Facing the Elephant in the Room

If nothing else, the chaos in the US Capitol on Jan. 6 taught us that there really is no limit to the nonsense that people can be led to believe. Four years of mainlining bad information and riding high on outrage, gushing to a climax at the Capitol. But now the party is over: the place is a wreck, the fireworks have destroyed the fireplace, the virgin is de-flowered, and the Frat King has slunk away, leaving us to deal with the aftermath. The grownups are back, but the question lingers: did we learn anything?

Seriously, let’s be clear about what just happened:

People by the millions went off the deep end, and simple, obvious reality offered no resistance at all.

We’re talking about a metastasizing cancer of misinformation and disinformation. And we have a very good word for pernicious lies deliberately spread to masses of people for political purposes. We call it propaganda.

Contemporary propaganda has any number of agents, including right-wing talk radio, Fox News and its fellow travelers, the attention economy of the Internet in general, and the outrage machine of social media in particular. (I’ve written about this before in One Crisis to Rule Them All.) When “newspeople” with millions of viewers can get away with pushing the idea that “some people” think Antifa was involved in the Capitol riots; or the vast majority of Republicans become permanently convinced that the 2020 election was stolen, whatever sense of decency or shame that used to hold such forces in check is gone, baby gone.

The fact that it’s gotten this far is our red, flashing, wailing emergency signal that it’s time to, in the immortal words of W.C. Fields, take the bull by the tail and face the situation. If this kind of propaganda —propaganda that can turn a malignant narcissist into a messiah figure and sell a stressed but conspicuously sound election as a vast fraud — can have these kinds of consequences — civil unrest and violence at a national level — then if we don’t find a way to fix it, America is on the fast track to oblivion. If you think this crazy wave has reached some kind of crazy peak and will shortly subside with the departure of Donald Trump, I have two words for you: Think Again.

Propaganda vs. The First Amendment

Just as we resist the term “propaganda,” Americans panic at the very idea of managing information in any way: what about the First Amendment?!? We have grown comfortable with the idea that any restriction on speech is un-American. So we need to recall that “freedom of speech”, even enshrined in the Constitution, has never been absolute. Exceptions and limitations abound, so ingrained that we forget they even exist. As the relevant Wikipedia page puts it,

[C]ommon limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury.

You can’t cry “fire” in a crowded theater. You can’t threaten the President. You can’t attack a person’s reputation with lies. You can’t incite violence against the government. And on and on. Clamping down on expression — especially political expression — is still somewhere between a third rail and a minefield. But it’s not unprecedented.

There is even a legal precedent, at least in the United States, for enforcing some fealty to the truth. The FCC’s Fairness Doctrine dictated that broadcast networks, by dint of licensing the public airwaves, had an obligation to present alternative viewpoints when discussing matters of opinion. The Fairness Doctrine had weaknesses aplenty, and in the new worlds of cable distribution and streaming media it has fallen by the wayside, but it is a real precedent for thinking of information integrity as a public good, and maybe a source of lessons learned?

A Re-framing: De-platforming vs. Censorship

Absolutism about the First Amendment isn’t the only misconception on the docket. There’s a widespread impulse to accuse commercial entities like news networks and social media platforms of attacking freedom of speech, of censorship. This idea may be sticky in the popular mind, but it has no legal standing at all. The First Amendment begins “Congress shall make no law…abridging the freedom of speech, or of the press…” In other words, only the government is constrained from constraining speech.

Practically speaking, freedom of the press has never applied to anyone without access to a printing press. Freedom of speech only means that the government can’t arrest you for standing on a soap-box and voicing your opinions in the park (and even then, only if you don’t violate the above-mentioned restrictions). No entity, public or private, is obligated to amplify your voice and broadcast it further than your voice (or pen) will reach. Social media companies have built engines of staggering power to spread all sorts of memes, including propaganda. Even the worst actors have come to assume that they are entitled to a free ride on these rocket ships of dissemination, with no cost or consequence whatsoever. How does that make sense?

Say it loud, say it again and again: The First Amendment isn’t even a speed bump in the way, should the social media giants come to grow a sense of ethics and responsibility for the uses to which their platforms are put and the epistemic devastation that follows.

A Modest Proposal

This essay started life as nothing more than a problem statement highlighting a Hard Problem of our day. But as it turns out, I do have a suggestion about a way we might tackle the problem of private propaganda. It’s based on the idea that speech has tangible consequences, with the speaker responsible, at least in part, for those consequences.

The doctrine of libel says that we can’t use false speech as a weapon against an individual. The doctrine of sedition says that we can’t use speech as a weapon against the State. Laws against perjury tell us that we can’t proffer untruths in a legal proceeding. We can’t even lie to an FBI investigation. The idea that speech — especially lies — can do real harm in the world is firmly established in law and precedent.

But propaganda lacks one thing that these cases have: an obvious, material victim, i.e., people or entities that are being harmed or materially threatened by the speech in question.

My suggestion: We need to develop the idea that truth itself can be a victim.

