Truth, Accountability and Manipulation

  

As a lawyer and legal scholar for a very long time, I long struggled with the conflicts inherent in analyzing the free speech provisions of the First Amendment (extended to states under the Fourteenth Amendment) against other provisions of the constitution (which, for example, gives copyright holders a monopoly in their works), using words to commit crimes (like fraud) and “obvious reality” (like not falsely yelling “fire” in a crowded theater). Our Founding Fathers could never have envisioned a world of mass media, much less highly slanted and often flagrantly wrong social media, and the profoundly negative impact on democracy that has resulted… some of the most basic reasons the Constitution needs to be reconstructed or replaced.

But there are nasty issues in what the replacement for the wide berth of free speech might be. What are the outside parameters, the red lines that could make falsehoods truly accountable? What form would that accountability take? Civil? Criminal? The free speech provisions of the Constitution do not apply to individuals, per se; they apply only to governmental efforts to contain or limit free speech. Does that include the book bans in red states? Who would be the arbiter of those red lines? As we know, there is a very different perception of what the First Amendment means depending on the politics of the deciders. How can neutrality in determining what can and what cannot be communicated be ensured… if it can. And if it cannot be ensured, is democracy a doomed philosophy of governance, one that is already teetering and withering against a sea of mis- and dis-information, well beyond the simplistic application of the laws of defamation?

Savvy politicians have learned that if you repeat a falsehood enough, never veering from the lie, and if you have some claim – charismatic or otherwise – to a wide enough platform, it becomes the gospel to your followers. It can lead to insurrection, murder, severe and inflexible polarization from extremes from the left and right. So many contemporary politicians can use their power to impose their lies on society and punish those who challenge them. Major public platforms have pretty much failed at content moderation – after all, controversy and extreme positions draw a larger audience, which is most appealing to advertisers… often reflecting the biases of owners and senior management anyway (X to Elon Musk, Fox to Rupert Murdoch, Meta to Mark Zuckerberg, etc.). Complaints made by those in power usually track very much along party lines.

Europe respects free speech, but there is no equivalent of our First Amendment. Symbols of Nazi power are usually banned, in France wearing clothing that reflects particular religious beliefs is not permitted in certain places, and social media platforms are held to much stricter standards… not given the wide leeway of Section 230 of our Communications Decency Act of 1996 (where social media platforms are given a large “safe harbor” from liability for third party postings). Proseltyzers of hate speech face vastly stricter containment in Europe than in the United States. There is a balancing act in all this, and no one has really got it right, but among true democracies (are we still?), the United States is a particularly highly polarized failure.

Russia clearly recognized the power of the First Amendment when the funneled lots of money to podcasters in the US who were already sympathetically aligned with Russia’s vision for the US (and their obvious preference to see Donald Trump reelected). The US federal government has recognized such obvious and overt efforts to fund these US voices, most of whom had no idea they were Moscow’s pawns. They use the First Amendment as a shield to their toxicity.

The US has just added new names to our Russian sanction list. Like: “Margarita Simonyan, the editor-in-chief of state media outlet RT [once also cable channel in the US], is among the Russian media managers sanctioned by the US for allegedly interfering in the 2024 presidential election… The 44-year-old has been described as the Kremlin's top propagandist and ideologue, almost more Putinist than the Russian president himself… Ms Simonyan responded to her name appearing in the US Treasury's sanctions list this week. ‘Oh, they woke up,’ she said on X. In reference to other RT employees on the list, she stated: ‘Well done, team.’” BBC.com, September 5th.

OK, we’re use to the “stolen election” mantra, parroted by Donald Trump and the MAGA faithful, and which “we won by a landslide” helped trigger an invasion of the Capitol on January 6, 2021. That Trump recently modified that statement – “we won by a whisker” in a recent interview – does not seem to have impressed his followers as relevant. But so many of these fabricated “alternative facts” (never supported by reality) are causing real harm. One of the most troublesome such fabrications casts climate change as a natural cycle… and that humanity has experienced this level of heat before and easily recovered. Thus, we don’t have to deal with it.

In fact, humanity has never experienced such increases in heat… ever. A few pseudo-scholars suggest that “that it was warmer in the Holocene, Roman, and medieval eras than it is today. The Holocene epoch covers human civilization and began almost 12,000 years ago… Rosh [D’arcy, a doctoral candidate with degrees in Earth and climate science] showed how there were warm periods in the recent past, including in the Roman and medieval ages, ‘but they weren't anywhere like as warm as today — and particularly on the global scale,’ he said… ‘If you look at the data for the Holocene, you can quite clearly see that modern temperatures are well above anything in the Holocene period, so this idea that it's been warmer in the Holocene is just wrong,’ Rosh said.” TCD.com, September 6th. You have to go back to the era of dinosaurs to see higher temperatures.

But the belief that climate change is just “nature’s normal cycle” is disinformation, pushed heavily by MAGA believers in amping up our production of fossil fuels, and is actually killing millions of people a year (from heat, more intense and frequent tropic storms and wildfires, spreading disease, starvation, conflicts over resources, flooding, etc.)… allowing more emissions and more toxicity as if such climate fabrications had the remotest truth. Cities like Phoenix, Dallas and Houston watched hundreds of heat-related fatalities in the early September.

Rightwingers and populists have a stake in making sure these truths are never allowed to take root. Where academic researchers, even at prestigious universities such as Stanford, are outing truth from social media fabrications, they often find their funding vaporizing. According to the mainstream, France-based AFP (from September 5th), “academics and think-tanks facing lawsuits by right-wing groups and subpoenas from a Republican-led congressional committee.

“The researchers are accused of colluding with the government to censor conservative speech online under the guise of fighting disinformation. They deny the claims and denounce the sweeping offensive as an intimidation campaign… AFP spoke with Renee DiResta, author of ‘Invisible Rulers: The people who turn lies into reality.’… She was formerly with the Stanford Internet Observatory (SIO), a non-partisan disinformation research project… Following the Republican-led investigation, her contract, along with those of many other staffers, was not renewed, leading to reports that the group was being dismantled under political pressure.”

To MAGA Trumpers, anything that seeks an inconvenient truth is a “witch hunt.” While amending or replacing the Constitution is a severe and perhaps impossible task, it seems equally clear that the way the United States is dealing with lies, that are seriously detrimental to us all, is not working. 

I’m Peter Dekom, and there are so many aspects of our now-ancient Constitution that are eroding our democracy at a hideous speed that we really need to get real or lose our freedoms completely.