In the past several years, and particularly in the wake of certain obvious untruths having been foisted upon the American people and the people of the world, my mind has often turned to the question of the destructive power of lies versus the liberating framework of freedom of speech. In turn, I find myself pondering the basic purposes of freedom of speech, as well as the internal contradictions it offers and the limits we already impose on it.
Before proceeding further, I suggest readers take a quick look at one of today's front-page stories - Fox News wins in court - to see the issue that has jogged my typing fingers into action. It is not a new case, but it helps present rather starkly the dilemma on the definition and limits of this particular freedom.
Please, join me below the fold ... as my virgin diary, this should be exciting for me, and I hope it proves to be as exciting for the rest of you, too. :)
Firstly, I want to present the freedom of speech dilemma:
In the case linked above, Fox 'News' was sued for terminating employment for a pair of Tampa Bay affiliate producers who refused to air falsehoods on an issue of public interest. The response was ...
FOX asserted that there are no written rules against distorting news in the media. They argued that, under the First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves.
Fox won on these grounds on appeal, while making no attempt to counter the veracity of the defendants' charges. They had their position upheld in court on their right to lie or deliberately distort the news on public airwaves.
The comments section on the diary displayed some rather broadly differing viewpoints, even amongst those in agreement on the reprehensibility of Fox's actions.
A "don't lie" law would be constitutional affront
Assuming there were a "don't lie" law, it would be constitutionally offensive.
It is a basic tenet of administrative law that an agency must go through the administrative rule-making process for a regulation or a rule to become a law. In this case, there was an informal and unpromulgated "policy", i.e., a regulatory agency preference for truth (whatever an agency of the federal government thinks that is). However, there was no law (i.e. statute, regulation or rule) on the books for the licensee to violate.
Therefore, assuming a "don't lie" law were even constitutional (it wouldn't be), there is no law on the books for a FCC licensee to violate. This is the reason the case was reversed.
The court made the right decision.
[...]
This case stands for the fact that
1. some courts still respect the First Amendment; and
2. Fox will go to any length to lie, distort, dissemble and conspire to defraud its viewers.
Both are critical for Americans to remember.
[...]
by Caoimhin Laochdha on Mon Jul 30, 2007 at 07:02:58 PM PDT
I don't believe this is correct
where William Mayton correctly explains that Congress does not have the authority to regulate the content of our speech ("Congress shall make no law. . ." means that Congress SHALL NOT make a law. Period). [quoted from another post by Caoimhin Laochdha]
It's important to look at the full text and how it's been traditionally been interpreted. The amendment actually says: "Congress shall make no law ... abridging the freedom of speech, or of the press."
Congress actually can make laws regarding the method or even the content of speech, and it has done so on many occasions. Such laws just have to meet certain tests to show that they do not abridge freedom. Restrictions on method must meet reasonability tests, restrictions on content have to meet high standards of public interest and narrow tailoring.
Basically, Congress can punish abusive uses of freedom, provided that not one atom of baby is thrown out in a gallon of bathwater. Deliberate lies are protected only because we can't protect the truth in all its facets without protecting lies. However, among all the factors that expose a person to consequences of his use of speech, deliberate falsehood is among the weightiest. You can say anything you like about somebody, but when it is a lie it becomes defamation. You can argue any way you want when negotiating a contract, but when you lie it becomes fraud. If Fox lied in a way that damaged a private company, they could be sued. By lying in a way that damages the public, they avoid being sued only because so many people are harmed it is beyond calculation. So in general, the consequences of lying in journalism are restricted to loss of credibility.
[...]
by grumpynerd on Tue Jul 31, 2007 at 08:34:04 AM PDT
Obscenity isn't protected
by the 1st Amendment. Lying can be, provided it does not fall under the libel or slander laws. In this case, lying on Monsanto's behalf isn't either of those things, as there was no harm to the subject of the falsehood. Quite the opposite in fact.
[...]
Fox's conduct in this case is reprehensible, sure, but not illegal.
[...]
by Leftie Gunner on Mon Jul 30, 2007 at 10:57:45 PM PDT
Isn't lying about the news...
WORSE than yelling "fire" in a crowded theater? The effect may not be immediate, but the implications are far more insidious.
The last I remember, one of these things wasn't protected speech.
by Chris Joseph on Mon Jul 30, 2007 at 06:04:27 PM PDT
Not a good idea
I happen to agree this was correctly decided. Just as I defend the freedom of speech of wingnuts (and our freedom of speech in turn to debunk, expose and ridicule them) so I defend the freedom of the press even to be used for disseminating falsehood. No government body should ever be entrusted with the power to define what is "The Truth". If we pay any attention at all, that government-defined Truth would soon become the wholely owned property of powerful specfial[sic] interests and lobbies taht[sic] could then use that "Truth" to prosecute/persecute sopcial[sic] critics that take issue with the lobbyist-defined Truth.
by ActivistGuy on Mon Jul 30, 2007 at 06:34:27 PM PDT
[In reply]
Darn, I almost agreed with you
I also think the decision was correct, because the FCC is not Congress. I don't feel lit has the power to make such an actual law.
