The need for rights to protect public facts against baseless claims
The current NY Times article on “Lawsuits Take the Lead in Fight Against Disinformation” makes me think its about time to enforce protections for certain kinds of speech in our democratic society. The article in question covers the legal fallout against abusive, anti-democratic claims of voter fraud, in a spate of cases by firms that were harmed by such accusations. But current legal remedies are limited. Why should we have to wait until after the damage is done for false information to be acted upon?
Besides the political debacle we just experienced around the past presidential election, this strikes a professional chord for me, when doing statistical analysis. I approach quantitative statistical analysis as a subtle art, to tease truth that will stand up to scrutiny out of raw, ragged facts. It’s hard to get right. There needs to be a better remedy to protect such individuals and facts they are duty-bound to reveal in the face of factions that will trample truth with baseless propaganda.
My heart goes out, in the recent case of Rebekah Jones, a data scientist who defied the Florida Department of Public Health’s blatant bullying to doctor COVID statistics. Her defiance in the name of public safety has led to her arrest.
But what about preserving free speech you may ask? How can this be done without tarnishing one of the cornerstones of democracy? The place to start is with the fundamentals. Publishing information “with reckless disregard for the truth” isn’t a First Amendment right. The difficult question is what can we do about it without collateral damage to our current legal framework. Specifically the government avoids being an arbiter of truth, but leaves this instead to be threshed out in the marketplace of ideas. To quote Grynbaum in today’s Times, in discussing Roberta Kaplan’s defense of Mary Trump:
Some First Amendment lawyers say that an axiom — the best antidote to bad speech is more speech — may no longer apply in a media landscape where misinformation can flood public discourse via countless channels…
The current remedies against false information are tightly defined, as well they should be. There exists a legal case if one can show actual damage, as the current case being brought by Smartmatic Voting Machines against right wing media, for harming its business. The problem is that litigation as a remedy is slow, and after the fact. Of course there are also injunctions about clear and present danger, about statements that incite violence. Again until the clamor on social media clearly reached this level, social platforms didn’t feel they were on firm legal ground to restrict content. The bar should be lowered to restrict clearly baseless claims with such predictable consequences.
Those who propagandize with false information should not be give the presumptive right that their claims have value. The point of propaganda is to accumulate political power. Attempting to co-opt the media should not be confused with “participating in the marketplace of ideas.”
Similarly media should have better protected rights to not be abused as forums for false information, and public officials whose efforts would be harmed should have rights to label dissident claims as baseless. Anyone would still be free to say or publish what they want, but they would have no right to insist that spewing nonsense would be given a forum. This is just an incremental change, from a retrospective view, to one where “facts have rights” before obvious damages occur with public consequences.
The novelty would be to give teeth to calling out “baselessness” — a counterclaim that has no facts to support it. Current examples of baseless claims are legion. That there was widespread voter fraud. That common sanitary and public health precautions against spread of disease are unnecessary or harmful. That projections about epidemic spread are false. That human activity does not cause climate change. And so on —the abuse of information which is necessary for the future of a safe society. The hard question is who gets to say a claim is obviously false information? I wouldn’t rely on the courts. We already have numerous non-political fact-checking groups who tally these. The change I propose would be to empower public (non-political, scientific) officials, presumably by certain panels or bodies — those who the public rely on to be informed — to make this determination — of no credible evidence to the counterclaim. Such presumption of “clear and future danger” would carry weight similar to the “clear and present danger” test of allowed speech. Our science today is good enough to predict future danger. Those media that have policies to not carry baseless claims would have rights — similar to the current “Section 230” safe harbor provisions, to remove them without the presumption of violating free speech. Those media that decided to carry such claims would have to deal with the presumption that they are trafficking in harm.
Our legal legacy of relying after the fact, on remedies to damages is a good thing, but what if the “damages” are the destruction of the society that should enforce them? What will be the remedy then?