The truth is not a person or other entity in the material world, but it is a public good. It is the very lifeblood of a democratic society, and it has exploded in importance with the Information Age. It is the stuff of life on the Internet; the social media companies are all about building machines/networks of Biblical power for turning information toward good or evil ends. Not coincidentally, lies, misinformation and disinformation have acquired weapons-grade power. If the modern era has to get its shit together about one thing, it’s how it manages and respects quality of information.

(Full disclosure: I’m not a lawyer; I don’t even play one on TV. I only hope that actual legal minds will find a thread here that’s worth picking up.)

From my perspective as a civilian, libel law seems like a pretty good model to start with, in several respects:

First, libel law makes a clear distinction between fact and opinion. I am free to denounce anyone in the strongest terms, so long as that denunciation is based on my judgement and makes no false claims of fact.

A second important feature is that a libel proceeding does not try to make fine distinctions between truth and falsehood. The standard is not whether any given claim is true or false. The standard is whether it is an egregious, flagrant falsehood. Very different business. I think it’s incredibly important to stay well clear of any world in which some authority figure gets to rule on whether any random proposition is true or false. Instead, like libel, we want to confine attention to the extremes, filtering for the most egregious bullshit, in much the same way that criminal proceedings don’t hinge on whether a person is mostly innocent or guilty; the issue is whether they are clearly guilty. It’s the difference between a war on disinformation and a war on dissent.

Finally, libel law concerns itself mainly with another extreme: damage done. Nobody gets sued for libel for gossip, and, as far as I know, never without the involvement/amplification of mass media. Even in the media, even in the UK (where grounds for libel are much broader), proceedings are rare, and confined to the most damaging abuse. Initiating proceedings is just not worth it otherwise.

So, in as much detail as a non-lawyer can muster, the idea goes like this:

• Recognize the truth as a public good that can be harmed.
• Build a framework for civil proceedings to recover damages for willful, knowing harm to public information.
• Set standards similar to libel law for identifying “willful disregard for the truth”, including not just malice but manipulative intent.
• Provide for explicit exception where opinion is clearly separated from fact.

The biggest problem here is how to assess damages for redress. Individuals suing for libel can typically point to actual harms: to their business, to their social life, even to something as diffuse as their reputation. But there is such a thing as punitive damages, whose purpose is not to compensate the victim but to discourage the perpetrator from perpetrating further by making it unprofitable. That might be a good place to start.

A second problem is one of standing: who gets to sue? The damage of polluting the public information stream is distributed far and wide, in that it basically harms everybody in the society.

Now, before my “modest proposal” can find its way into reality, there are issues to overcome. First and foremost is the Don’t Tread On Me panic that surges in everyone’s gut at the idea of censorship. We may accept that some ideas may need management but our ideas are sacrosanct, and God forbid some bureaucrat should have veto power over our expressing them. There’s a basic issue of trust, and trust is, to put it mildly, in short supply nowadays.

This prospect makes a compelling boogeyman, but it doesn’t have to be a problem in practice. Libel law is not about monitoring the minutia of everyday discourse. Suits for libel only concern violations at scale: people get sued for libel only when lies are so egregious and widespread that they cause outstanding harm.

The second thing to avoid is a “watchdog effect” that comes if you make anyone responsible for issuing approvals. But I’m not talking about watchdogs, or censors; I’m talking about a Whack-a-Mole policy that responds only as matters break the bounds of decency. Again, my proposal isn’t about rendering a thumb-up or thumb-down on any given claim; it’s about looking for a consistent pattern of claims that are demonstrably out of bounds.

Finally, it might be objected that likening bullshit to libel, and thus focusing on only the most egregious abuse, sets the bar too high, and much abuse will go uncorrected. That is unquestionably the case, and I think it should be the case. Why? Because when someone is prosecuted for propagating private propaganda, it should mean something. The reaction of all parties to a successful prosecution shouldn’t be “Wow, sucks for them,” but rather “Man, I guess they really did go off the reservation.”

The idea is not to develop a predictable penalty for abusing truth. It’s to develop a possible penalty, one that comes to bear in the worst cases; to put a niggling thought in the back of the mind of the professional propagandist that they could be called to account for abusing their position. Yes, I want to have a chilling effect on the worst discourse society has to offer. It may not sound like much, but it’s better than nothing.

I vividly remember the joyful righteousness I felt on reading that Dominion Voting Machines was suing Sydney “Unleash the Kraken” Powell (and now Rudy Giuliani) for slander in the 2020 election misinformation campaign, and I rejoiced to see the dismal failure of Trump and his fellow travelers in a venue where reality actually mattered: the courts. Should we really have to wait until a corporate entity or individual suffers egregious, libelous harm before calling a halt? Should we really let a man with the power of the presidency use social media to wage war on reality without any option for pushback short of impeachment?

My message here is not that complicated: technology provides people awesome power in disseminating their ideas, and they need to be reminded of the Uncle Ben rule: “With great power comes great responsibility.” As it stands, they wield their power without the slightest responsibility, and if that doesn’t change, the modern world will literally drive itself insane.

The good news is that an artfully designed heuristic may be enough to put up guard rails without destroying freedom of speech. It might leave too much rabble-rousing on the table, but it would be a great improvement if we could just get back from Nutzville.