On the formation of public opinion – Thomas B. Edsall in NYT:
‘“The formation of public opinion is out of control because of the way the internet is forming groups and dispersing information freely,” Robert C. Post, a Yale law professor and former dean, said in an interview.
Before the advent of the internet, Post noted, People were always crazy, but they couldn’t find each other, they couldn’t talk and disperse their craziness. Now we are confronting a new phenomenon and we have to think about how we regulate that in a way which is compatible with people’s freedom to form public opinion.
Trump has brought into sharp relief the vulnerability of democracy in the midst of a communication upheaval more pervasive in its impact, both destructive and beneficial, than the invention of radio and television in the 20th Century.’
‘Toni M. Massaro, a law professor at the University of Arizona, who with Helen L. Norton, a law professor at the University of Colorado, co-authored a December 2020 paper “Free Speech and Democracy: A Primer for 21st Century Reformers,” makes a related point in an email:
Free speech theorists have lots to be anxious about these days as we grapple with abiding faith in the many virtues of free expression while coping with the undeniable reality that it can — irony runs deep — undermine free expression itself.
Massaro added: Those who believe in democracy’s virtues, as I do, need to engage the arguments about its threats. And those who believe in the virtues of free speech, as I also do, need to be cleareyed about the information distortions and gross inequalities and other harms to democratic and other public goods it produces. So our generation absolutely is up at bat here. We all need to engage the Wu question ‘is free speech obsolete?’ lest it become so through inattention to the gravity of the threats it faces and poses.
Helen Norton, in a separate email, expanded on the different vantage points in the legal community. On one side are those “who privilege democratic self-governance” and who are more likely to be concerned “about whether and when speech threatens free speech and democracy.” On the other side are the many, past and present, who privilege individual autonomy and are more comfortable with the premise that more speech is always better. I’d describe it as a difference in one’s preferred theory of and perspective on the First Amendment.
Other legal scholars emphasize the inherent difficulties in resolving speech-related issues: Rebecca Tushnet, a law professor at Harvard, wrote by email: Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.’
‘In certain respects, the divide in the American legal community reflects some of the differences that characterize American and European approaches to issues of speech, including falsehoods and hate speech. Noah Feldman, a law professor at Harvard, described this intercontinental split in a March 2017 column for Bloomberg,
U.S. constitutional tradition treats hate speech as the advocacy of racist or sexist ideas. They may be repellent, but because they count as ideas, they get full First Amendment protection. Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. This permissive U.S. attitude is highly unusual. Europeans don’t consider hate speech to be valuable public discourse and reserve the right to ban it. They consider hate speech to degrade from equal citizenship and participation. Racism isn’t an idea; it’s a form of discrimination.
The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal. Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.’
‘Miguel Schor, a professor at Drake University Law School, elaborated Wu’s arguments in a December 2020 paper, “Trumpism and the Continuing Challenges to Three Political-Constitutionalist Orthodoxies.”
New information technologies, Schor writes,
are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.
Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.” To support his case that traditional court interpretation of the First Amendment no longer serves to protect citizens from the flood tide of purposely false information, Schor cited the 2012 Supreme Court case United States v. Alvarez which, Schor wrote, “concluded that false statements of fact enjoyed the same protection as core political speech for fear that the government would otherwise be empowered to create an Orwellian ministry of truth.” In the Alvarez case, Justice Anthony Kennedy wrote that the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.’
‘Along parallel lines, Sanford Levinson, a law professor at the University of Texas, argued in an email that “today, things are remarkably different” from the environment in the 20th century when much of the body of free speech law was codified: “Speech can be distributed immediately to vast audiences. The ‘market of ideas’ may be increasingly siloed,” Levinson wrote, as “faith in the invisible hand is simply gone. The evidence seems overwhelming that falsehood is just as likely to prevail.”’
‘Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.”
Kennedy described one specific reform he had in mind:
A key distinction in the law now has to do with the state action doctrine. The First Amendment is triggered only when state action censors. The First Amendment protects you from censorship by the state or the United States government. The First Amendment, however, does not similarly protect you from censorship by Facebook or The New York Times. To the contrary, under current law Facebook and The New York Times can assert a First Amendment right to exclude anyone whose opinions they abhor. But just suppose the audience you seek to reach is only reachable via Facebook or The New York Times?
The application of First Amendment protection from censorship by large media companies could be achieved by following the precedent of the court’s abolition of whites-only primaries in the Deep South, Kennedy argued:
Not so long ago, political parties were viewed as “private” and thus outside the reach if the federal constitution. Thus, up until the late 1940s the Democratic Party in certain Deep South states excluded any participation by Blacks in party primaries. The white primary was ended when the courts held that political parties played a governmental function and thus had to conduct themselves according to certain minimal constitutional standards — i.e., allow Blacks to participate.
Wu, Schor and others are not without prominent critics whose various assertions include the idea that attempts to constrain lying through radical change in the interpretation of the First Amendment risk significant damage to a pillar of democracy; that the concerns of Wu and others can be remedied through legislation and don’t require constitutional change; that polarization, not an outdated application of the First Amendment, is the dominant force inflicting damage on the political system.
In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.
The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding that occasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.
In this light, Tribe argued that the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.
Tribe concluded his email citing his speech at the First Annual Conference of the Electronic Freedom Foundation on Computers, Freedom and Privacy in San Francisco in March 1991, “The Constitution in Cyberspace”: If we should ever abandon the Constitution’s protections for the distinctively and universally human, it won’t be because robotics or genetic engineering or computer science have led us to deeper truths but, rather, because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is “right” or what is “wrong.” The fact that those notions are elusive and subject to endless debate need not make them totally contingent upon contemporary technology.’
‘Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote:
I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.
Having said that, Stone continued, I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse.
The challenge, Stone continued, is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.’
‘And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics: Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.’
Read the article here.
So, the question is what is worse, governments that regulate free speech and for that reason might come close to an Orwellian Ministry of Truth or the transformation of freedom of opinion into a farce.
The freedom of opinion will always be partly a farce, people are people, and although I sympathize with the idea that ‘the remedy for speech that is false is speech that is true,’ past and present show us that this remedy is often futile. And yes, there might the tyranny begin or the totalitarian state, remember that Arendt distinguishes between tyranny and the totalitarian state.
Perhaps the ‘militant democracy’ of post-war Germany is the future, but this militant democracy came into existence after the horrors of WW II and there was a for a while, and maybe still is, a reluctant acceptance in post-war Germany to accept the guilt.
I’m not sure how you can combine the American constitution with the militant democracy that post-war Germany supposedly is.
When the government itself, when the president becomes the spreader and supporter of the conspiracy theory, we should not be surprised that the free market of ideas isn’t working well.
But as often, quite a few of the remedies appear to be as dangerous as the inflammation they are trying to heal.