Misinformation: Past, Present, and Future

>> Eugene Volokh: Welcome to Free Speech Unmuted, I'm one of your co-hosts, Eugene Volokh. I'm a Senior Fellow at the Hoover Institution at Stanford and also Emeritus law professor at UCLA Law School. And my other co-host is Jane Bambauer at the University of Florida. Jane, we've been hearing a lot of information about misinformation.

It's an interesting question whether it is accurate information or misinformation about misinformation. Tell us what you think about what we writ large, ought to be doing about misinformation?

>> Jane Bambauer: Well, it's just so fortuitous that we're talking about this today because I was going to host a conference here at the University of Florida about the demand side of the misinformation problem.

The title of the conference was going to be the demand for bullshit, and I had to cancel it because the second hurricane in just over two weeks came through Florida, and.

>> Eugene Volokh: Wait, did it really come through Florida, or was it just rumored?

>> Jane Bambauer: The hurricane was very real.

>> Eugene Volokh: Okay, so no misinformation there?

>> Jane Bambauer: Correct, but the relief efforts were also real. But right after, well, right around the time we were all gearing up for Hurricane Milton here in the southeast, there was a lot of misinformation circulating online and even in the traditional media about the FEMA attempts and government help that was being provided or not provided to people in North Carolina and other regions that were affected by Hurricane Helene.

And so it was so strange because I was all geared up to talk about what we know so far about the misinformation ecosystem and what, if anything, we ought to do about it when the very problem came back into the public consciousness and we saw a lot of reactions to the misinformation and even some calls to crack down on platforms that are allowing false, you know, fake news and other falsities to proliferate.

And occasionally, you know, high statesmen have said that maybe we should question this First Amendment thing. So let's talk about misinformation. It is a real problem, right? Do you agree with that?

>> Eugene Volokh: It is a huge problem in many facets of our lives. And, of course, it is a huge problem for a democracy because the premise of a democracy is that we have, as voters, would have at least some sense of what's happening and whom we should vote for and whom we should vote against.

That's especially so, of course, in states like my own California, where there are ballot measures where you need to have information, not just about candidates, but about issues. But to evaluate a candidate, you need to have information about issues. And unfortunately, the reality is that people lie. And even much more often, people think they're telling the truth but get the facts wrong.

And even more often, it's not even quite they get the facts exactly wrong, but they draw misleading inferences. They focus on some things and emit other things. So, yeah, we get a lot of stuff coming our way in our email boxes and social media from mainstream media, some of which, unfortunately, is highly untrustworthy.

That's a very serious problem.

>> Jane Bambauer: Yeah. So adding to the problem. So I think those who supply or create the content, that winds up being false. I completely agree with you that quite often, it doesn't even need to be an outright malicious fabrication. It can be cherry picked evidence, whether done in order to deceive or just because the true believer is putting things together in their own mind in that particular way.

But then the other problem is the listener, right? So the listener is quite motivated for a variety of reasons, to seek out or receive, even passively receive some information that further corroborates what they already tend to believe, that that helps them cement their worldview. And this is just part of human nature.

There are social explanations. There are probably even some maybe evolutionary explanations. And so we are kind of fighting against human nature when we are demanding, both speakers and listeners, to. To be as reasonable as possible and to use the sort of best epistemic tools that we have available to us, it's not likely to happen.

So does that mean that there should be some sort of an intervention? I think this has been something that lawmakers have wanted to address forever, that this is one reason that governments in general have some proclivity to try to control certain narratives, right? So is this. Have we seen enough in the Internet era, and especially with the looming threat of deepfakes, to say, okay, well, the First Amendment, that was an interesting experiment, but it's time to rethink what we're doing here.

So where do you wanna start? Should we start at the beginning or.

>> Eugene Volokh: Well, I want to start in 1798.

>> Jane Bambauer: Okay, that's pretty early.

>> Eugene Volokh: Because that was, as best I can tell, the first major debate in the US about misinformation, about fake news. They didn't call it fake news back then.

They used the term sedition or seditious libel, which means many different things in different contexts. Sometimes sedition just basically means planning a revolution. But the Sedition act of 1798, some of our listeners may have heard of it. It's been much talked about in american law. It played a big role in New York Times v.

Sullivan, the 1964 libel decision, the Sedition act of 1798 at least, was framed as a way of stopping misinformation. And in fact, its backers, mostly the federalists, said, this is so much better than the old english law of seditious libel. I mean, we agree that the old English law is not suitable for our republic.

We can punish people just for anti-government speech. After all, we are in a republic now, and people should be free to criticize the government but not to lie about it. And in particular, the statute on its face, banned false and malicious statements that, among other things, kinda expose the government to contempt, false, and malicious statements.