This is just a loophole coming to light that needs closed.
I think it does need to be made into law, similar to slander and libel laws. If you knowingly distort the facts, you should be liable. Presenting a single study that is favorable to you and not listing 3 others that aren't is one thing. Changing the results of a study or claiming that people made statements they didn't is highly objectionable and should be grounds for legal action.
Like it or not, ours is a society that relies on information, honest information, to run efficiently. People feeding in lies and distortions are what has led to the Constitutional crises we currently face.
by drbloodaxe on Tue Jul 31, 2007 at 06:42:49 AM PDT
It is a right under the 1st Amendment
otherwise any government could claim any news report was a lie and ban or punish the source at will.
We used to have some protections such as the fairness doctrine and limits on the amount of media any one owner could have. This used to keep up pressure and competition, but since the late '80's and through the '90's we have totally weakened those rules, so there is now no protection against lying weasels in the media. Both the democrats and rethugs contributed to the weakening of these rules.
Our only defense nowadays is the good judgement of the media and the commonsense of the American people. God help us.
by shigeru on Mon Jul 30, 2007 at 06:13:34 PM PDT
[In reply]
I'm not quite following the logic
If the government were to pursue such action wouldn't they have to prove in court, beyond reasonable doubt, that the broadcaster not only lied but had the intent to mislead, i.e. the lie was deliberate, not just some oversight or mistake? If the broadcaster were not deliberately spreading falsehoods then the government would be incapable of banning or punishing the source at will. Free speech would be protected against predatory action by an unscrupulous government and the commons would be protected against nefarious propagandists serving special interests against the common good.
I believe it is perfectly reasonable to craft laws limiting free speech where it intersects with harming others (libel, defamation) or inciting violence (i.e. hate speech). I would include in that knowingly spreading falsehoods with the intent to mislead public opinion. One such example: spreading lies, with full knowledge of the true nature of the falsehoods, to sell a war to the public. That should be illegal.
Freedom does not mean the right to do whatever the fuck you want regardless of the harm such actions could do to others. For example, someone's freedom to smoke shouldn't include the right to give someone else lung cancer. I see freedom of speech issues in a similar vein...
by mojo workin on Tue Jul 31, 2007 at 07:11:27 AM PDT
In summation, the viewpoints posted above are approximately as follows:
- It is inherently unconstitutional to legislate against knowingly telling falsehoods (against the 'content of our speech').
- Congress has the right to make laws regulating the content of speech, so long as they are narrowly tailored in a way such that overall freedom of speech is enhanced, rather than abridged. However, by the ambiguous nature of the plaintiff (the public at large) in the case of fabricated news, there is little consequence that dissemblers of false news must bear.
- Lying is protected as long as it is not libel or slander or obscene.
- Intuitively, lying must be illegal in some form, as lying in news is worse than yelling "fire!" in a crowded theater, which is already determined to fall outside 1st amendment protections.
- Everyone should be free to say anything they like, and we should be free to respond to them. Giving government authority over content (e.g. 'definition of Truth') is a dangerous proposition, and susceptible to abuse by special interests in government.
- Our society is dependent on honest information to operate efficiently and to prevent other abuses of our freedoms, and therefore out-and-out lying should be made illegal.
- The 1st amendment protects our right to say whatever we want, and without that right, government could abuse its position as arbiter of truth. We need to rely on private action and the action of an open market to dispel untruths.
- Laws made to limit speech where it harms others are perfectly acceptable, and the standard burden of proof that must be met in court is enough to protect citizens against government abuse. Spreading falsehoods with an intent to mislead should be illegal.
My intention now, in the wake of these conflicting views, is to establish whether a legal framework making the knowing telling of falsehood to the public is, a) Constitutional, b) already existant, and c) desirable.
I will state now, in full disclosure, that I myself side strongly with those who believe the Government has a right, and a duty, to regulate the content of speech such that the public can engage in honest debate and can trust information that comes to them, when it is presented with the intention of being considered true (i.e., satire should be protected because it is not expected to be viewed as literal truth). I should also state that I have arrived at my views out of a general interest in the subject and through personal interpretation of the Constitution and the legal system as I know it ... I am not a Constitutional scholar. Anyway, my reasoning will be presented below.
Firstly, here is the full text of the 1st amendment:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The amendment is short and concise, and appears at first glance to leave no room for discussion. However, it should be remembered that the world is not painted in black-and-white, and that the power of the Constitution is considered by general consensus to be a "living document", in that its precise meaning and power is determined by judicial interpretation ... precisely so that its narrow language may be applied to a broad and changing world. Particularly, the 1st amendment does nothing to draw lines between the many possible conflicts and intersections between individuals' speech and other rights that are granted to other people (particularly when there is a conflict based on the text of the 9th amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." ... meaning that if one considers it a right to have a quiet, peaceful life in one's own home, it may be perfectly acceptable to legislate against the ability of others to yell into a bullhorn outside late at night. Likewise, if one considers it a right to be free from racial discrimination, it may be advisable to pass laws tailored to curtail hate speech.); it is for this that legislation and judicial opinion is not only advisable, but necessary.
