Mis and Dis and Mal
Disinformation experts blast Trump’s executive order on government censorship
One of President Donald Trump’s first actions as he returned to the Oval Office on Monday was signing an executive order aimed at “restoring freedom of speech and ending federal censorship” of US citizens.
The order bans federal officials from any conduct that “would unconstitutionally abridge the free speech of any American citizen” and instructs the attorney general to investigate if the Biden administration engaged in efforts to censor Americans.
“Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate,” the order states.
Right-wing media figures and some Republicans in Congress have for years decried what they claim are efforts by Democrats and technology platforms to censor their speech online, especially around the Covid-19 pandemic and elections. The Supreme Court ruled last year the US government can contact social media companies about mis- and disinformation swirling on their platforms, handing the Biden administration a major victory.
Are lies protected free speech? Or are they just lies?
Is perjury a crime? Or is it just free speech?
Is libel a thing? Or is it just free speech the target doesn’t like?
Not sure if rhetorical …
It’s always been my understanding that lies can be protected under free speech unless they cause harm or fall into unprotected categories such as defamation, fraud, or incitement to violence. Otherwise we couldn’t even have typical marketing puffery like “best flapjacks this side of the Mississippi”. Perjury is a specific exception to the general freedom, as lying under oath undermines the judicial process. Libel falls under the aforementioned defamation exception.
Nullius, Ken White has written extensively and authoritatively (well, at least as much as one can with an increasingly ideologically driven SCOTUS) about free speech and where lies and misinformation sit in the debate. he’s also discussed the exceptions and what their scope and limits are. He also writes quite well, so it’s very accessible.
The EO referenced above is performative. No free speech was prevented by the Government. The Government exercised its own free speech to say ‘that appears to be wrong because.’ More speech is not censorship.
Hi, everyone!
I’m not exactly a scholar of law (currently, a struggling English major — returned to school this semester), but I would think that arguing that lies are an important part of free speech that should go unchallenged kind of undoes whatever disingenuous objections Trumpeteer/“MAGA” types have to modern trans ideology. You can’t argue in one breath that it’s okay for you to lie about easily disprovable things that can be labeled misleadingly false by “fact-checkers” while you complain about “woke” ‘trans and non-binary’ activists lying about basic scientific facts to children and the rest of the public. If activists duping children and psychologically vulnerable young adults into harming themselves is not free speech, possibly like how yelling fire in a not-burning building isn’t, so isn’t spreading blatant lies about other things via the media. But, you know, IOKIYAR or IOKIYAT — it’s okay if you’re a Republican, and if you’re Trump, you practically have a permanent Get Out of Jail Free card thanks to the Supreme Court. Maybe a real lawyer can set me straight — I’ve never been great with logic exercises.
Well yes, you ended up where I was going to go – “you can if you’re Trump.” Consistency isn’t one of his talents.
Thank you, Rob. Ken White, or Popehat, is an excellent, and often a wickedly funny, writer, and he is very good indeed about free speech Here is a paragraph from a wonderful piece on The Popehat Report entitled: “In Which I Repent On Free Speech Culture: I Apologize To Elon Musk For Infringing On His Speech
“It took better men — titans of America, really — to show me. Elon Musk, billionaire scientific genius and social philosopher and equestrian innovator has explained it. As it was necessary to destroy Bến Tre to save it, it’s necessary to sue journalists for criticizing the way you exercise freedom of speech, to protect your right to utter that speech without anyone reacting negatively. It’s simple, and pure, like a koan. I am indebted, too, to Texas Attorney General Ken Paxton — the stalwart of the speech-defending Federalist Society — who showed me that it’s necessary to use the apparatus of government to protect free speech by criminally investigating people who oppose and suppress free speech by criticizing how someone else uses it.”
There is also this book by Stanley Fish, ‘There’s No Such Thing As Free Speech, and It’s a Good Thing, Too,’ which attacks simplistic notions about the matter, and which would certainly have had, had it been written recently, no truck with the definition of ‘free speech’ apparent in the attitude of Musk & his followers: ‘I can say what I like, but if you criticise what I say, I’ll ban you you or sue you.”
