Regulating The Fake News Marketplace

If libertarians see the marketplace as the solution to all evils, progressives see regulation, and Harvard lawprof Noah Feldman is their apologist.* He proposes that fake news may not be protected speech. In fairness, the notion has surface appeal, because who would possibly champion fake news?** Who wouldn’t agree that we deserve better than deceit?

The piece, by the journalist Jessica Lessin, argued that Facebook should not be expected to accept the type of fact-checking responsibilities that some critics say should come with being the dominant news aggregator.

“No matter how many editors Facebook hired, it would be unable to monitor the volume of information that flows through its site, and it would be similarly impossible for readers to verify what was checked,” she wrote.

Who is this woman brave enough to come forward in Facebook’s defense?

As it turns out, she and her husband are deep in bed with Zuckerberg, to the point where she might well be characterized as a shill. And yet, some fake news site put her out there as a legitimate voice without revealing her compromised and conflicted wallet position. What nefarious fake news site did this? That would be the New York Times.

But that’s the Times, right? Let’s not be ridiculous, as it would be to contend that the Gray Lady was fake. And, indeed, it would, though it would be fair to question the bias of its writers. Yet, Feldman makes his pitch:

In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.

Sounds fine, but for the fact that he’s pulled a shrewd one on us in the first sentence. Ideas are neither true nor false. Facts may be true or false, but ideas aren’t the same as facts. Facts are neither true nor false either, but facts. If it didn’t happen, it’s not a fact. If it did happen, it is, but then, the interpretation of the significance of the occurrence strays from fact into ideas. Feldman’s interpretation of fact is no more valid than, say, mine or yours. Sure, he thinks his is right, and that may well be his “truth,” but it’s not truth. Just his idea.

In the most legal academic of fashions, Feldman then starts to gift wrap his initial conflation of fact and interpretation:

Start with the famous metaphor introduced by Justice Oliver Wendell Holmes almost 100 years ago, in a dissent in the 1919 case Abrams v. United States. Holmes argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

With the appeal to authority, especially one that the non-lawyer reader would merely accept unwittingly, he begins, lapsing into John Stuart Mills and John Milton, lest dead white European cis males not be given their due, culminating in a return to Holmes’ famously debunked quote:

But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

What Feldman has done is conflated facts with ideas, crafted a strawman to be knocked down with a well-known but disavowed quote. Some might even call this “fake news,” though that would be unfair as it’s not news at all, just opinion.

The classic solution to market failure is regulation. Holmes, in his fire-theater example, certainly believed that was permitted by the First Amendment.

The question is whether government regulation of fake news would be justified and lawful to fix this market failure. Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.

Whether Feldman has mad skillz to read the mind of a dead justice isn’t clear, so his employment of what Holmes “certainly believed” to make his appeal, beyond being irrelevant (if Holmes would have believed this, so what?), takes a huge leap from speech that causes an immediate panic to news that isn’t “truth” according to the government.

Feldman gives passing recognition to the current state of the law, Holmes notwithstanding:

Under current First Amendment doctrine, that wouldn’t be allowed. The Supreme Court has been expanding protections for knowingly false speech, not contracting it. And it would be extremely difficult to separate opinion from fact on a systematic basis.

Indeed, it was too difficult for Feldman to accomplish in his own commentary. as demonstrated by his next paragraph:

But we shouldn’t assume that the marketplace of ideas works perfectly. And given that, we shouldn’t be slavishly committed to treating the marketplace metaphor as the basic rationale for free speech.

Who argues that the marketplace of ideas works perfectly? Almost nothing works perfectly, which Feldman is likely to realize, as he sets up his final strawman for the kill. Then the coup de grace, the “slavish” commitment as the “basic rationale” for free speech. You’re not a slave, are you?

