The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

FREE SPEECH

Journal of Free Speech Law: "Fake News, Lies, and Other Familiar Problems," by Prof. Sam Lebovic

The fifth of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

EUGENE VOLOKH | 3.31.2024 12:54 PM

The article is here; the Introduction:

In the last months of 1919, a year in which a pandemic had killed hundreds of thousands and the nation's cities had been marred by racial pogroms and mob violence, Walter Lippmann reflected on the state of the American public sphere. "[A] nation," he complained, "easily acts like a crowd. Under the influence of headlines and panicky print, the contagion of unreason can easily spread through a settled community." The press was awash in fictions and propaganda; Americans had "cease[d] to respond to truths, and respond simply to opinions." There wasn't even a way to make sure people didn't deliberately and cynically lie to the public: "[If] I lie to a million readers in a matter involving war and peace, I can lie my head off, and, if I choose the right series of lies, be entirely irresponsible." The public was acting not in response to its objective social reality, but to what Lippmann dubbed a "pseudo-environment of reports, rumors and guesses." How, he wondered, could democracy function in such an environment?

Over the coming years, as Lippmann sought to answer this question, he produced a series of books that constitute perhaps the most serious effort to think through the problems, possibilities, and limits of public opinion in modern American democracy. In particular, he developed two key insights about democratic theory that can help us today, as another generation of Americans looks on their public sphere—awash in fake news, rumor, and cynical lying—with disdain and despair.

The first was his rejection of what he dubbed the myth of the "omnicompetent citizen." Americans, Lippmann argued, cling to "the intolerable and unworkable fiction that each of us must acquire a competent opinion about all public affairs." That simply wasn't possible. American society was too complex, too vast, too differentiated. The divisions of labor were too deep, social life too confusing—a kaleidoscope of shifting experiences. And the tempo and sweep of political life, sliding from crisis to crisis, from issue to issue, made it impossible for the citizen to catch their breath. How could anyone, in the spare moments between work and leisure and family, be expected to come to a considered understanding of international trade policy one night, a labor strike the next, and a public health scandal the day after?

Inevitably, Lippmann pointed out, the individual had to rely on others to help them make sense of what was going on, they had to form their opinions in a social and political environment. Yet no one had really grappled with what this meant for the operation of democracy because people continued to presume that opinions were formed and expressed by self-sufficient individuals. The result was a tendency to think about the problems of public opinion as a problem of individual rights, of the regulations and prohibitions impinging on the way individuals exchanged their ideas. And that meant that "democrats have treated the problem of making public opinions as a problem in civil liberties." They were focused on arguing about whether individuals had the right to express certain ideas or not, assuming that public opinion would emerge out of a marketplace of competing arguments.

But in his second important insight, Lippmann pointed out that this was the wrong way entirely to think about the problem of public opinion. In arguing about the "privileges and immunities of opinion," he explained, "we were missing the point and trying to make bricks without straw." What really mattered was the "stream of news" upon which opinions were based. "In going behind opinion to the information which it exploits, and in making the validity of news our ideal, we shall be fighting the battle where it is really being fought." That meant thinking not about what any one individual believed or was saying, nor even about what rights should be afforded to any class of political expression, but in thinking about how the society, as a whole, was arranging the political economy of its information.

In this essay, I want to use these two points as a guide to thinking about the best way to navigate the contemporary crises of the American public sphere. Our anxieties about the spread of fake news—of lies about stolen elections and harmful vaccines and deep state conspiracies—continue to take the form of anxieties about the way that particular forms of expressive (mis)conduct influence the (in)competence of individual citizens. As a result, the most commonly proposed remedies—particularly the temptation to regulate lies—focus on the privileges and immunities of opinion. In short, seeing fake news as an illegitimate cancerous growth, we seek to cut it out of the body politic.

Drawing on Lippmann's analysis, I will argue that this is the wrong way to think about the very real problems of American democratic life. The argument will proceed in three parts. In part one, inspired by Lippmann's reminder that lying has been a problem for over a century, I compare the lies of a conservative political faction in the present moment with lies of their ancestors in the era of McCarthy and Massive Resistance. The success of angry, conspiratorial, racist lying even in the very different media environment of the post-WWII "golden era," I suggest, helps us identify the lies of the present moment not as an unprecedented epistemic crisis, but as an expression of a conservative political formation in American political life.

In part two, I argue that this political formation is benefiting from a broader crisis in the information economy of the U.S. Drawing on Lippmann's distinction between the "stream of news" and the politics of expression, I show that the collapse of journalism as a profession has led to the underproduction of information in the polity and favored the politics of outrageous expression—both of which have benefited the conservative political formation in its effort to win elections by lying. Having developed this understanding of the contemporary problem, part three considers solutions to the current epidemic of lying.

Following Lippmann's reform suggestions from 1919, it argues that the key task is a broader politics of democratic revitalization, which will include new efforts to improve the "stream of news" by encouraging the production of information in new institutions devoted to that task. Such reform efforts should be contrasted to efforts to deal with lies by seeking to eradicate or counter them directly in the discourse, whether by censorship, civic education, or mandated counterspeech. By focusing on the politics of opinion rather than information, reform efforts centered on speech law and speech acts risk exacerbating, rather than ameliorating, the crises of American democracy.