6 ms·

Falsehoods and the First Amendment (2019)

21 points by xpe 6y ago

loraa 6y ago
Well that was pretty gay.
rayiner 6y ago
> But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Basically, forget universal principles (I.e. “abstract high minded-ness”) and 230 years of history and experience. Immediately change the rules based on unproven science in response to the first crisis. This would amount to nothing more than a government takeover of speech by experts. Maybe the experts can be trusted, maybe they can’t be. Maybe they can overcome their biases, maybe they cannot. The evidence is not good. Even in the era of Trump’s outrageous obvious falsehoods, the fact checkers wandered into quite debatable territory. And especially when that happened; different speakers were not treated alike. There is a reason only the most obvious falsehoods are outside the scope of the first amendment. Anything that requires deductive reasoning from evidence almost always bakes in assumptions and ideology. And there is a free market in people having speech that is based on different assumptions and different ideology. It was not unknown in the framers’ day that people would be duped with falsehoods and into mass delusion. They chose to give a broad protection to free speech even in face of that knowledge. Had rules like this been in place during the 1950s social liberalism wouldn’t have happened. We already skirted the line with things like Hollywood’s black list, which suppressed the real military threat of communism, and also anything that could ignite social change. Back then, the first amendment protected that censorship from becoming government censorship. If it had, the prospects are shocking. Do you really think a government that orchestrated the McCarthy hearings could launder any ban of “falsehoods” through a panel of duly appointed experts? In the early to mid 20th century, when we were a technologically advanced society with real scientists, experts believed in things like eugenics. Have our experts finally gotten all the right answers? Are we truly at the end of history? Sunstein is a brilliant guy, but his basic ideology is rule by experts, and this is exactly what it is. Maybe that idea has merit. But it’s not compatible with the first amendment.
- selfishgene 6y ago
  Just to clarify, it sounds like his ideology is "rule by experts" only when the experts in office agree with the rest of his political ideology. When someone like Trump is in office who he doesn't like, then I presume that this expertise to censor "falsehoods" is supposed to be found in unelected "experts" like our social media tycoons. "Brilliant guy"?
  - rayiner 6y ago
    I give Sunstein more credit than that. He’s politically quite centrist, supporting Robert’s nomination. > But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science.
    - selfishgene 6y ago
      The issue here is not whether Sunstein's being centrist, but whether he's making sense at all. Who are the experts who get to decide what counts as a "falsehood"? For example, how many of us really know the details about how polls operate in each of the 50 states to know whether or not fraud could have occurred on such a level to affect the outcome. For my part, I don't really care all that much because the bigger problem in this country is not whether Trump or Biden becomes our next president in a few days, but for how much (in terms of corporate campaign donations) this new administration was purchased. Until we remove corporate donations from the election process, a lot of the candidates' campaign promises, on both sides, is just a bunch of empty rhetoric.
  - handedness 6y ago
    The public confidence in experts is rapidly eroding in many sectors, in all major political factions. I would not want to bet on a near-term future that relies on public confidence in experts to function normally. It worked really, really well for the better part of the last century, but complexity and technology has grown exponentially, which makes that a less tenable system.
eximius 6y ago
> Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes They pretty much already do, via many different soft levers they can pull. The problem isn't whether they can, but how can they do is effectivly and fairly? There is an underlying question of 'should they', which will almost always essentially be 'no, but maybe we don't have a choice'.
amadeuspagel 6y ago
Cass Sunstein once wrote an essay explaining how "probability neglect" explains why people are "more scared [of the coronavirus] then they have any reason to be"[1]. And he thinks that because other people suffer from biases (such as probability neglect) people like him should be in charge of censoring falsehoods. [1]: https://www.bloomberg.com/opinion/articles/2020-02-28/coronavirus-panic-caused-by-probability-neglect https://www.bloomberg.com/opinion/articles/2020-02-28/corona...
- xpe 6y ago
  > Cass Sunstein once wrote an essay explaining how "probability neglect" explains why people are "more scared [of the coronavirus] then they have any reason to be"[1]. Is your hope to discredit Sunstein because you think his article in Bloomberg Opinion, written on Feb. 28, 2020, did not predict the full extent of the coronavirus?
  - rayiner 6y ago
    No he’s pointing out a logical consequence of Sunstein’s argument. The experts can calculate a probability and it may be wrong or right. But elected officials at the end of the day are entitled to do things like err on the side of caution because that’s what their constituents want. They’d rather leave some productivity on the table in a false alarm rather than suffer worse in case the experts are wrong.
  - amadeuspagel 6y ago
    It's not just that his article didn't predict the full extent of the coronavirus, it's that it arrogantly dismisses people who were concerned even then as suffering from a bias. Sunstein justifies censorship with "new findings in behavioral science", I assume he means findings about biases, such as probability neglect. So this is not just a random thing he was arrogant and wrong about, it's an illustration of the perils of dismissing people you don't agree with as biased, and of using that as justification for censoring them.
