Fake news and free speech

Speaking of Greens that have mellowed, mention should also be made of philosopher Peter Singer, perhaps Australia’s most distinguished living intellectual and also a one-time Greens Senate candidate in Victoria.

In a column last Friday, Singer takes on the phenomenon of “fake news” and its implications for freedom of speech.

In the rather short time that the issue has been around, it’s become an article of faith among certain sections of the right that the whole notion of “fake news” is just a plot to suppress the free speech of non-mainstream voices (right-wing ones, of course). Others see this as a further symptom of the Trumpisation of the right.

Those who worry about the threat to free speech may not be appeased by Singer’s views (for reasons we’ll come to shortly), but they certainly should read his explanation of the problem. Social and technological developments have made fake news – not unpopular opinions, but deliberately manufactured falsehoods – a real threat to the sort of civilised debate that democracy needs.

As Singer says,

Whether or not fake news cost Clinton the presidency, it plainly could cause a candidate to lose an election and upset international relations. It is also contrary to one of the fundamental premises on which democracy rests: that voters can make informed choices between contending candidates.

You shouldn’t have to be a “progressive” or any other specific political type to recognise that as a problem.

But what to do about it? Singer accepts – as do I – that falsehood, even deliberate falsehood, does not of itself remove something from the constitutional protection of freedom of speech. He notes that some fake news would potentially be subject to libel suits, but dismisses that as an inadequate remedy due to cost, slowness and the dependence on monetary damages.

Instead he suggests we consider prosecutions for criminal libel. Unlike the civil version, criminal libel has fallen out of use in most common law jurisdictions, partly due to concerns about its use to suppress political dissent. In the past, however, that has been very much a matter of targeting the left; whether the defenders of fake news on the right could adapt the argument for themselves is uncertain. (Here’s a very helpful Australian discussion of the law and its possible uses.)

But libel law of whatever sort would be at best a clumsy instrument. It depends on harm to the reputation of identifiable persons, rather than focusing on the damage to public debate. This is especially difficult territory for liberals (and Singer, for all his radical origins, has come to look a lot like a liberal individualist), because in general we believe that harm to others is an essential condition before conduct should be legally penalised – and actual physical harm at that, not just hurt feelings.

I’m a sceptic about defamation law, whether criminal or civil, for the same reason as I reject the claims of intellectual “property”: it amounts to claiming the right to control what goes on in other people’s heads. But I’m unsure what else can be done about the fake news problem.

Brooke Borel at FiveThirtyEight also had a go at it last week, with some helpful suggestions. In particular, she argues that the mainstream media need to clean up their own act: stop treating stories as clickbait, check reports before republishing them, focus on actual policy rather than the political horse race. But a lot of people have been saying these things for some years now, and it’s not clear whether anyone is listening.

If we’re looking at common law remedies, however, one thing that probably should be discussed more is the option of prosecuting for fraud. (I’ve suggested this before.) False statements themselves are not immune from free speech protections, but false statements designed to make other people part with their money always have been. If what purports to be a news site is in fact a scam to attract advertising dollars by publishing material that’s known to be false, I don’t see why its owners shouldn’t be prosecuted like any other scam merchant.

That, however, invites the response, “Why should those who publish lies for financial gain get punished, while those who do it for political gain go free?” I don’t have a complete answer to that. But I think it’s something we need to work on.

4 thoughts on “Fake news and free speech

  1. “I’m a sceptic about defamation law, whether criminal or civil, for the same reason as I reject the claims of intellectual “property”: it amounts to claiming the right to control what goes on in other people’s heads.”

    Thank you Charles, this is something that I’ve been saying often. I first came across this line of reasoning in Walter Block’s book “Defending the Undefendable”. There’s also a parallel argument in there: the presence of libel and slander laws *causes* people to hold the view that if they read something it must be true.

    There are other issues at play here: the public’s apathy and unwillingness to pay for quality journalism in the internet age, and the education system’s failure to produce citizens that can discern fake news from real news.

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    1. Thanks Matt – yes, I’m very fond of Block’s book. He’s a bit over the top on some things, but there’s some great stuff there. And I agree with you about the failures of education (most obviously in America, but tending the same way here). But that’s a big and difficult topic.

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  2. Claims of intellectual property don’t claim the right to control what goes on in others’ heads. What they claim is if someone brings an idea or piece of work out into the world, they have the right to make a bit of profit out of it before everyone else does. The system can be and is broken though with the admission of giant corporations into the contested space.
    Why do you blame “the education system” for failing to convince people to reject fake news? There is a thing called “the home” and there are things called “traditional media” which have been producing fake news forever. All the celebrity stuff is an example. Back in the 1990s I was teaching a PR class and asked them what they thought of Princess Di. “Such a wonderful mother,” crooned a number of the young women students. I deconstructed that image and how it was achieved from a PR POV. They rejected it. They simply could not grok the notion that Princess Di spent most of her life swanning around far from her kids but was produced for photoshoots on appropriate occasions and places throughout the year to give the impression that she was with them all the time — accompanied by text which (almost) said that.
    And where did they see/hear this fake news? In mainstream magazines and newspapers, on mainstream TV.
    Is this different from a deliberately perpetrated lie like Obama was not a genuine American citizen? As long time journalist, I don’t see a lot of difference, myself.
    And what about the supermarket “news”sheets with their stories of weird stuff that is clearly concocted out of thin air. A good read back in the day was a book called something like “A Crooked Sixpence” by an Australian journalist talking about his time in the sludge end of Fleet Street, the mighty capital of journalism at the time, where they freely manufactured shock-horror stuff out of thin air and built a mighty edifice out of the tissue thin revelations of a weeping teenage girl desperate for a couple of bob to escape from the nasty pointed fingers of those who would read the story and wallow in it.

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    1. Thanks Geoff, and apologies for not responding sooner. Re intellectual “property”: it’s one thing to say that creators of something have “the right to make a bit of profit out of it”, but it’s a different thing to conceptualise that as a property right – among other things, that opens the way to the problem of giant corporations that you mention.
      Otherwise I don’t think we disagree about much. I do think the education system could do rather more than it does, but I agree that traditional media largely have themselves to blame. Supermarket magazines are quite a good example of a pre-internet case of “fake news”. So yes, teaching your children to have better bullsh*t detectors is definitely part of the solution.

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