As stated in one of the pasted comments above, the 1st amendment has been traditionally interpreted such that "laws just have to meet certain tests to show that they do not abridge freedom. Restrictions on method must meet reasonability tests, restrictions on content have to meet high standards of public interest and narrow tailoring." I find the wording that laws may not 'abridge freedom' very enlightening, because it suggests that laws pertaining to content of speech do not necessarily abridge freedom at all! Rather, they may often enhance freedom, by the process of creating a more just and better functioning society for us all to live in. Essentially, the idea is that good regulations should allow the public to give up a penny in one place to take a nickel elsewhere.
As a small digression, there are those that may nevertheless believe that the Bill of Rights is meant to set strict limits on government power, and that the conflicts arising between various freedoms of various peoples should be resolved between the individuals involved (the extreme libertarian view). My take on that is that government, at some level or another, is by its nature generally the proper venue for resolving disputes within or between different groups of people. If government in some form did not have authority over areas in which conflicts might arise, ours would be a more chaotic, poorer society, in which either the weak would be subject to the strong or conflict would be prolonged and costly.
Well, moving on, the first place I turned for information on this subject, as it stands in actual law today, was an analysis by the Congressional Research Service, Freedom of Speech and Press: Exceptions to the First Amendment.
The CRS report cites that:
The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press...." This language restricts government both more and less than it would if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches of the federal government, and to all branches of state and local government. It restricts government less in that it provides no protection to some types of speech and only limited protection to others.
Essentially, this confirms that the principles that have governed our nation since long before we were born include the ability of government to limit speech in specified ways. The CRS goes on to describe the many different types of speech that are limited:
... the Court has decided that the First Amendment provides no protection to obscenity, child pornography, or speech that constitutes "advocacy of the use of force or of law violation ... where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to "regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." And, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes "strict scrutiny," i.e., if the government shows that the restriction serves "to promote a compelling interest" and is "the least restrictive means to further the articulated interest."
So there are, in fact, many ways in which the government already regulates speech. Any but the strictest libertarian would probably agree with at least a few of the limitations cited, that in general they benefit society, and that our legal system has done a fine job of protecting our rights and freedoms from rampant government abuses. As it pertains to our immediate point of discussion ... disseminating falsehoods ... there is even the specific example that truth-in-advertising may be enforced, though it is granted that commercial speech is considered subject to far less protection than political speech.
With respect to news broadcasts and political speech, it does not appear that there is any structure set up to regulate content to keep it free of intentional falsehoods. On this point, it seems that those who believe the Fox case was decided correctly may be right. However, it may be possible that the laws covering fraud could come into play, in which the standard is that plaintiffs must "[be] truly deceived by the misrepresentations given and that [they] reasonably relied on the statement or act to [their] detriment". Regardless of whether current fraud law is directly applicable to the Fox case or not, it seems that restrictions on telling falsehoods to the public should be allowable under the conditions that they are narrowly tailored and as minimal as possible to meet a pressing public need, and that it can be shown that there was an adverse affect on the public, based on the public being deceived.
Now we get to the major question: Should there be restrictions on the knowing and malicious telling of falsehoods in America? After all, isn't it better to simply fight falsehoods with the truth, and let the truth win? Many on the DailyKos subscribe to this belief that we must rely on the marketplace of ideas to sort itself out. I do not.
From Wikipedia's entry on Freedom of Speech:
This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the barnyard of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.
The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur during the interim.
While I have nothing against the marketplace of ideas analogy, I believe that, as with all properly functioning marketplaces in the real world, effective regulation is needed to help it function optimally. Just as truth-in-advertising and full disclosure are key to the effective operation of commercial markets, so too are they key to a market of democratic ideas and a proper understanding of the world around us. The basic idea behind such regulation is not only that it would prevent much misleading information from damaging the public's perceptions of world events, but that it would also allow the public to restore their trust in the media and in public figures, to the point that our nation would be better equipped to arrive at a consensus on critical issues in a more timely and effective manner.
It should lastly be shown that there is a significant public interest in regulating truthfulness in public discourse, particularly in the news and politics. This is as easy as looking back to Election 2000's War-Against-Gore in the mainstream media that put Bush in office, to the run-up to the Iraq war, and to the last several years of the climate change debate. Further examples of immensely costly and impoverishing outcomes arising from individuals pissing in the waters of public debate are legion.
In my mind, it is clear that, whether Fox could legally get away with claiming a right to deceive in its news broadcasts, it should not be allowed. It seems clear to me that there is a public right to receive effective government regulation in this area, to ensure that the public is presented with reliable information so as to make the best possible decisions as a fully-functioning representative democracy. It seems to me that the public need (covered, incidentally, by the 9th amendment) greatly outweighs the limitations imposed by the 1st amendment. Whether those who have read this far agree with me, I hope my perspective has been illuminating nonetheless.
Cheers to all,
Ari Bronstein