    - pdonis 6y ago
chiefalchemist 6y ago
If you want a thorough step by step history of 1A this book is a great start: "Freedom for the Thought That We Hate" https://en.m.wikipedia.org/wiki/Freedom_for_the_Thought_That_We_Hate https://en.m.wikipedia.org/wiki/Freedom_for_the_Thought_That...
kipchak 6y ago
I think it's worth noting that the supreme court case 'New York Times Co. v. Sullivan' referenced in the paper was over an ad taken by supporters of Martin Luther King Jr, critical of police treatment that had a gist of truth but factual inaccuracies, resulting in a suit by the police department. I think the spirit of the court's unanimous decision is still relevant. I'm not sure it's possible to restrict speech that is clearly false, harmful and should be restricted, without also opening the door to restrictions on speech that is considered undesirable, such as the aforementioned NYT ad. This is especially difficult the more complicated the potential falsehood to be considered.
- temp8964 6y ago
  How about speech is true and harmful?
xpe 6y ago
Please forgive this public service announcement. There are many relevant and interesting topics in this paper. They are complex, and we are likely to disagree on them. Please consider these threads as an opportunity to clarify the ideas and understand others better.
nickysielicki 6y ago
The author of this paper/article/opinion piece donated quite a bit of money to the Biden campaign last year. https://www.fec.gov/data/receipts/individual-contributions/?contributor_name=cass+sunstein&two_year_transaction_period=2020&min_date=01%2F01%2F2019&max_date=12%2F31%2F2020 https://www.fec.gov/data/receipts/individual-contributions/?...
- xpe 6y ago
  Yes, following the money is good. But in this case, there is even more predictive and explanatory power found in Sunstein's track record. He has written extensively over a long career. His thoughts on the First Amendment are well-documented.
temp8964 6y ago
If one falsehood is censored, logically all arguments trying to defend the falsehood will also be censored. I don't believe a system will be developed to distinguish good / bad arguments. Be aware, falsehood is different from lies.
mikedilger 6y ago
Every idea which moves society forward starts out as an idea first believed to be false. If we censor what we believe to be false, we stop right here - progress halts.
- xpe 6y ago
  > Every idea which moves society forward starts out as an idea first believed to be false. I disagree.
  - mikedilger 6y ago
    Great! Please expound on that.
    - belltaco 6y ago
      What's presented without evidence maybe dismissed without evidence.
    - xpe 6y ago
      I will, of course, grant there were many ideas throughout history that were heretical at the time. But not all. The invention (or discovery) of multiplication moved society forward. Was multiplication considered false before then? Many other times, society often takes its time at recognizing, accepting, and implementing the true ideas.
      - mikedilger 6y ago
        Excellent. I agree. 'Every' was wrong. I didn't think of that when I wrote the statement. If my FALSEHOOD had been censored, I would still be walking around with a dumb idea in my head.
- xpe 6y ago
  > If we censor what we believe to be false, we stop right here - progress halts. This is a flimsy, oversimplified, and false argument. It stands in stark contrast to the depth of thought discussed in the paper.
throw0101a 6y ago
See also "Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act" * https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml https://www.techdirt.com/articles/20200531/23325444617/hello... * https://twitter.com/BadSec230Takes https://twitter.com/BadSec230Takes
xpe 6y ago
Sunstein raises an important criticism of the "free market of ideas" argument: > No one should anyone doubt that for some falsehoods, the marketplace works exceedingly poorly; it can be the problem, not the solution, perhaps especially online. Far from being the best test of truth, the marketplace ensures that many people accept falsehoods, or that they take mere fragments of lives, or small events, as representative of some alarming or despicable whole. Behavioral science makes this point entirely clear. Many people recognize the benefits of (1) well-functioning markets and (b) freedom of speech. However, from this, one should not assume that their combination is necessarily wise. Put another way, one should not automatically assume that existing markets (whether it be newspapers, social media, and so on) are effective ways at promoting beneficial freedom of speech in the context of a democracy.
xpe 6y ago
Here is another key argument from the paper: > As we shall see, the plurality in Alvarez [1] was myopic in focusing largely on established categories of cases, such as libel, in which false statements of fact can sometimes be regulated or sanctioned. In the modern era in particular, other false statements, falling well short of libel, can cause serious problems for individuals and society, even if they do not fit within established categories. The quote below gives some context about "established categories of cases" [2]: > As a general rule, content-based restrictions on speech have been permitted only when confined to a few "historic and traditional categories of expression," such as speech likely to incite imminent lawless action, speech integral to criminal conduct, "fighting words," child pornography, fraud, and speech presenting some grave and imminent threat that the government has the power to prevent. [2] [1] https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-us-v-alvarez https://www.uscourts.gov/educational-resources/educational-a... [2] https://www.uscourts.gov/educational-resources/educational-activities/holding-us-v-alvarez https://www.uscourts.gov/educational-resources/educational-a...
lawnchair_larry 6y ago
I think it’s safe to declare that McCarthyism is officially upon us again.

