Advocacy for restricting misinformation and disinformation has become more prevalent.
Former Secretary of State Hillary Clinton recently called for the repeal of Section 230 of the Communications Decency Act, a federal law that ensures that social networks are not held legally responsible for the content of what their users publish online. The law provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This has allowed the internet and social media to serve as a platform for communication and expression because companies generally cannot be held liable for the online activities of others.
One of the largest problems with restricting false information is that it can have a chilling effect on all types of expression, regardless of whether or not it is true. When the facts are still developing and events are happening quickly, speakers cannot always be absolutely sure of the truth or accuracy of their claims or arguments, so even those who are correct may be discouraged from expressing their views because of a lack of certainty.
As the Supreme Court stated in Gertz v. Welch, “Punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.” This is one of the reasons why the Supreme Court has afforded so much protection even to false statements under the First Amendment. As the court said in New York Times Co. v. Sullivan, an “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.”
It is also difficult to test whether or not an opinion or claim is true prior to it being expressed. Even after the opinion is expressed, it can take a matter of time to determine its veracity. In recent years, we have witnessed numerous instances of things which were originally deemed to be disinformation, but which in fact turned out to be true. In a recent letter to the House Judiciary Committee, Facebook CEO Mark Zuckerberg wrote, “The FBI warned us about a potential Russian disinformation operation about the Biden family and Burma in the lead up to the 2020 election. That fall, when we saw a New York Post story reporting on corruption allegations involving then-Democratic presidential nominee Joe Biden’s family, we sent that story to fact checkers for review and temporarily demoted it while waiting for a reply. It’s since been made clear that the reporting was not Russian disinformation, and in retrospect, we shouldn’t have demoted the story.”
There is also the utilitarian effect that even completely false speech has in allowing society to progress further toward the truth. This was the insight that the philosopher John Stuart Mill recognized centuries ago in his famous essay, “On Liberty”: “The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” False claims often spur further investigation into what is actually the case, and society gains in the information that is uncovered and the greater certainty that comes from extended research and debate.
When it comes to actual conspiracy theories, trying to suppress false information is often counterproductive. Those who propagate conspiracy theories often justify the lack of evidence for their claims by saying that the proof is being hidden. Trying to restrict such types of speech only gives credence to those kinds of conspiratorial claims. The proper remedy is to allow ideas, opinions and claims to be expressed, so that they can be critiqued, debated and shown to be mistaken, so that minds can be changed. As Supreme Court Justice Louis Brandeis famously wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
Perhaps the strongest argument against restrictions on misinformation is the pernicious appearance such constraints generate. When the government or any entity attempts to suppress speech or ideas, it creates the impression on the citizenry that it has something to hide, whether or not it actually does. An open society that is confident in its members’ powers of human reason to discern the true from the false should not be afraid to allow the greatest range of expression that is consistent with law and order. That is what our constitutional heritage has protected and which we should continue to uphold.