Falsehoods and the First Amendment (2019)
&gt; 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.<p>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.<p>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.<p>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.<p>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.<p>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?<p>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?<p>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.