21 points by xpe 6y ago

Well that was pretty gay.

> But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Basically, forget universal principles (I.e. “abstract high minded-ness”) and 230 years of history and experience. Immediately change the rules based on unproven science in response to the first crisis. This would amount to nothing more than a government takeover of speech by experts. Maybe the experts can be trusted, maybe they can’t be. Maybe they can overcome their biases, maybe they cannot. The evidence is not good. Even in the era of Trump’s outrageous obvious falsehoods, the fact checkers wandered into quite debatable territory. And especially when that happened; different speakers were not treated alike. There is a reason only the most obvious falsehoods are outside the scope of the first amendment. Anything that requires deductive reasoning from evidence almost always bakes in assumptions and ideology. And there is a free market in people having speech that is based on different assumptions and different ideology. It was not unknown in the framers’ day that people would be duped with falsehoods and into mass delusion. They chose to give a broad protection to free speech even in face of that knowledge. Had rules like this been in place during the 1950s social liberalism wouldn’t have happened. We already skirted the line with things like Hollywood’s black list, which suppressed the real military threat of communism, and also anything that could ignite social change. Back then, the first amendment protected that censorship from becoming government censorship. If it had, the prospects are shocking. Do you really think a government that orchestrated the McCarthy hearings could launder any ban of “falsehoods” through a panel of duly appointed experts? In the early to mid 20th century, when we were a technologically advanced society with real scientists, experts believed in things like eugenics. Have our experts finally gotten all the right answers? Are we truly at the end of history? Sunstein is a brilliant guy, but his basic ideology is rule by experts, and this is exactly what it is. Maybe that idea has merit. But it’s not compatible with the first amendment.

