In 1936, Oswald Mosley, Britain’s Mussolini-in-waiting, released a question-and-answer book that explained what a Fascist Blighty might look like. Freedom of the press? Fleet Street would “not be free to tell lies.”
Some 80 years on, German chancellor Angela Merkel, infuriated by criticism of her immigration policy (and, rather less so, by Russian disinformation), endorsed a new law, the catchily named Netzwerkdurchsetzungsgesetz, under which social-media companies must take down posts that constitute “manifestly unlawful . . . hate speech” and “fake news” from their sites within 24 hours of a complaint. Failure to do so can result in a fine of up to 50 million euros. Fake news is criminally fake if it amounts, say, to an insult, malicious gossip, or defamation — including defamation of a religion or ideology — sufficiently serious to contravene German law.
Combine the potential size of the fine with offenses that lend themselves to flexible interpretation (much like that “manifestly”) and it’s easy to see that Berlin intended to scare social-media companies into an approach to censorship that goes far further than the letter of the law, a ploy that appears to be working. The government wanted to shut down talk that was not necessarily illegal but — after Merkel flung open her country’s doors in the summer of 2015 — uncomfortably unorthodox. The mainstream media had enthusiastically echoed the chancellor’s Willkommenskultur narrative of kindly Germans cheerfully greeting the migrants, but establishment unanimity was not enough for the instinctively authoritarian Merkel. Her less “welcoming” compatriots had found an audience on social media. That would not do.
Others have taken note. Singapore, no haven of free speech, is taking aim at “deliberate online falsehoods.” Malaysia has criminalized “news, information, data and reports which is or are wholly or partly false.” (Intent seems to be irrelevant.) Russian lawmakers, immune as usual to irony, have proposed their own laws against fake news.
Brussels is on the case — of course it is — urging social-media companies to sign up for a voluntary code of conduct to combat what the European Commission refers to as “verifiably false or misleading information . . . [that is] created, presented and disseminated for economic gain or to intentionally deceive the public, and [that] may cause public harm.” That word “verifiably” has to do a great deal of heavy lifting, and, as for “misleading,” well . . .
Some of Brussels’s proposals, such as more transparency about sponsored commentary, are sensible. Others could conceivably reflect an even more cynical view of the European public’s credulousness than that displayed by the Kremlin. It takes only an elementary understanding of how politics works to grasp that the call for EU member-states “to scale up their support of quality journalism” will be used to justify lucrative handouts for journalism that toes the party line.
Another recommendation, “enhancing media literacy,” isn’t an invitation to corruption, but if the enhancement is to be anything more than a lesson or two in applied skepticism (no bad thing), instruction on how to “read” media will just as likely — thank you, Michel Foucault — enable fake news as do the opposite. Equally, turning to “an independent European network of fact-checkers” is a less-than-reassuring idea: Fact-checkers have all too frequently shown themselves prone to bias. Quis custodiet ipsos custodes? was a good question 2,000 years ago, and it’s a good question now, but it’s not one that worries many of those leading the charge against fake news.
Meanwhile, France’s president, Emmanuel Macron, is pushing a law to battle fake news that includes allowing politicians to complain to a judge about the spreading of supposedly false information online during or shortly before an election. The judge has 48 hours to respond and can, under certain circumstances, block the offending item, a power that — call me a cynic — could, just possibly, be abused. Fake news, Macron told the U.S. Congress in April, is a “virus,” an attack on the spirit of democracy: “Without reason, without truth, there is no real democracy, because democracy is about true choices and rational decisions.” That prettily complimentary, pretty delusional description (take your pick) leaves open the question as to who is to decide what is true — Quis custodiet? again — and where reason is to be found. The madness of crowds is a perennial risk, but a ruling caste convinced that it has all the answers can be more harmful still.
Macron’s words contained the seed of the suggestion that if the electorate votes on a basis its betters find to be flawed, the result is not “really” democratic. To follow that logic through, should such a result be allowed to stand? Macron, it should be remembered, is one of those now steering the EU, an institution with a tradition of either condemning or ignoring electorates that have voted the “wrong” way, or, for that matter, nudging them back to the polling booth for a do-over.
There is no reason for any complacency here in America. The First Amendment’s protections have never been absolute. While they have been extended a long way, that process can go into reverse. When intellectual fashions change, judicial precedent can be more elastic than is often assumed. And intellectual fashions have changed. The assault on free speech has long since burst out of the academy and, somewhat paradoxically, has been given extra heft by the ubiquity and indispensability of social media, private terrain where the First Amendment has very little application.
