Ten years out, it’s hard to know whether to laugh or cry at Justice Anthony Kennedy’s pronouncement in United States v. Alvarez that “[t]he remedy for speech that is false is speech that is true.”
There has never been solid evidence for the proposition that a larger volume of speech, or a more open marketplace of ideas, tends to lead people away from falsity and toward truth. Decades of research in social psychology, behavioral economics, and communications suggests instead that any such causal relationship is highly contingent—and in many situations negative. Technological and economic changes in the U.S. media landscape that were already underway when Alvarez was decided in 2012, and that have accelerated in the decade since, have further undermined the purifying properties of counterspeech. As Frederick Schauer has observed, “the persistence of the belief that a good remedy for false speech is more speech … may itself be an example of the resistance of false factual propositions to argument and counterexample.”
Justice Kennedy, accordingly, was participating in the very problem he was purporting to solve. Insofar as he was making an empirical claim about the likelihood of truth prevailing in the absence of regulation, we might say that Kennedy was not only being naive about the power of human rationality but also actively spreading misinformation.
Adjacent to the field of First Amendment law, evidence on the effects of mandated disclosure provides additional grounds to doubt the curative capacity of truthful speech. Targeted transparency policies, which aim to educate citizens and consumers while otherwise minimizing government interference with the market, have proliferated since the 1970s. Yet a large body of literature demonstrates that such disclosure “chronically fails to accomplish its purpose.” “In area after area,” as I’ve explained elsewhere, “transparency has proven inadequate by itself to achieve public objectives or protect vulnerable parties.” Only when combined with broader substantive reforms do information-forcing rules seem to produce meaningful social benefit.
What does all of this research imply for the debate over how to respond to the flood of disinformation and misinformation online? Most fundamentally, I believe it puts the burden on those who would rely to any significant degree on strategies of mandated discourse or disclosure—warning labels, fact checks, corrections, criticisms, and the like—to show that they actually work. These strategies have disappointed in countless discrete domains. We shouldn’t expect them to solve a world-historical epistemic crisis in political communication.
This is not to deny the potential utility of “speech that is true” for combatting certain forms of falsity, nor its potential to serve other democratic values, nor the difficulty of ascertaining the truth on contested issues. Because the practical impact of counterspeech is so context-sensitive, much depends on the details. And of course, alternative approaches to combatting falsity will come with their own costs and limitations. But the sobering point remains: We have no basis in evidence or experience to predict that increasing the quality or quantity of true speech on the internet will reliably neutralize false speech or inculcate true beliefs in society. For those ends, measures that seek to limit the salience and spread of false speech—whether by prioritizing authoritative news sources, downranking or removing deceptive content, or imposing penalties on serial purveyors of harmful lies—may well be more effective.
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Consider the case of the Fairness Doctrine. Before it was repealed in 1987, the Fairness Doctrine required broadcasters to cover controversial issues of public importance in a manner that accurately reflected opposing views. Many progressive commentators, alarmed by the rise of fake news and filter bubbles, have seen in this policy a possible antidote. Brian Leiter, for example, argues in a recent essay that the demise of the Fairness Doctrine contributed to a “collapse of epistemic authority” and that its reinstatement is a necessary if insufficient response. Let’s stipulate that Leiter is right on both counts. Why, exactly, would a policy like the Fairness Doctrine be such a powerful tool against misinformation?
One possibility is through the counterspeech it ensures. In Leiter’s words:
[I]t is easy to see why it would be much harder to mislead people if television and radio programs would be required to air at the same time those with an opposing view. The Fairness Doctrine does not stop falsehood or epistemic debunking from enjoying media time, but it does prevent it from being aired unchallenged.
This passage exhibits some of Justice Kennedy’s optimism. Speakers will occasionally make misleading or erroneous statements, but when they do, their opponents will be motivated to call them out. True speech will be enlisted to expose, and defeat, false speech. Although the laissez-faire “let everyone speak” model and the state-supervised “debating club” model might seem like polar opposites from the standpoint of political theory, they share a set of social-psychological assumptions about the efficacy of counterspeech in the face of falsity.
Leiter’s historical narrative also suggests, however, a quite different mechanism by which the Fairness Doctrine may reduce the influence of false speech—not by curing it with truthful speech ex post, but by limiting the amount of falsity that reaches people’s ears in the first place. As Leiter recounts, the repeal of the Fairness Doctrine paved the way for the emergence of wildly popular right-wing media outlets such as Fox News and The Rush Limbaugh Show that were less committed than their “mainstream” counterparts to traditional journalistic norms of objectivity and truth-seeking. It is hard to imagine how Fox News could maintain its brand under the Fairness Doctrine, and indeed Fox News pulled out of the United Kingdom in 2017 after repeated violations of U.K. broadcasting standards on “due impartiality and due accuracy.” Were the United States to bring back the Fairness Doctrine, broadcasters like Fox News would have to overhaul their approach to political coverage or avoid controversial issues altogether.
There does not appear to be any momentum at this time for reviving the Fairness Doctrine, and if Congress or the Federal Communications Commission were to do so, I assume the Supreme Court would rebuff them. It is nonetheless instructive to think about such a reform’s social-epistemological implications in light of the research recounted above. Policies like the Fairness Doctrine simultaneously stimulate and stifle political expression; they promote dissenting viewpoints while making it less likely that certain sorts of inflammatory and irresponsible claims will be uttered on-air or emphasized to the same extent. Discourse and disclosure are easy to celebrate. But at least when it comes to inculcating factually accurate beliefs across society, the Fairness Doctrine’s chilling effects and undercutting of hyperpartisan media models may be more consequential than all of the counterargumentation it generates.
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I hasten to add that this does not add up to a clear case for the Fairness Doctrine, much less a call for broader efforts to restrict political speech. The pursuit of truth is just one value at stake in communications law and policy. Moreover, we live in times of rapid cultural, technological, and administrative change, along with ideologically polarized interpretation of that change. Under conditions of radical uncertainty and deep division, we cannot have confidence that the reigning class of policymakers or professionals will have special access to the truth on many matters of public concern.
All of which leaves us in a bind. It may be more important than ever for American democracy to devise means to limit the salience and spread of misinformation, and yet more difficult than ever to secure broad agreement as to what counts as misinformation. We need greater political protection against lies but also greater epistemic humility. More speech won’t help much with either.
David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School and was the Knight Institute’s inaugural visiting scholar, 2017-2018.