selfishgene 6y ago
Just to clarify, it sounds like his ideology is "rule by experts" only when the experts in office agree with the rest of his political ideology. When someone like Trump is in office who he doesn't like, then I presume that this expertise to censor "falsehoods" is supposed to be found in unelected "experts" like our social media tycoons. "Brilliant guy"?
- rayiner 6y ago
  I give Sunstein more credit than that. He’s politically quite centrist, supporting Robert’s nomination. > But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science.
  - selfishgene 6y ago
    The issue here is not whether Sunstein's being centrist, but whether he's making sense at all. Who are the experts who get to decide what counts as a "falsehood"? For example, how many of us really know the details about how polls operate in each of the 50 states to know whether or not fraud could have occurred on such a level to affect the outcome. For my part, I don't really care all that much because the bigger problem in this country is not whether Trump or Biden becomes our next president in a few days, but for how much (in terms of corporate campaign donations) this new administration was purchased. Until we remove corporate donations from the election process, a lot of the candidates' campaign promises, on both sides, is just a bunch of empty rhetoric.
- handedness 6y ago
  The public confidence in experts is rapidly eroding in many sectors, in all major political factions. I would not want to bet on a near-term future that relies on public confidence in experts to function normally. It worked really, really well for the better part of the last century, but complexity and technology has grown exponentially, which makes that a less tenable system.

eximius 6y ago

> Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes They pretty much already do, via many different soft levers they can pull. The problem isn't whether they can, but how can they do is effectivly and fairly? There is an underlying question of 'should they', which will almost always essentially be 'no, but maybe we don't have a choice'.

amadeuspagel 6y ago

Cass Sunstein once wrote an essay explaining how "probability neglect" explains why people are "more scared [of the coronavirus] then they have any reason to be"[1]. And he thinks that because other people suffer from biases (such as probability neglect) people like him should be in charge of censoring falsehoods. [1]: https://www.bloomberg.com/opinion/articles/2020-02-28/coronavirus-panic-caused-by-probability-neglect https://www.bloomberg.com/opinion/articles/2020-02-28/corona...

xpe 6y ago
> Cass Sunstein once wrote an essay explaining how "probability neglect" explains why people are "more scared [of the coronavirus] then they have any reason to be"[1]. Is your hope to discredit Sunstein because you think his article in Bloomberg Opinion, written on Feb. 28, 2020, did not predict the full extent of the coronavirus?
- rayiner 6y ago
  No he’s pointing out a logical consequence of Sunstein’s argument. The experts can calculate a probability and it may be wrong or right. But elected officials at the end of the day are entitled to do things like err on the side of caution because that’s what their constituents want. They’d rather leave some productivity on the table in a false alarm rather than suffer worse in case the experts are wrong.
- amadeuspagel 6y ago
  It's not just that his article didn't predict the full extent of the coronavirus, it's that it arrogantly dismisses people who were concerned even then as suffering from a bias. Sunstein justifies censorship with "new findings in behavioral science", I assume he means findings about biases, such as probability neglect. So this is not just a random thing he was arrogant and wrong about, it's an illustration of the perils of dismissing people you don't agree with as biased, and of using that as justification for censoring them.
  - pdonis 6y ago

chiefalchemist 6y ago

If you want a thorough step by step history of 1A this book is a great start: "Freedom for the Thought That We Hate" https://en.m.wikipedia.org/wiki/Freedom_for_the_Thought_That_We_Hate https://en.m.wikipedia.org/wiki/Freedom_for_the_Thought_That...

kipchak 6y ago

I think it's worth noting that the supreme court case 'New York Times Co. v. Sullivan' referenced in the paper was over an ad taken by supporters of Martin Luther King Jr, critical of police treatment that had a gist of truth but factual inaccuracies, resulting in a suit by the police department. I think the spirit of the court's unanimous decision is still relevant. I'm not sure it's possible to restrict speech that is clearly false, harmful and should be restricted, without also opening the door to restrictions on speech that is considered undesirable, such as the aforementioned NYT ad. This is especially difficult the more complicated the potential falsehood to be considered.

temp8964 6y ago
How about speech is true and harmful?

