More and more I’m struck by the thought that we must come to a new understanding of the first amendment. We can no longer tolerate the willful spread of harmful lies. The intentional spread of malign, dangerous disinformation has to be dealt with.
It took years for Sandy Hooke parents to bring Alex Jones into a court and answer for the incredible lies he told, and profited from. Years he was able to spread those lies and to paint himself as a victim of a conspiracy to silence the “truth.” Years of continued damage before he was forced to pay a price for it. A small price, a shadow of the damage and pain he caused, and the cult of conspiracy that he enflamed.
We can no longer abide a system that makes it so difficult, most often impossible, to correct the record and to punish, aggressively and meaningfully, those who profit from fabrication, fear mongering and malign deceit.
Don’t say it’s dangerous to liberty. The status quo is far, far more dangerous.
Don’t say it can’t be done. Trump and the GOP tried to push their enormous lie and get the 2016 election overturned in a bunch of states with conservative election commissions, sympathetic to his continued presidency. They refused to do it because the penalties for that kind of perjury are serious and the truth was right there for everyone to see.
Respectfully, I think you've got it backwards. Considering all speech to be protected is the absolutist position.
And why would you think my proposal would lead to less speech? Consider:
Tucker Carleson says on his show that George Floyd died of a drug overdose and that when the "left wing media" claims he was choked to death they are lying.
Today, when we call him a liar and point to the two autopsies which determined that he was choked to death he just keeps on telling the lie. Under my proposal he would be invited to support his assertion with evidence or retract the statement if he wanted to avoid paying the fine.
There would be a public score-keeping with tangible consequences for professional pundits.
And it is not so radical. People can sue for slander and liable. Today these are difficult to sustain because you have to prove malice and it's hard to prove intent. In cases of fraud, malice is not required. A CEO lies to his shareholders, they don't care about why he did it, they only care about how much money they lost. They care about HARM, not intent.
Tucker and his friends are doing much, much more harm than financial injury to a handful of shareholders. And, in Tucker's case, if proven wrong all he'd have to do is retract his erroneous statement and not repeat it. He wouldn't even have to admit he is a rancid toad who lies for a living, he could simply claim he was mistaken.
When there were only three broadcast networks, any pundit or reporter caught spreading obvious falsehoods would have lost their job. Dan Rather lost his for falling for a honey-trap of "evidence" that Bush Jr. had skipped on this National Guard service, and that was a mistake, not something he concocted or disseminated with the knowledge that it was false.
A very few networks/news sources might still dismiss an associate for willfully bad reporting, but the entire right-wing rage machine depends upon spreading falsehoods and when challenged merely repeating them more often and more loudly.
If these entities will not police themselves, do we have any other choice?
I'm proposing that willfully spreading false information, lying as a practice, simply not be considered protected first amendment speech.
The 1A protects shouting fire in a crowded theater when there's a fire. Not to panic the patrons.
If you think masks are useless can shout it all you want. You're free to share an opinion.
When asked to back up that opinion with facts however, you should be held accountable for lying. If you're just having an argument in a forum like this, the penalty is a loss of respect and standing. If you make a living sharing the news and commenting on what that news means for a larger audience then you have a much larger responsibility and bad faith, especially a business model built on bad faith, should be penalized.
Well, once all public institutions become corrupt, all bets are off no matter what laws are on the books. If the entire communications channel is flooded with nonsense (an express tactic of the right) and all the courts are packed with wingnuts the game is over. We're not far from it now.
I'm not at all insensible to your concerns and I share them. And I'm not proposing criminal proceedings against serial liars; civil penalties only. But we need to remove First Amendment protections from established disinformation... and this is critical... as promoted by professionals, not civilian citizens. If you make a living sharing news, you have to be held to a professional standard.
~ Statements of opinion would be exempt. Only the supporting "facts" would be considered and if one chose not to supply facts in support then their opinion would have to bear that disclaimer. "Unsupported opinion."
~ Anyone could put up a bond, say $500, to challenge Hannity or Maddow or Jen Psaki on a statement (limits on how many challenges per year per person and penalties for abuse of the system). If the challenge is groundless, the bond is forfeit. If the challenge is sustained, the liar pays $500 for the first offense, or publicly retract the statement and never repeat it. If they do the penalty goes up by a factor of ten for each repetition.
~ Not for private disputes, personal grudges, etc. Solely for public policy issues under public discussion in the professional media. What is professional media? Anyone who profits from sharing or commenting on the news.
~ For challenges where the issue remains unresolved, no penalty to either party.
Messy? You bet.
But in very short order the media would become very careful about what it says and how it characterizes it's reporting. We can tolerate the mess or give up public discourse to a right wing mob.
"Who should decide? The same people who decreed that the use of saccharine was safer than cyclamates? The bishops who prosecuted Galileo? The engineers who approved the Pinto gas tank design? The executives who said that the corn sweetener formula Coke was as good as the sugar formula? The experts telling us of the weapons of mass destruction in Iraq?"
Excellent observation.
