently harsh, or the laws would be toothless. (The Fairness Doctrine had the ability to revoke broadcast licenses in extreme cases.)

As for social networks, we’ve already seen that Facebook, Twitter, and other social media platforms successfully restrict falsehoods when they want to. Reuters reported in 2018 that Facebook successfully banned false information about voting and other election-related claims weeks before the 2018 midterms, and did so again in 2020, including not accepting any kind of political advertising. Therefore, if a requirement were to be imposed in this narrow area of speech, we know they could comply.

This should not be confused with Section 230 of the Communications Decency Act, the statute that currently gives immunity to online social networks for content that end-users post. The uproar is more about different kinds of content than our narrow focus here. Dealing with ugly, distasteful content on social media is worthy of discussion, but it’s a separate matter from the narrow kind of disinformation that undermines democracy and public safety. These two realms can and should be addressed separately.

The next important question to ask is whether barring disinformation would bring people back to reality.

A fairly well-publicized study in 2020 found that Fox viewers were transformed after watching CNN for 30 days. The study authors wrote, “We found large effects of watching CNN instead of Fox News on participants’ factual perceptions of current events (i.e., beliefs) and knowledge about the 2020 presidential candidates’ positions. They discovered changes in attitudes about Donald Trump and Republicans as well as a large effect on their opinions about Covid.”

So, legislation is possible, media companies can comply, and the effects can be felt quickly. Now comes the hardest challenge: passing such legislation through both the House and Senate. That would certainly not be possible in today’s climate because it would remove the very lifeline that Republicans rely on as a party. In 2011, Jim Clyburn tried to resurrect the Fairness Doctrine (when Fox News created the Tea Party through disinformation), but the moment it came up, conservative media’s outrage machine went into full throttle and lasted for months. As reported by Politico, “Conservatives rallied their listeners with a very old — and very successful — battle cry, accusing the left of trying to curb their free speech.”

Today, it’s worse. In April of 2022, Nina Jankowicz was appointed to oversee a new disinformation board at the Department of Homeland Security to ensure that DHS followed best practices in combating disinformation while protecting Americans’ freedom of speech, privacy and civil liberties. However, she had to resign almost immediately due to threats to her and her family, plus vigorous opposition by Republicans. “It’s kind of ironic that the board itself was taken over by disinformation when it was meant to fight it,” Jankowicz said.

In fact, the political climate today is so bad, attempting to correct any problems with the political system are dead on arrival, whether it’s voting rights or election laws or anything else that might disadvantage Republicans, and their dependency on disinformation is essential. They are not going to permit anything that reduces their hold on power.

Nevertheless, there may be a path forward, albeit a very dark and disturbing one. The increasing autocratic tendencies of the Republican Party is increasing the level of political tensions to the point where many have been talking about a new “civil war.” Even if that doesn’t come to pass, the country could still face a crisis so bad that it makes the J6 insurrection look like a “bunch of tourists” who “love this country, and truly respect law enforcement,” and were only “expressing legitimate political discourse.” If conditions get that bad again — or worse — it may prompt a very small, but essential number of GOP lawmakers to break with their party while they’re still in office to pass legislation that plugs this gaping hole in media law to curtail disinformation. (While they’re at it, they could also make other systemic changes, such as voting rights, gerrymandering, election laws, etc.)

These maverick lawmakers would be excommunicated from the GOP, just as Liz Cheney and Adam Kinzinger were when they joined the J6 investigation, but such actions would have an immediate and material outcome on the following election. By then, the candidates that try to get voter support would be less able to use lies and conspiracy theories, because the media would be obligated to correct them. They would also be running in districts that weren’t so overtly gerrymandered. This may change the very character of the candidates that run, if not the Republican Party itself, not only saving democracy, but possibly moderating the rhetoric found in the media.

It’s kind of ironic that it would take a few Republicans to save democracy, but you know the old saying (often misattributed to Winston Churchill), “Americans will always do the right thing — after exhausting all the alternatives.”

Hopefully, we can see that happen before the next civil war.

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