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Thursday, November 12, 2009

False "Facts", Free Speech, the First Amendment

Here's the abstract from Fred Schauer's recent Melville Nimmer lecture:

A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.

As Schauer observes, the idea that "the truth will out" is still with us, despite the mixed historical support for it, and has powerfully shaped free-speech rhetoric.  To be sure, "public non-commercial factual falsity will likely remain constitutionally protected for the forseeable future."  But, the "First Amendment is only a tiny sliver of communications policy" that "leaves numerous questions of communications policy untouched[.]  One of these questions the question of increasing acceptance of patent factual falsity, and it is a question whose economic, psychological, sociological, cultural, scientific, political, and policy dimensions are far more important than the legal and constitutional ones."


Posted by Rick Garnett on November 12, 2009 at 10:18 AM | Permalink


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Thank you for the response Rick. Because that line is never going to be clear, I believe it is safer to allow people to make false statements than to have public authority silence statements that may be true, even if unproven. It seems that both of your obviously false examples are dealt with very well in the public debate. However, as your paragraph construction acknowledges, the one about Cheney is more akin to my example than the one about Hitler. We can affirmatively prove what Hitler did, but we can only point to a lack of evidence of Cheney's involvement in 911. That strikes me as a meaningful distinction for line drawers.
Very good point, David, about any attempt to legislate truth likely backfiring.

Posted by: anon | Nov 13, 2009 8:18:24 PM

A major problem is ambivalent and cowed journalists largely unwilling to thoroughly explore for their viewers and readers the factual bases for the opinions and facts offered up by public speakers and writers, largely unwilling to challenge those assertions for fear of appearing "biased" or "unbalanced." Sometimes people lie or offer up opinions that they cannot justify by reference to fact and logic and it is neither biased nor unbalanced to call them on it.

Another major problem is a public untrained in critical thinking, overly responsive to emotional appeals and irrational but highly appealing arguments, and/or willfully blind to anything that would contradict preconceived self-centered principles and values.

On the other hand, there is little evidence that the lies Schauer refers to are particularly effective except with recipients already pre-disposed to the message due to bias or self-interest. Such recipients are generally a minority of highly radicalized partisans whose motivations and beliefs are unlikely to be changed by any attempt to legislate truth, something which may indeed merely push them towards a more radical break with reality as they envision a conspiracy to silence their "truth."

Thus, while such unsavory lies are a frustrating and aggravating boil on political, social, and religious discourse, maybe nothing need be done that isn't already being done through ubiquitous counter-arguments by opposing philosophical groups and organizations such as FactCheck.org.

As Supreme Court Justice Louis Brandeis advised, in his famous Whitney v. California opinion in 1927, "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."

- from The Remedy is More Speech by Franklyn Haiman (June 23, 1991)

Posted by: David Gipson | Nov 13, 2009 9:22:50 AM

Anon, you are right -- of course -- that the line between an (obviously) "false fact" (like, "Dick Cheney blew up the World Trade Center") and a statement about motivations and influence that is controversial, but plausible ("In 2003, U.S. officials were influenced by financial interests in Iraqi oil."), is not always going to be clear. So, let's just take the obvious example: A (non-"commercial") obviously "false fact" like "Hitler did not, in fact, orchestrate the deaths of millions of Jews." How should public authority deal (if at all) with such claims?

Posted by: Rick Garnett | Nov 13, 2009 8:32:04 AM

"False factual propositions, " like . . . in 2003, U.S. officials were influenced by financial interests in Iraqi oil.

Or . . . there is god?

I got no sense of what he is advocating.

Posted by: anon | Nov 12, 2009 10:49:20 PM

Rick, my thought as usual is that great (or whatever) minds think alike. It's not up yet, but I have a "review" of Schauer's piece coming out in the next few days on Jotwell. Glad it caught your eye too. I'll link to it when it goes up.

Posted by: Paul Horwitz | Nov 12, 2009 11:09:09 AM

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