The public discussion of what's true and what's not has to happen out in the open, in the light of day. Not in closed session, not in a star chamber, not sequestered from examination or challenge. Transparency is the key.
We already know the truth of most of what's under discussion today. For instance:
The election was NOT rigged. Any public speaker, any professional news person, politician, government official or corporate flack who says otherwise should have to qualify the utterance as their own opinion and say explicitly that they have no credible evidence to support it.
If they claim to have evidence and it is shown that they were lying about that too, they should be subject to heavy fines and any public appearance should include the introduction, "known liar and disgraced spokesperson John Doe..." unless they publicly and prominently retract their claims.
In all the cases you cite above, the facts were available. These liars could have been challenged. If they had been and their reputations damaged and their pocketbooks bruised, they might not have made the claims they did.
And yet...
It is almost always possible to determine what is true and what is not, what is fact and what is speculation and what is groundless nonsense. It's very often possible to examine the sources, judge the authorities and determine what's true and what's not.
The election was NOT stolen. Vaccine's are NOT a scheme to install tracking chips in citizens. Hydroxycloroquin, bleach, lysol and UV light are NOT treatments or prophylactics for Covid 19. The veracity of these statements is discernible, AND demostrable to a very high degree of certainty.
Your example of giving your worst enemy power over you is an interesting one. It's exactly the power we've given the far right. To disrupt and undermine democracy to the point of paralysis. To label anti-fascist and anti-police brutality protesters as terrorists. To cripple the rollout of the only effective measures to fight a deadly pandemic. All this done through the willful spread of disinformation, all with utter impunity.
I think there is a larger discussion to be had, tangential to the specific issues in this case but far more critical, about whether or not the willful distribution of disinformation should be protected speech under the first amendment. The suggestion is fraught, the implementation would be difficult, but I do not see how a democracy can survive an onslaught of weaponized bullshit.
Consider: Lying in court is perjury and is not tolerated. Lying in many business contexts is considered fraud, and is punishable as such. The kind of methodical, organized, agenda-driven fear-mongering that drives our politics today is enormously corrosive to democracy and fuels the radical campaign to overthrow democracy.
That characterization of our current predicament would sound like hyperbole if we were not seeing it every day. It would sound hysterical if it were not the essential tactic used by every fascist overthrow of a democratic government in the 20th century.
Techdirt has not posted any stories submitted by pigpenpal.
We need to have a talk with the First Amendment
More and more I’m struck by the thought that we must come to a new understanding of the first amendment. We can no longer tolerate the willful spread of harmful lies. The intentional spread of malign, dangerous disinformation has to be dealt with.
It took years for Sandy Hooke parents to bring Alex Jones into a court and answer for the incredible lies he told, and profited from. Years he was able to spread those lies and to paint himself as a victim of a conspiracy to silence the “truth.” Years of continued damage before he was forced to pay a price for it. A small price, a shadow of the damage and pain he caused, and the cult of conspiracy that he enflamed.
We can no longer abide a system that makes it so difficult, most often impossible, to correct the record and to punish, aggressively and meaningfully, those who profit from fabrication, fear mongering and malign deceit.
Don’t say it’s dangerous to liberty. The status quo is far, far more dangerous.
Don’t say it can’t be done. Trump and the GOP tried to push their enormous lie and get the 2016 election overturned in a bunch of states with conservative election commissions, sympathetic to his continued presidency. They refused to do it because the penalties for that kind of perjury are serious and the truth was right there for everyone to see.
Re: Selective disinfo
Not sure what you mean. Can you be more specific?
Re: Re: Re: Re: Re: Re:
Respectfully, I think you've got it backwards. Considering all speech to be protected is the absolutist position.
And why would you think my proposal would lead to less speech? Consider:
Tucker Carleson says on his show that George Floyd died of a drug overdose and that when the "left wing media" claims he was choked to death they are lying.
Today, when we call him a liar and point to the two autopsies which determined that he was choked to death he just keeps on telling the lie. Under my proposal he would be invited to support his assertion with evidence or retract the statement if he wanted to avoid paying the fine.
There would be a public score-keeping with tangible consequences for professional pundits.
And it is not so radical. People can sue for slander and liable. Today these are difficult to sustain because you have to prove malice and it's hard to prove intent. In cases of fraud, malice is not required. A CEO lies to his shareholders, they don't care about why he did it, they only care about how much money they lost. They care about HARM, not intent.
Tucker and his friends are doing much, much more harm than financial injury to a handful of shareholders. And, in Tucker's case, if proven wrong all he'd have to do is retract his erroneous statement and not repeat it. He wouldn't even have to admit he is a rancid toad who lies for a living, he could simply claim he was mistaken.
Re: Re: Re: Re:
I'm suggesting that this is how it should work.
When there were only three broadcast networks, any pundit or reporter caught spreading obvious falsehoods would have lost their job. Dan Rather lost his for falling for a honey-trap of "evidence" that Bush Jr. had skipped on this National Guard service, and that was a mistake, not something he concocted or disseminated with the knowledge that it was false.
