REGULATING FAKE NEWS: Curing A Cold With Cyanide

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Charles J. Glasser, Jr., Esq. Professor, Media Ethics and Law, NYU
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Post a political item on Facebook and go to jail. Does that sound right to you? The passage of laws restricting and even criminalizing “fake news” on social media are picking up steam around the world. In the United States, calls for passage of similar laws are being made every day. Be afraid. Be very afraid.

What we forget

Remember that the indignant freak-out about “fake news” became part of the public vernacular only after the failure to coronate Hillary Clinton to her rightful place, then propelled further by President Trump’s constant misuse of the phrase. Never mind that disinformation is as old as politics itself, and please, conveniently forget that the United States itself – under many Democratic as well as Republican administrations – has a long and shameful history of “meddling” in foreign elections going back at least as far as 1946 in more than 80 instances. But hey, at least we’re not Russians.

No, you must forget that Thomas Jefferson’s operatives called John Adams a “hermaphrodite” in the early 19th century, not to mention Richard Nixon’s infamous “Pink Lady” smear campaign against Helen Douglas in the 1950 California gubernatorial election. (That was back when Republicans rather than Democrats looked for Russians hiding under the bed). The speed and scope of the Internet, we are told, changes everything. This view is predicated upon a too-common elitist paternalism that assumes the stupidity of anyone who does not repeat the talking points of the day. I’ll do the thinking around here, pal, I went to Yale.

The Russians are coming…again. but so what?

Even before Robert Mueller issued indictments against 13 Russian nobodies, the nanny state has been whetting a national appetite for state-sponsored censorship. On February 13, Director of National Intelligence Dan Coats told the Senate Select Committee on Intelligence (and the public) that the midterm elections are “vulnerable” to the same Russian “meddling” that has become a dog whistle for calling the current Presidency “illegitimate.” Only several days before, CIA Director Mike Pompeo gave an interview to the BBC saying that he has “every expectation” that the Russians will continue to try to interfere with our simon-pure media relationship to the electoral process. (JournoList? Never happened.)

The Washington Post’s token conservative columnist Jennifer Rubin sounded the alarm recently, quoting with approval Max Bergmann, the head the Moscow Project for the Center for American Progress, who stated flatly that “our democracy was attacked in 2016, and the intelligence community just unanimously told us that the Russians plan to do it again in the 2018 elections.”

There’s just one problem: while it’s clear that the Russians tried to sow discord (as they have since 1917), there has yet to be a single clear, coherent study that “fake news” and “viral memes” accomplished anything but hardening the bubble on the fringes. In fact, scholarly attempts sponsored by the Reuters Foundation (admittedly based on French and Italian data) showed that “None of the false news websites had an average monthly reach of over 3.5 percent in 2017, with most reaching less than 1 percent of the online population.” I have yet to see a study showing “fake news” induced vote-changing based on anything but extrapolation and conjecture.

Enter social media and regulation

Aha!” says the would-be censor. “You forgot about the impact of social media!” Indeed, even the Reuters study acknowledges that “the level of Facebook interaction (defined as the total number of comments, shares, and reactions) generated by false news outlets matched or exceeded that produced by the most popular news brands.”

Social media has become the insertion point for criminalizing speech and creating government-approved messaging. Germany led the way by passing laws in June of last year that compel large outlets such as Facebook and Twitter to rapidly remove fake news inciting hate, as well as other “criminal” content, or face fines as high as 50 million euros ($53 million). France’s President Emmanuel Macron announced plans to grant judges emergency powers to remove or block certain content deemed to be “fake” during sensitive election periods. United Kingdom Prime Minister Theresa May authorized the creation of the spookily named “National Security Communications Unit” who may be given police powers over political speech shared through social media. Politicians and their subordinates get to determine “truth.”

What’s missing in the discussion is the critical issue that has always dogged government restriction of speech: Who and how does a government determine what news item is “fake” or rises to criminality? Those calling for government to censor social media forget that there is already much government censorship in the name of “protecting” political order. China, for example frequently levies harsh prison sentences against those who “show disloyalty”, “incite division of the country” or “harm national unification.” That rules out pretty much any speech other than the official party line.

Similarly, Singapore, Malaysia and most Arab states commonly arrest and imprison journalists and commentators for speech that is deemed “critical of the government or the judiciary.” Thailand’s lèse-majesté laws famously make insulting the royal family an offense worth 15 years in prison. (FUN FACT: The 1956 musical “The King and I” is still banned in Thailand, because — gasp! — a woman shows up the King).

Do you really want to give the Clintons, the Bushes and the Kennedys that kind of power? Can you imagine letting Nancy Pelosi or Maxine Waters or Devin Nunes decide that your Facebook posting is a threat to public order?

What is to be done?

In future op-eds, we’ll look at various solutions and processes that might strike an appropriate balance between a compelling governmental interest and least restrictive means. Some believe simple market forces and pressure on the social media giants is one way, others posit that educational programs creating a smarter generation of readers might do the trick. Yet others suggest self-regulating oversight bodies, sort of a FINRA for Facebook and Twitter. Maybe they’ll work, maybe they won’t.

But in the meantime, taking cyanide to cure your cold is a stupid idea, and anyone seriously suggesting deeding over to any government the power to filter political speech should remember that “their” political party may not always be in power. Orwell’s “1984” is a warning, not a how-to guide.

Charles Glasser was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook.” He teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.