Musk and his grovelling acolytes are very thin-skinned, but when it comes to their blatant hypocrisy, I don’t think they even notice it. Even if they did, they do not care about it. They are not, in fact, interested in free speech.
@Ophelia:
Or, phrasing that alternatively: “Self-appointed disinformation “experts” blast Trump …”.
Yes, since otherwise you hand way too much power to whoever gets to decide whether something is a “lie”.
In order to do that, one needs to adjudicate on the truth of the matter and on the state-of-mind of the speaker. It’s a really bad idea to give a government censor that power. If someone they don’t like makes an honest claim on a contentious matter, the censor can just declare it a “lie” and censor it.
(There may be times when such adjudication is necessary, such as in a criminal or civil-law trial, but this should not apply to public-square dialogue.)
@Rob:
Followed by: “… nice little social-media platform you have there, pity if someone were to come along and regulate it …”.
No, we should not have government bodies making in-private “suggestions” to social-media companies that they might like to censor content that the government body regards as “inconvenient”.
Even Zuckerberg has repented on this point. I laud this EO.
So corporations and political hacks should be free to market quack remedies for lethal diseases, to say that vaccines will kill you, to say that raw milk is much safer than pasteurized, to swear up and down that cigarettes are harmless, to swear up and down that Fentanyl is not addictive and is safe as vitamins?
@Ophelia:
Corporations? No. I don’t agree with the idea that corporations are “persons” that should have “free speech” rights, and I consider that American jurisprudence went wrong when it held that non-people entities such as corporations have rights pertaining to “people”, a lot of bad consequences have come from that (as I see it). We rightly regulate corporations in ways that we don’t regulate individual people. I think that we should indeed have “honesty in advertising” laws when it comes to corporations, not a free-for-all.
Political hacks (and random people)? Yes, sadly, they should be free to say such things, in the sense that the government should not prohibit it. Again, the rationale is that giving a censor power to rule on whether these things are true or not will give that censor power that they will then misuse.
Just to add, reflecting on Rob’s comment:
I don’t think that the government should have “free speech” rights either. The whole point of the Bill of Rights was to protect people from the government, not to grant rights to the government.
But
The first amendment already does that, because its whole thing is about barring the federal government abridging the free speech of any
American citizenperson in America.Maybe the silly Department Of Government Efficiency is not as useless as it seemed at first – it should get rid of this apparent Department of Redundancy Department.
@ 8 – Yeah well sadly I disagree.
@Ophelia:
Would you still disagree if the oversight panel that dictated what could and could not be said were stuffed full of Trump appointees?
Which is actually what would be happening, if there were indeed such a body that could decide whether people are allowed to say “vaccines will kill you” or whatever.
There would have already been an executive order, sacking the previous panel, and replacing it with a Trump cronies, and the panel would now be chaired by JFK Jr.
And it wouldn’t be “vaccines will kill you” that JFK Jr would strike down, it would be “vaccines are safe and effective” that got labelled “disinformation” and thus censored.
The first test for government power is not to ask what an administration you agree with would do with it. An authority that always correctly judges truth and falsehood censors only falsehood. Anything short of that impossible standard, however, necessarily censors truth.
Thus, the question is not whether one trusts the current regime but whether one trusts all possible regimes. A power that can silence dissenting voices will invariably be wielded by those whose judgment is flawed, biased, or corrupt. History provides ample evidence: the same mechanisms used to suppress lies have, in other hands, been used to suppress inconvenient truths. The risk, therefore, is not hypothetical—it is inevitable. To grant government the power to arbitrate speech is to gamble not on its current wisdom but on the perpetual infallibility of its successors—a wager no rational person should accept.
I’m saying nothing new here, of course. It used to be the common liberal view, the kind of thing one would read in John Stuart Mill.
