William H. Widen, Professor of Law at the University of Miami School of Law, in Coral Gables, Florida discusses recent proposals around censorship and how they impact the marketplace ideas on the internet...
The House decision to strip Marjorie Taylor Greene (R-Georgia) of committee assignments reflects a recent attempt to deal with a perceived failure in the marketplace of ideas. Oliver Wendell Holmes suggested in dissent over 100 years ago (Abrams v. United States (1919)) that the best way to arrive at the truth is by a “free trade in ideas” and not censorship. As an example, the Supreme Court referred to a marketplace of ideas in Matal v. Tam (2017) to invalidate a federal trademark law prohibiting disparaging trademarks.
Federal courts have invoked the idea of free trade in ideas hundreds of times in defense of freedom of thought and expression against attempts at censorship. And yet, many now advocate for supposedly benign censorship to counteract disinformation and conspiracy theories peddled on the internet and elsewhere. One concern centers on a fear that dissemination of untruths harms the political process by preventing voters from making informed choices. Disinformation and conspiracy theories create a problem of externalities similar to pollution in which an offending party pays no cost for harmful behavior.
The model of free trade in ideas rests on the idea that people exercise their rational side when making important civic decisions and not on an irrational side influenced by prejudice and emotion. Propaganda appeals to the irrational side of human nature by polluting the discourse. Advocates for benign censorship perceive a need for a counterforce to correct for the risk of this market failure should the rational side not always prevail. The idea of a counterforce to market failure has a place in law. For example, anti-trust law corrects for market failures of monopoly and price-fixing. Censorship is a direct way to police harmful behavior in the marketplace of ideas.
The real world presents only bad choices, and less bad choices, to confront the conflict in human nature between rationality and emotion and the risk that the “pollution” of disinformation and conspiracy theories inhibit the rational exercise of civic judgments. Despite these very real risks, the Holmesian idea of free trade in ideas still represents the best option. Two structural features of law counteract the problem of market failure which do not require a resort to censorship. Refinement of these ideas in a bi-partisan way represents the best path forward. The first idea imposes a cost for polluting the marketplace of ideas. The second mitigate the worst effects of the pollution.
The first idea already appears in lawsuits filed against traffickers in falsehoods. Smartmatic has joined a lawsuit filed by Dominion Voting Systems for defamation against Rudy Guiliani for spreading a “Big Lie” about election fraud and voting machines by suggesting that Dominion had stolen votes and fixed the election. Guiliani made these public statements though he was unwilling to include them in a court filing on behalf of President Trump because, as alleged in the Dominion lawsuit, “he knew those allegations are false.”
Michigan Governor Gretchen Whitmer filed a bar complaint against another lawyer, Sidney Powell, requesting suspension of Powell’s law license for making similar public statements in support of Trump. These lawsuits counteract disinformation and conspiracy theories, not through censorship, but through existing legal theories that address the consequences of publicizing falsehoods. It imposes a cost on polluting the marketplace of ideas. This cost should discourage anti-social behavior. Legal liability provides the policing function, and not a separately designated “speech police.” A court proceeding to assess truth and falsity replaces both speech police and unstructured reaction such as when the majority political party deprives committee memberships to the minority party. In a very real sense, the impeachment trial of former President Trump in the Senate presents an opportunity to exact a real price for injecting false statements into the public discourse.
The superiority of the legal proceeding versus censorship is illustrated by the ill-conceived censorship by Twitter of the New York Post story about Hunter Biden’s laptop. Jack Dorsey, the CEO of Twitter, now admits that Twitter’s censorship of the New York Post was a “mistake.” It now appears that the story was true, despite the suggestion by 50 former intelligence officials, including John Brennan, that the story resembled classic Russian disinformation.
A far better approach is to re-examine our laws to make sure that they allow for practical remedies against purveyors of falsehoods in their different manifestations so that a true cost is borne by those who pollute the marketplace of ideas. Corporate interests respond particularly well to liability rules such as these. Flagging potentially false or questionable narratives by providing links to counter-narratives might be one method if such identification provided a safe-harbor from liability. This might supplement, rather than eliminate, protections under Section 230 of the Communications Decency Act. This might work well for content platforms in which posting decisions are made by individuals. A similar technique of “notice and takedown” is used for content that infringes copyright. Another approach might be used for outlets like CNN and Fox News, as well as print media, who voluntarily decide to post “opinion” content.
A voluntary content provider might make an editorial decision not to publish as an opinion something that the outlet considers false or questionable. If the voluntary content provider, however, decides to publish despite this concern, the outlet might insulate itself from liability with a statement of disclaimer–both explaining the decision to publish (for example, because the opinion is from a prominent public official) coupled with an explanation of concerns. If publication without the disclaimer resulted in liability, this might temper an instinct to publish anything which might generate ratings and advertising revenue. The approach resembles warning labels on harmful products (like alcohol and cigarettes). The key point is that these techniques counter-speech by promoting more speech–in effect, expanding the free trade in ideas. Congress might work in a co-operative fashion to strengthen a commitment to the marketplace of ideas through appropriate additions to the legal structure to enhance the functioning of that marketplace while ensuring access to courts for those harmed by spreading falsehoods so that a polluter bears an appropriate cost.
The second idea is to embrace the structure of advance voting and vote by mail. The virtue of spreading out the vote over an extended period of time is that it counteracts the impact of a late “October surprise” which plays to emotion rather than rationality informed by an evaluation of facts. Though not a perfect response, it softens the impact of late-breaking news incapable of full vetting. It mitigates the adverse impact of the pollution—though it does not deter it or impose a cost upon it.
A famous example of the October surprise problem occurred when James Comey, the FBI director, announced in October 2016 that the bureau had re-opened an inquiry into Hillary Clinton’s emails. Our election cycles already are so long that voters have ample opportunity to assess candidates well in advance of the first Tuesday in November. Here, the bi-partisan challenge is to strengthen confidence in the integrity of advance voting and vote by mail to let this structural feature enhance confidence in elections, while not allowing concerns over election integrity to fester. Ideally, this should be accomplished without federalizing the procedures for elections. Another strength of the system is its decentralization. It is hard to “hack” a national election to any material extent when that election is administered at the county level across the United States.
Our challenge remains to chart a better path for the future of the United States. Censorship does not represent the best path forward. Indeed, as the conversion of Saul to Paul on the road to Damascus illustrates, sometimes the best advocate is a convert. Marjorie Taylor Greene is an unlikely candidate for conversion after exile from interaction with other House members (and maybe she never was). But methods other than banishment can clearly indicate disapproval of stupid ideas by exposing them through more speech. The political reasons for advocacy of stupid ideas are complex, as they sometimes are a trope to distance one side from the other side, albeit often employed in a foolish and uncritical way. It can be a lazy method to create distinction and distance. It is hard for a system of advanced censorship to make the correct judgments about the use of falsehoods by politicians.
As a collective, we should all want the best future for our country. The challenge is to identify the best legal structures to promote the desired result. I recommend the two structures identified above as a better path forward.
William H. Widen is a Professor of Law at the University of Miami School of Law.
Suggested citation: William H. Widen, Failure in the Marketplace of Ideas, JURIST – Academic Commentary, February 15, 2020, https://www.jurist.org/commentary/2021/02/william-widen-censorship-impeachment-ideas/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com.
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