“Liars: Falsehoods and Free Speech in the Age of Deception” by Cass B. Sunstein

The Problem of Lies and Conspiracy Theories in the Media

I recently finished reading Liars: Falsehoods and Free Speech in the Age of Deception by Cass B. Sunstein. The topic is interesting and timely. The author appears to be motivated by the harmful effects of blatantly false and deceptive speech. It is hard to disagree with the author on the existence of a problem. The use of social media, and even the mainstream press, to spread conspiracy theories and toxic lies about vaccines and elections is disheartening. It is especially disheartening that foreign governments are, also, using this tactic to manipulate Americans.

The Solution: Sunstein’s View

The question is what should we, as a society, do about it. The author applauds some recent efforts by social media companies to try to set and enforce some standards. I have to agree with him, but I wonder how long it will last. The problem is that the business model for social media depends on “eyes on the page” to sell advertising. It turns out that outrageous lies and conspiracy theories are really good at catching and holding peoples attention.

It makes sense to view the liability of social media companies as similar to that of mainstream media. In deciding to turn down some speech, they have left behind the notion that they are merely a platform. If a social media company can reject some content, they are implicitly lending credibility to those they allow to use the platform.

The author also suggests that the standards for asserting libel should be changed or should revert to older interpretations of the law. He notes that the notion that a public figure must prove “malice” in order to succeed in pressing a libel claim is of fairly recent origins (NY Times v. Sullivan, 1964). He argues for an approach which would weigh the degree of harm and the extent to which counter speech may be ineffective.

The author values freedom of speech but he also values truth in the public domain. Put simply, he is arguing for somewhat less freedom of speech, in return for somewhat more truth. He seems to think we can achieve this with the state playing a more muscular role in protecting the public domain from harmful lies and conspiracy theories. Unfortunately, he is not at all clear about how to do that without permitting the state to favor one point of view over another.

We can all create some examples where the lies are so outrageous and harmful that we would not be uncomfortable in allowing regulation of that speech. But in most of those cases, counter speech would be just as effective. In those cases where counter speech might not be effective, such as in the the middle of a pandemic where speed of response is important, we might even agree with the author.

Sadly, one cannot write laws that would only cover those cases. Where is the line between a lie and something that the majority chooses to believe is false. He seems to be saying let the courts decide, but the courts are a part of the state. Judges are elected or appointed by politicians. Juries are drawn from the majority and, therefore, reflect the biases of the majority.

My Perspective

My own feeling is that we should hold social media to the same standards that we hold mainstream media. I also agree with the author that we should make it a bit easier for public figures to bring libel claims. But not too much easier. However, it is particularly hard to think about how social media could be held accountable without essentially shutting down political speech on social media.

Finally, the best case against allowing the state to regulate main stream and social media is being made in Russia. Independent mainstream media outlets in Russia have been silenced. The only honest source of information for the Russian people about Putin’s war against Ukraine might have been through social media. But Putin has also succeeded in shutting down social media on the basis that it spreads “fake news.”I think before we jump to “it can’t happen here,” we should consider the history of the last few years.

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