A very few networks/news sources might still dismiss an associate for willfully bad reporting, but the entire right-wing rage machine depends upon spreading falsehoods and when challenged merely repeating them more often and more loudly.
If these entities will not police themselves, do we have any other choice?
I'm proposing that willfully spreading false information, lying as a practice, simply not be considered protected first amendment speech.
Re: Re:
The 1A protects shouting fire in a crowded theater when there's a fire. Not to panic the patrons.
If you think masks are useless can shout it all you want. You're free to share an opinion.
When asked to back up that opinion with facts however, you should be held accountable for lying. If you're just having an argument in a forum like this, the penalty is a loss of respect and standing. If you make a living sharing the news and commenting on what that news means for a larger audience then you have a much larger responsibility and bad faith, especially a business model built on bad faith, should be penalized.
Today it is rewarded.
Re: Re: Re: Re: Larger Issue
Well, once all public institutions become corrupt, all bets are off no matter what laws are on the books. If the entire communications channel is flooded with nonsense (an express tactic of the right) and all the courts are packed with wingnuts the game is over. We're not far from it now.
I'm not at all insensible to your concerns and I share them. And I'm not proposing criminal proceedings against serial liars; civil penalties only. But we need to remove First Amendment protections from established disinformation... and this is critical... as promoted by professionals, not civilian citizens. If you make a living sharing news, you have to be held to a professional standard.
~ Statements of opinion would be exempt. Only the supporting "facts" would be considered and if one chose not to supply facts in support then their opinion would have to bear that disclaimer. "Unsupported opinion."
~ Anyone could put up a bond, say $500, to challenge Hannity or Maddow or Jen Psaki on a statement (limits on how many challenges per year per person and penalties for abuse of the system). If the challenge is groundless, the bond is forfeit. If the challenge is sustained, the liar pays $500 for the first offense, or publicly retract the statement and never repeat it. If they do the penalty goes up by a factor of ten for each repetition.
~ Not for private disputes, personal grudges, etc. Solely for public policy issues under public discussion in the professional media. What is professional media? Anyone who profits from sharing or commenting on the news.
~ For challenges where the issue remains unresolved, no penalty to either party.
Messy? You bet.
But in very short order the media would become very careful about what it says and how it characterizes it's reporting. We can tolerate the mess or give up public discourse to a right wing mob.
(untitled comment)
"Who should decide? The same people who decreed that the use of saccharine was safer than cyclamates? The bishops who prosecuted Galileo? The engineers who approved the Pinto gas tank design? The executives who said that the corn sweetener formula Coke was as good as the sugar formula? The experts telling us of the weapons of mass destruction in Iraq?"
Excellent observation.
The public discussion of what's true and what's not has to happen out in the open, in the light of day. Not in closed session, not in a star chamber, not sequestered from examination or challenge. Transparency is the key.
We already know the truth of most of what's under discussion today. For instance:
The election was NOT rigged. Any public speaker, any professional news person, politician, government official or corporate flack who says otherwise should have to qualify the utterance as their own opinion and say explicitly that they have no credible evidence to support it.
If they claim to have evidence and it is shown that they were lying about that too, they should be subject to heavy fines and any public appearance should include the introduction, "known liar and disgraced spokesperson John Doe..." unless they publicly and prominently retract their claims.
In all the cases you cite above, the facts were available. These liars could have been challenged. If they had been and their reputations damaged and their pocketbooks bruised, they might not have made the claims they did.
Re: Re: Larger Issue
And yet...
It is almost always possible to determine what is true and what is not, what is fact and what is speculation and what is groundless nonsense. It's very often possible to examine the sources, judge the authorities and determine what's true and what's not.
The election was NOT stolen. Vaccine's are NOT a scheme to install tracking chips in citizens. Hydroxycloroquin, bleach, lysol and UV light are NOT treatments or prophylactics for Covid 19. The veracity of these statements is discernible, AND demostrable to a very high degree of certainty.
Your example of giving your worst enemy power over you is an interesting one. It's exactly the power we've given the far right. To disrupt and undermine democracy to the point of paralysis. To label anti-fascist and anti-police brutality protesters as terrorists. To cripple the rollout of the only effective measures to fight a deadly pandemic. All this done through the willful spread of disinformation, all with utter impunity.
Larger Issue
I think there is a larger discussion to be had, tangential to the specific issues in this case but far more critical, about whether or not the willful distribution of disinformation should be protected speech under the first amendment. The suggestion is fraught, the implementation would be difficult, but I do not see how a democracy can survive an onslaught of weaponized bullshit.
Consider: Lying in court is perjury and is not tolerated. Lying in many business contexts is considered fraud, and is punishable as such. The kind of methodical, organized, agenda-driven fear-mongering that drives our politics today is enormously corrosive to democracy and fuels the radical campaign to overthrow democracy.
That characterization of our current predicament would sound like hyperbole if we were not seeing it every day. It would sound hysterical if it were not the essential tactic used by every fascist overthrow of a democratic government in the 20th century.
Techdirt has not posted any stories submitted by pigpenpal.
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