> But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science.
Basically, forget universal principles (I.e. “abstract high minded-ness”) and 230 years of history and experience. Immediately change the rules based on unproven science in response to the first crisis.
This would amount to nothing more than a government takeover of speech by experts. Maybe the experts can be trusted, maybe they can’t be. Maybe they can overcome their biases, maybe they cannot. The evidence is not good. Even in the era of Trump’s outrageous obvious falsehoods, the fact checkers wandered into quite debatable territory. And especially when that happened; different speakers were not treated alike.
There is a reason only the most obvious falsehoods are outside the scope of the first amendment. Anything that requires deductive reasoning from evidence almost always bakes in assumptions and ideology. And there is a free market in people having speech that is based on different assumptions and different ideology.
It was not unknown in the framers’ day that people would be duped with falsehoods and into mass delusion. They chose to give a broad protection to free speech even in face of that knowledge.
Had rules like this been in place during the 1950s social liberalism wouldn’t have happened. We already skirted the line with things like Hollywood’s black list, which suppressed the real military threat of communism, and also anything that could ignite social change. Back then, the first amendment protected that censorship from becoming government censorship. If it had, the prospects are shocking. Do you really think a government that orchestrated the McCarthy hearings could launder any ban of “falsehoods” through a panel of duly appointed experts?
In the early to mid 20th century, when we were a technologically advanced society with real scientists, experts believed in things like eugenics. Have our experts finally gotten all the right answers? Are we truly at the end of history?
Sunstein is a brilliant guy, but his basic ideology is rule by experts, and this is exactly what it is. Maybe that idea has merit. But it’s not compatible with the first amendment.
Not only that, but he ignores an obvious alternative that is staring him in the face. From the article (p. 5):
"We can better understand the problem if we note that in ordinary life, many human beings seem to follow a simple rule: people generally do not say things unless they are true, or at least substantially true."
His way of dealing with this is, as you say, rule by experts. But the obvious alternative is for people in general to stop assuming that others generally do not say things unless they are true. And the way to do that is to make people responsible for their own beliefs--to let people suffer harm if they have a false belief that they shouldn't have adopted in the first place because the source it came from was not trustworthy. Then people will have the proper incentive to actually think about the trustworthiness, or lack thereof, of various sources of information.
> Maybe that idea has merit
Based on the actual track record of "experts", I don't think it does. But Sunstein's own stated principles don't even leave room to ask the question. That's the real problem.
A regulator contends that Facebook allowed a fake news item to spread. Facebook contends that it does not meet the criteria for fake news. What happens next?
Where else could the drumbeat to regulate Big Tech’s fake news problem wind up taking us?
Just to clarify, it sounds like his ideology is "rule by experts" only when the experts in office agree with the rest of his political ideology.
When someone like Trump is in office who he doesn't like, then I presume that this expertise to censor "falsehoods" is supposed to be found in unelected "experts" like our social media tycoons.
What he’s describing is technocracy. It’s not a new idea, it’s literally how huge swathes of our government operate, without anyone knowing it because the roles are rarely politicized. One of the controversial themes in the last few years has been how much this administration has politicized seemingly professional and previously uncontroversial staffing to load up loyalists. There’s always been some cronyism in every kind of high profile appointment, but seeing purges in low level public health positions is ridiculous.
We so much expect professionals in these roles that it’s almost never discussed that their roles even exist. They don’t have high turnover and they’re almost never used for political football.
It’s not to say that that’s a panacea, people in comfortable professional roles don’t routinely shake things up. But making their job descriptions political isn’t the solution to that either.
There is no such thing as a completely non-political government "professional" in a position of leadership where their decisions have the potential to impact people's lives in different ways.
For example, Fauci's decision to prioritize the value of human life, including elderly life, over the economy is one I happen to agree with ... but will not deny that there is a political dimension, as well as a moral one, in taking such a position too.
I give Sunstein more credit than that. He’s politically quite centrist, supporting Robert’s nomination.
> But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science.
The issue here is not whether Sunstein's being centrist, but whether he's making sense at all.