On Facebook, on Twitter, and elsewhere, the apparatchiks of Silicon Valley’s new class rule on the limits of free expression, a power they may well eventually have to share — not necessarily unhappily — with politicians who are no fonder of the wrong sort of talk than they are. Fake news could well give Washington a pretext to join in the effort to tame social-media speech. Always on the lookout for another excuse for 2016, Hillary Clinton has described fake news as a “danger that must be addressed,” and Senator Dianne Feinstein (D., Calif.) told social-media companies last fall that if they didn’t sort out the problem, “we will.”
That’s not a threat to take lightly. Social media are now an essential part of the public square. To the extent that social-media comments are policed, the approach taken — arbitrary, opaque, and (at least to a degree) biased — is, given the market power of the social-media giants, disturbing. But the alternatives are worse. What the market gives, the market can take away. What the state takes, it generally keeps. Giving the government the power directly (or indirectly, via proxies) to determine what social-media content is true — and, in some cases, to suppress that which it has decided is false — would be a menace to free speech too obvious to need explaining.
“Regular” media meanwhile would be untouched, protected, as they should be, by the First Amendment. They would also be left to promote their takes (far from monolithic, but still) on events with fewer challenges than they now face, a windfall that would be as unhealthy as it is undeserved. The First Amendment is not a guarantor of objectivity. In an age when the boundaries between reporting and opinion in newspapers, television, and radio have faded, disinformation is, to put it mildly, not confined to games played within the social-media feeds of the unwary.
When Donald Trump describes this more respectably sourced disinformation — and anything else he considers (or pretends to consider) to be disinformation — as “fake news,” he is sending a message that works on several levels. Hijacking a term that was already resonating with the public is not only a clever way of rebottling an old whine — politicians are forever grumbling about the press — but a way of making it stronger. It is not just an attack on the story, but on its source — and on what’s left of its authority. CNN? No better than Facebook.
Broadening the definition of fake news is also a subtle undermining of the argument that Trump owes his presidency to media manipulation. If anything, it carries with it the hint that he was elected despite fake news, not because of it. It may also, one day, provide a way for either Left or Right to begin the erosion of the First Amendment protections the press now enjoys. According to a Harvard-Harris poll from May of last year, two-thirds of voters believe that the mainstream media publish fake news, and that survey was by no means an outlier.
Treating the partisan dishonesty of the news media and the real (so to speak) “fake news” as, basically, the same also risks overlooking the genuine hazard that the latter may represent. For now (but only for now) its most potentially dangerous manifestation comes from the dezinformatsiya orchestrated by a Kremlin once again appreciative of how destabilizing disinformation can be — and clearly aware of how neatly such disinformation can be slipped into social media. How much influence Russian fake news (a handy scapegoat for disconcerting electoral outcomes) has really had so far can be debated, but there is no doubt that the sophistication of its targeting and the quality of its material is going to improve rapidly. The day that a computer-generated Trump makes a fake but (to the right audience) truly incendiary speech mocking, perhaps, the prophet Mohammed is not far away.
The prospect is terrifying. But so is one element in the likely response: the unleashing of censors to block this, ban that, and, presumably, fight a long Pac-Man struggle with bots as the prey. But this cyberwar would probably do more damage to what’s left of the West’s free speech than to the lies of our opponents. Fake news can be suppressed or, infinitely better, rebutted, but, as it speeds through the Web, it can travel many times around the world before the truth has time to boot up.
The Gutenberg galaxy is expanding exponentially, generating unprecedented amounts of information — true, false, and everything in between. To the extent we can trust it — Quis custodiet? — technology may help identify what is reliable and what is not (I met the other day with the CEO of a start-up using artificial intelligence to rate the reliability of those posting on social media), but technology will have to contend with psychology. Our quest for objectivity is less diligent than we like to think. We are all too ready to collaborate in our own deception. Some stories are too good not to believe, some stories are too satisfying to unpack (how many birthers were there again?), some gossip is too good not to pass on, and confirmation bias remains as seductive and reassuring as it ever was.
Skepticism will help, but too much of it — easy enough in an era when old media are regarded with suspicion and new media are difficult to process, let alone trust — can lead to a perverse gullibility. In a 1974 interview, Hannah Arendt observed that “a people that no longer can believe anything . . . is deprived not only of its capacity to act but also of its capacity to think and to judge. And with such a people you can then do what you please.”
Fake news is a challenge that the West must get right. So far, there’s little reason to expect that it will.