xpe 6y ago

Please forgive this public service announcement. There are many relevant and interesting topics in this paper. They are complex, and we are likely to disagree on them. Please consider these threads as an opportunity to clarify the ideas and understand others better.

nickysielicki 6y ago

The author of this paper/article/opinion piece donated quite a bit of money to the Biden campaign last year. https://www.fec.gov/data/receipts/individual-contributions/?contributor_name=cass+sunstein&two_year_transaction_period=2020&min_date=01%2F01%2F2019&max_date=12%2F31%2F2020 https://www.fec.gov/data/receipts/individual-contributions/?...

xpe 6y ago
Yes, following the money is good. But in this case, there is even more predictive and explanatory power found in Sunstein's track record. He has written extensively over a long career. His thoughts on the First Amendment are well-documented.

temp8964 6y ago

If one falsehood is censored, logically all arguments trying to defend the falsehood will also be censored. I don't believe a system will be developed to distinguish good / bad arguments. Be aware, falsehood is different from lies.

mikedilger 6y ago

Every idea which moves society forward starts out as an idea first believed to be false. If we censor what we believe to be false, we stop right here - progress halts.

xpe 6y ago
> Every idea which moves society forward starts out as an idea first believed to be false. I disagree.
- mikedilger 6y ago
  Great! Please expound on that.
  - belltaco 6y ago
    What's presented without evidence maybe dismissed without evidence.
  - xpe 6y ago
    I will, of course, grant there were many ideas throughout history that were heretical at the time. But not all. The invention (or discovery) of multiplication moved society forward. Was multiplication considered false before then? Many other times, society often takes its time at recognizing, accepting, and implementing the true ideas.
    - mikedilger 6y ago
      Excellent. I agree. 'Every' was wrong. I didn't think of that when I wrote the statement. If my FALSEHOOD had been censored, I would still be walking around with a dumb idea in my head.
xpe 6y ago
> If we censor what we believe to be false, we stop right here - progress halts. This is a flimsy, oversimplified, and false argument. It stands in stark contrast to the depth of thought discussed in the paper.

throw0101a 6y ago

See also "Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act" * https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act.shtml https://www.techdirt.com/articles/20200531/23325444617/hello... * https://twitter.com/BadSec230Takes https://twitter.com/BadSec230Takes

xpe 6y ago

Sunstein raises an important criticism of the "free market of ideas" argument: > No one should anyone doubt that for some falsehoods, the marketplace works exceedingly poorly; it can be the problem, not the solution, perhaps especially online. Far from being the best test of truth, the marketplace ensures that many people accept falsehoods, or that they take mere fragments of lives, or small events, as representative of some alarming or despicable whole. Behavioral science makes this point entirely clear. Many people recognize the benefits of (1) well-functioning markets and (b) freedom of speech. However, from this, one should not assume that their combination is necessarily wise. Put another way, one should not automatically assume that existing markets (whether it be newspapers, social media, and so on) are effective ways at promoting beneficial freedom of speech in the context of a democracy.

xpe 6y ago

Here is another key argument from the paper: > As we shall see, the plurality in Alvarez [1] was myopic in focusing largely on established categories of cases, such as libel, in which false statements of fact can sometimes be regulated or sanctioned. In the modern era in particular, other false statements, falling well short of libel, can cause serious problems for individuals and society, even if they do not fit within established categories. The quote below gives some context about "established categories of cases" [2]: > As a general rule, content-based restrictions on speech have been permitted only when confined to a few "historic and traditional categories of expression," such as speech likely to incite imminent lawless action, speech integral to criminal conduct, "fighting words," child pornography, fraud, and speech presenting some grave and imminent threat that the government has the power to prevent. [2] [1] https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-us-v-alvarez https://www.uscourts.gov/educational-resources/educational-a... [2] https://www.uscourts.gov/educational-resources/educational-activities/holding-us-v-alvarez https://www.uscourts.gov/educational-resources/educational-a...

lawnchair_larry 6y ago

I think it’s safe to declare that McCarthyism is officially upon us again.