Who are the experts who get to decide what counts as a "falsehood"?
For example, how many of us really know the details about how polls operate in each of the 50 states to know whether or not fraud could have occurred on such a level to affect the outcome.
For my part, I don't really care all that much because the bigger problem in this country is not whether Trump or Biden becomes our next president in a few days, but for how much (in terms of corporate campaign donations) this new administration was purchased.
Until we remove corporate donations from the election process, a lot of the candidates' campaign promises, on both sides, is just a bunch of empty rhetoric.
The public confidence in experts is rapidly eroding in many sectors, in all major political factions.
I would not want to bet on a near-term future that relies on public confidence in experts to function normally. It worked really, really well for the better part of the last century, but complexity and technology has grown exponentially, which makes that a less tenable system.
> It worked really, really well for the better part of the last century
No, it didn't. Rule by experts got us a world war, a great depression, another world war, a Holocaust, tens of millions of people killed by Communist governments and well over a billion still ruled by one in China. And that's just picking out the biggest few items.
The reason public confidence in experts is eroding is not that the experts have gotten worse. It's that the experts have lost control over the flow of information, so now they can't prevent everyone else from finding out how bad they actually are and always have been.
It’s not merely growing complexity. It’s that increasingly experts don’t share basic assumptions with the public.
Prop 16, which would repeal the affirmative action ban in California, was pushed heavily by educational experts. It failed by a large margin. Here is how the Center for New American Progress, a think tank (whose CEO will lead Biden’s OMB), responded: https://www.americanprogress.org/issues/education-postsecond...
This is one assertion they made to support trying again with different poll wording:
> Moreover, older voters who remember the 1996 ban may hold the misleading view that the law was a “prohibition against discrimination,” as the law’s original backers framed it in this way.
This is just a play on the fact that your average person defines “discrimination” quite literally (the majority of every racial group say race shouldn’t be even a small factor in college admissions). But educational experts often have a different view of “discrimination.” Thus it’s “misleading,” the article asserts, to say that the existing provision that bans disparate treatment by race is a ban on “discrimination.”
When experts change the meaning of commonly understood words to get a different polling result, do you think that creates trust?
(FWIW, I supported repealing the ban in California initially. But when you ask people “do you want to give some people more resources, preferential treatment, etc., in order to erase historic disparities” they say “no.” I want to do that, within reason. But it’s a dog that won’t hunt. So experts keep playing with the language, coming up with terms like “equity.” And thats made me very skeptical of trusting educational experts with these new powers.)
Basically, forget universal principles (I.e. “abstract high minded-ness”) and 230 years of history and experience. Immediately change the rules based on unproven science in response to the first crisis.
This would amount to nothing more than a government takeover of speech by experts. Maybe the experts can be trusted, maybe they can’t be. Maybe they can overcome their biases, maybe they cannot. The evidence is not good. Even in the era of Trump’s outrageous obvious falsehoods, the fact checkers wandered into quite debatable territory. And especially when that happened; different speakers were not treated alike.
There is a reason only the most obvious falsehoods are outside the scope of the first amendment. Anything that requires deductive reasoning from evidence almost always bakes in assumptions and ideology. And there is a free market in people having speech that is based on different assumptions and different ideology.
It was not unknown in the framers’ day that people would be duped with falsehoods and into mass delusion. They chose to give a broad protection to free speech even in face of that knowledge.
Had rules like this been in place during the 1950s social liberalism wouldn’t have happened. We already skirted the line with things like Hollywood’s black list, which suppressed the real military threat of communism, and also anything that could ignite social change. Back then, the first amendment protected that censorship from becoming government censorship. If it had, the prospects are shocking. Do you really think a government that orchestrated the McCarthy hearings could launder any ban of “falsehoods” through a panel of duly appointed experts?
In the early to mid 20th century, when we were a technologically advanced society with real scientists, experts believed in things like eugenics. Have our experts finally gotten all the right answers? Are we truly at the end of history?
Sunstein is a brilliant guy, but his basic ideology is rule by experts, and this is exactly what it is. Maybe that idea has merit. But it’s not compatible with the first amendment.