So while the internet lost its shit over a legally absurd twit by Trump about criminalizing flag burning upon pain of possible loss of citizenship, neither of which is even a remote possibility to anyone with a modicum of knowledge about law, Feldman offers in his dulcet intellectual tones state-sponsored censorship of “fake news” as the solution. And all the people ridiculing Trump are nodding their bobble heads at his brilliantly true idea.

*As noted with regard to stupid twitter tricks, Trump twits stupid things because that’s all he’s got, and everyone knew that about him when he was elected. The flip side is the finely tuned rhetoric of the academy, which seeks to undermine the same principles but in far slicker, jargonized fashion. The question isn’t who’s ramming what down your throat, but how sweetly they inform you that it’s coming.

**If this strikes you as somewhat similar to the cries to criminalize free speech to eradicate revenge porn, another evil for which there can be no reasonable champion, there’s a good reason. But to the extent the revenge porn laws are a blight on the First Amendment, Feldman’s proposition would be far worse, by light years. He makes Mary Anne Franks look like the deceitful piker she is, a mere blackhead on the First Amendment compared to Feldman’s festering boil.

13 thoughts on “Regulating The Fake News Marketplace

  1. Mr. Median

    “Just about every adult human being back then had a brain weighing about three kilogrammes! There was no end to the evil schemes that a thought machine that oversized couldn’t imagine and execute.
    So I raise this question, although there is nobody around to answer it: Can it be doubted that three-kilogramme brains were once nearly fatal defects in the evolution of the human race?” Kurt Vonnegut, Galápagos.

  2. Denver prof

    The good professor has used Marxist logic – the brothers Marx. Please recall the scene from the first Marx Brothers movie – Cocoanuts. When the workers at the hotel complain about not getting paid for two weeks and demand their wages the following dialogue occurs:
    Worker: We want our wages!
    Groucho: Wages, do you want to be wage slaves? Answer me that.
    Worker: No.
    Groucho: Of course not. And what makes wage slaves? Wages! I want you to be free. Remember there’s nothing like liberty….

  3. Dan

    Excellent analysis at Popehat. In the paragraph led by the following: “This time Holmes joined Justice Brandeis…” there begins a discussion of “fake news”.

  4. Christopher Best

    “What nefarious fake news site did this? That would be the New York Times.”

    Wow! Bravo! And you lawyer types keep trying to tell me Perry Mason moments don’t happen in real life. I *felt* the dramatic sting at the end of that sentence.

    Honestly the cognitive dissonance is stunning: How can a person in one moment be in SHEER PANIC about the crazy shit they expect Trump to do with the new powers he gets in a month and a half and in the next moment seriously say “We need to give the GOVERNMENT the ability to decide what’s true or not!” Who do you think the Government is going to be for the next four years, numbskull?

    But no, the problem is with ignorant voters. Totes.

  5. Matthew S Wideman

    It is very scary how both sides of the political spectrum can leap to very clearly fascist ideas when the results of an election is incongruent with their belief system. Progressives are starting a mini melt down.

    SHG, you so aptly point out that no system is or can be perfect. The Federal Government has a tough enough time determining who is alive or dead in the Social Security System. I shudder to think of all the twisted ways the Federal Government would use a National Anti-Fake News Law after an election.

  6. Troutwaxer

    I don’t see how a claim to be “news” is truthful if you know your stories are false, so it sounds like “fake news” might kinda-sorta be a Lanham act violation, but if I was a lawyer taking that claim to court I’d want my money up front. But some kind of “false advertising” claim might be the best way to attack the whole thing – but a very weak case regardless, and not a criminal case.

    Or maybe “You win. There were no damages, so I’m awarding you a dollar.”

    1. SHG Post author

      You nailed the Billy Madison award for the day. Nice moving coming in late so no one could possibly edge you out.

  7. marjn

    Quoting Justice Holmes while conflating facts and ideas seems oddly appropriate, when you remember that in Holmes’s most famous quote, he conflated “shouting fire in a crowded theater” with passing out pamphlets.

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