Linda Binda:
That’s not really the argument, though. Rather, it’s that lies are an important part of free speech that should not be prohibited. There’s a rather significant distinction between the two. The first, as you presented it, is a restriction on speech. The second opens the door of debate. It allows ideas that are true but thought false to get their hearing and ideas that are false but thought true to be debunked.
FIRE (The Foundation for Individual Rights and Expression) has good articles on the subject.
I think I have to agree with Coel and Nullius on this one. When I look at the sorts of speech that were considered wrong, and dangerous, in the past, such as the jailing of Eugene Debs and the jailing and other awful treatment suffered by women asking for the vote, I think we need to be extremely careful about what restrictions we put on speech.
The problem with the free speech issue recently is that too many people (on both sides – right and left) believe their free speech is impaired if someone challenges them. They believe a simple challenge to their ideology is a vicious attack. I know I don’t have to tell anyone here that; it’s a common topic of discussion. But if you allow the suppression of inaccurate speech, then what gets suppressed depends on who gets to decide it’s inaccurate. The same with ‘dangerous’ speech.
Free speech is a nebulous concept to begin with; most people understand it well enough when they are speaking, but fail to grasp that it applies to the other person, as well, even if that person is saying something they don’t like. Just as Christians should have the right to speak out in criticism of Islam (or atheism), and vice versa, so should everyone have the right to speak. I think there might be some gray area when you get into actual calls for violence, but we do already have laws to deal with that…though with Trump ending up back in the White House instead of in jail, it would appear those laws aren’t working very well these days (if they ever did).
iknklast #15
Count me in as well. As Christopher Hitchens expressed more eloquently than most, the problem of “who gets to decide” is already a deal breaker in its own right. Furthermore:
If you can’t even be bothered to listen to what your opponents have to say, they might as well be right for all you know. As others have pointed out, it is not enough to let your enemy’s enemy tell you why your enemy is wrong. To judge an idea or argument on its merits, you need to listen to the strongest, most credible version of the idea as expressed by the people who actually believe in it.
Even if they are mostly wrong, some of their arguments may still be onto something. As I keep saying, the world is not split into those who are right about everything and those who are wrong about everything.
Even if they really are as awful and wrong as you suspect, part of being an informed citizen, and a necessary precondition for making informed decisions, is knowing what other people think.
Unless you are prepared to put your beliefs and opinions to the test of exposing them to opposing views, you will have less reason to trust your own ideas.
The people you really need to worry about are pretty much without exception conspiracy theorists who already think “They” are engaged in a massive cover-up to suppress the truth. Silencing their views only plays into their paranoid delusions and boosts their credibility in the eyes of their followers.
A climate of censorship (broadly speaking, not limited to laws and prohibitions) has a disastrous effect on public trust in academia, journalism etc.. People are understandably thinking “Well of course they’d say that! Anyone who tried to argue otherwise would suffer the same fate as Kathleen Stock. Even if the dissenters are right, they would never tell me, so why should I trust them on anything?”
Etc. etc.
As usual the one argument you will not find on my list is that the truth always (or even usually) prevails in a free “marketplace of ideas”. As I keep saying, judging evidence and arguments on their merits is not a straightforward matter, but something that requires a great deal of experience and accumulated preknowledge in its own right, as well as critical thinking skills that often require us to override our deeply ingrained biases, intuitions, and sometimes even “common sense”. The strongest indicators of truth vs. falsehood, scientifically speaking, rarely coincide with what seems most subjectively persuasive to a lay audience. Playing by the rules of science, critical thinking, intellectual honesty, etc. is nothing if not limiting, whereas ideological agenda-pushers are free to say whatever it takes to impress people.
In the absence of the necessary preknowledge, critical thinking skills etc. all your average layperson can be expected to get out of the kind of “rational debate” that believers in the “marketplace of ideas” like to imagine is that one side comes across as far more confident and assertive, more aggressive etc. while the other side is forced to use conservative language, talk about “confidence intervals”, and “error bars”, and what the data “seems to indicate”, acknowledge doubt and uncertainty, and introduce caveats, conditions and qualifiers at every turn. No need to specify which side is the scientific one, and no need to specify which side your average layperson is going to find most convincing.
