- - Monday, December 5, 2016

Fake news is an old story.

It has featured in domestic politics and international affairs since the beginning of time.

The British famously defined an ambassador as an “honest man sent abroad to lie for the good of his country.”

A prime mission of the Central Intelligence Agency is to spread false news to influence the outcome of foreign elections. The very first CIA covert action manipulated the 1948 Italian elections. By its own later admissions to the House Select Committee on Intelligence, the agency forged documents and letters purported to come from the Communist Party of Italy (PCI) to besmirch its reputation and discredit its leaders; funded anonymous books and magazine articles vividly detailing alleged communist activities in Eastern Europe and the Soviet Union; and, published pamphlets exposing PCI candidates’ sex and personal lives and insinuating they harbored fascist or anti-church sympathies.

The CIA intervened with multiple covert actions costing between $800,000 and $1 million in Chile’s 1970 presidential election with the hope of derailing Marxist candidate Salvador Allende. The Senate Select Committee found: “Propaganda placements were achieved through subsidizing right-wing women’s and ‘civic action’ groups.”

It would thus be stunning if the Russian or Chinese intelligence services refrained from seeking to influence elections in the United States to their advantage by imitating the C.I.A.’s modus operandi abroad of spreading false news. Intelligence services do not play by Queensbury Rules.

In any event, prohibiting fake news would be problematic. Generally speaking, falsehoods and truths are both protected by the First Amendment. The United States Supreme Court explained in United States v. Alvarez (2012) that false statements may not punished unless they cause some demonstrable concrete harm, for example, fraud, defamation, or a miscarriage of justice. The Court in Alvarez invalidated a federal prohibition on lying about receiving military decorations or medals. In reliance on that precedent, the United States Court of Appeals for the Sixth Circuit in Susan B. Anthony List v. Driehaus voided an Ohio statute prohibiting malicious falsehoods in political campaigns for the purpose of influencing the outcomes.

Justice Louis Brandeis lectured in Whitney v. California (1927) that the customary remedy for bad speech or demagoguery is more speech or superior arguments, not enforced silence. He largely echoed John Milton’s Areopagitica: “Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Brandeis and Milton were too rosy. Mark Twain was more right than wrong in quipping that, “A lie can travel halfway around the world while the truth is putting on its shoes.”

But prohibiting “fake” or “false” news would be a cure worse than the disease, i.e., censorship by other means. The government cannot be trusted with distinguishing fake from genuine news because it has ulterior motives. News the government dislikes would be conflated with fakery, and news the government approved would be conflated with truthfulness. Private businesses like Facebook cannot be trusted with distinguishing fake from genuine news because its overriding mission is to make money and to win popularity, not to spread truth. It would suppress news that risked injury to its reputation or profits but leave news that did the opposite undisturbed.

The entire concept of fake news is troublesome. Candidates for public office routinely make statements divorced from truth. Was it “fake” news for 1968 presidential candidate Richard Nixon to maintain he had a “secret plan” to end the Vietnam War when he had no such thing? Is it “fake” news when candidates make fanciful promises to create millions of new jobs, cut taxes, balance the budget, and slash government spending which carry the plausibility of King Canute’s stopping the tides? The lion’s share of campaign speeches typically dwell outside the domain of credibility. Are they all “fake” news? They seek to persuade the audience to believe in a future they know is impossible.

Justice Oliver Wendell Holmes captured the optimal approach to fake news in his famous dissenting opinion in Abrams v. United States (1919):

“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market … That at any rate is the theory of our Constitution.”

The solution is not perfect. But it is better than all the alternatives.

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