It isn’t always the cream that rises to the top; scum does, too, as anyone who has ever visited (or worked in) a sewage treatment plant will know.
The problem with free-speech purism (and the altogether ridiculous concept of a free ‘marketplace’ of ideas) is that it wholly fails to take into account what an old friend of mine, C.H.Sisson, called the ‘vulgar exterior of doing and intriguing – the ordinary behaviour of men’; or the question of power and who possesses it, the question of the nature of the state, and of good government. To claim that all governments are necessarily tyrannical is absurd. I should prefer to live in a democracy – whatever its faults, and they are usually many – where there can be some accountability, and not in a tyranny of whatever nature.
Lies and disinformation are destructive of society and of democracy (as we are seeing now), and it is no good pretending otherwise. I suggest that people look up the ‘paradox of tolerance’ that Karl Popper, the great philosopher of science, wrote of in his book, ‘The Open Society & Its Enemies’. And also read Rawls on the matter.
Tim
I don’t see anyone arguing that ”all governments are necessarily tyrannical”. As Nullius points out (#13) it’s more that not all governments are necessarily liberal and democratic, and no government is ever infallible, which is why governments should not be in the business of deciding who gets to say what (with the usual caveats about libel, incitements to violence etc.). By almost any objectively quantifable metric, the last 15 years or so have been the worst period for free speech and accademic freedom in the Western world since WW2, far surpassing the Red Scare and the McCarthy era. It hasn’t stopped the decline of liberal democracy or the rise of Trump. Indeed, I strongly suspect it’s had the opposite effect.
Bjarte
I am in no way taking issue with what Nullius said, with which I largely agree. Of course, no governmernt is infallible. I. was simply raising the question as to what should be done in the case of a genuine assault on democracy. It has been destroyed in Hungary by Orban, and Hungarian friends of mine have got out of the country as a result.
No doubt I should have made myself clearer, but the idea that ‘all governments are tyrannical’ is strong on the libertarian right, as it was in Weimar Germany. I think of Ernst Jünger, with whom I was fascinated for a time, and in one of his prewar assaults on democracy brought in Icelandic sagas, and sought to reduce politics to the authenticity of a father & his sons defending their homestead, as in Brennu-Njáls saga – hardly conducive to any serious discussion about what good governance might be in a complex society, and what might be done to make it better; and his and similar attitudes on the right (Carl Schmitt’s & Heidegger’s, for example), coupled with the craven willingness of democratic politicians to pander to a ‘strong’ man (the sort of weakness we see today in the Republican Party) led directly to the triumph of Hitler.
The question Popper raised in ’The Open Society & Its Enemies’ (which he called his ‘war-work’ – it was written in exile from his native Austria in New Zealand) was how ’tolerant’ we should be in the face of ‘intolerance’, if the latter was going to bring about an intolerant society. This intolerance may of course be of the left or the right. I think it is a question worth considering. I bring in Rawls, because he said that even intolerant opinions that were designed to bring about the destruction of democratic government should be allowed, but that if democracy is genuinely threatened, then it, or we, should act to protect itself, and ourselves – as it was protected by the people in the battle of Cable Street, where Moseley & his Blackshirts were stopped; and thereafter the British Union of Fascists ceased to have the potency it once had had. Perhaps I should add that my own grandmother, who loved me and whom I loved, had been a supporter of the British Union of Fascists until, as she told me not long before her death, “Moseley got too close to the Germans”.
The ‘market-place of ideas’ is a vacuous concept, and a dangerous one, since it depends on the fond assumption that the ‘good ideas’ will win out in the end. History, and the present, teach us that this is wholly untrue.
The cess-pit that now is Twitter, with Bezos’s whatever it is called following its path, is highly dangerous. In this connexion, the branding of any attempt by the government to request (not force) platforms like Twitter to take down or correct lies and disinformation, since they will lead to people being harmed, as ‘censorship’, is despicable and dangerous.