And the rationale, see if you find any connections to what some of the discussions we've been hearing recently. The rationale, we see some Supreme Court justices at the time that never reached the US Supreme Court, but Supreme Court justices writing circuit and lower courts talked about it was all about the danger that false statements about the government would undermine the public's confidence in the government, wrongly undermine it, and.

As a result, would lead to insurrections, to revolts, which there had been major revolts just a few years before. So, for example, Justice Chase, in a famous sedition act case called us v. Cooper, defended these kinds of prosecutions on the grounds that if a man attempts to destroy the confidences of the people and their officers, he effectually saps the foundation of the government.

And it was clear that he was talking about their allegedly false statements of fact that if you lie about the government and you destroy foundation of people's confidence of the government, wrongly, unjustifiably destroy it. Well, that's bad for democracy or bad for republic, depending on how you want to label it, bad for self government.

Likewise, Justice Iredell, in another case, in instructing grand jury about it was a prosecution following a rebellion, the freeze rebellion. He talked about how men who are at a distance from the source of information must rely on the accounts they received from others. It wasn't on the Internet back then.

Maybe it was through newspapers. Mostly, the sedition act was focused on written statements, but still, it was the early media, early social media. A lot of the accounts and newspapers were just letters from particular citizens. If those accounts are false, the best head and the best heart cannot be proof against their influence.

Can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people with an express intention to deceive them and lead them into discontent, if not into insurrection? So that was the argument from I think a very serious jurist and statesmen of the era.

And there were many others, obviously the federalists in Congress, largely with the exception of future Supreme Court Justice Marshall. But obviously President Adams and others were backers of the Sedition act. So why did it end up being so disliked?

>> Jane Bambauer: I think some of the details that you just went over are the reasons that when you and I teach First Amendment law, students begin to see that in the early 20th century, the sort of theory behind the First Amendment really kind of went through an evolution, right?

You could not really interpret the First Amendment the way we do today in light of the fact that almost immediately after the passage of the Bill of Rights, the Sedition act was passed, right?

>> Eugene Volokh: Well, I will say so. Some people say, look, 1798, Sedition act was passed.

That's strong evidence of that the original meaning of the First Amendment was that these kinds of laws are permissible. The Congress that passed the Sedition Act, I believe it was the fifth Congress, actually overlapped very slightly with the first Congress that enacted the Bill of Rights. There was a lot of rotation in office.

What's more, there was a sharp divide in the country.

>> Jane Bambauer: That's true over this.

>> Eugene Volokh: And in fact, it is.

>> Jane Bambauer: It was highly controversial.

>> Eugene Volokh: The 1800 election ended up going against the federalists, in part because enough people were troubled by the citizenship. But why?

>> Jane Bambauer: Correct?

>> Eugene Volokh: Why would anybody say people should have the right to lie, to make false malicious statements? Well, because somebody's got to be the judge of what's false and malicious. And one of the things we found, or one of the things that I think if you look at the historical record of these persecutions that one will find is that, unsurprisingly, a lot of times there were statements that the critics, the prosecutors said, well, this is false.

But actually, there are statements of opinion or statements of evaluation. So, for example, in the Cooper case, one of the statements was that we have to borrow money at this high rate during time of peace, 17, this was published, I think, around 1799 or so. The statement that led to the prosecution and we think back on our history, we say, yeah, well, wasn't that right?

It was time of peace. No, said Justice Chase. Obviously, it's not peace. We're in the middle of this war, what I think sometimes called the quasi war. Already it tells us a little bit that determining what the actual facts are complicated. There was a great deal of tension, especially with the french government at the time.

And this person was prosecuted, Cooper Washington prosecuted and convicted in part because he made false statements about whether we were at war, which today we would say in that kind of situation, it would be a judgment call, a matter of opinion. So it's very easy for governments, even well intentioned governments, to say something is false and knowingly false when it may be an innocent mistake or a statement that some people interpret one way, some people interpret another way, or a statement in some situations where the facts are not really well known, or at least were not well known at the time the statement was made.

So that's the real danger that if you're going to punish even knowing falsehood, someones got to decide what is true and what is false, and if that is the government, and the government is engaged in persecutions for false statements about the government, its very easy for the government to err on the side of over restriction.

>> Jane Bambauer: Yeah, I mean, most of the people who are circulating proposals to amend the First Amendment or to have some amount of government influence and control over misinformation would probably not love their own positions if Donald Trump winds up winning the presidency, for example, and imagine appointing Elon Musk or something to that role.

And so you can kind of tell, I mean, I think that just makes poignant that idea that if you have an ultimate arbiter of truth, first of all, we're already in that case, and we assign the government to that position. We're already well outside the bounds of the sort of theory that has served us quite well up to this point, where, yes, a lot of people are going to say things that are wildly wrong, and yes a lot of people will believe them, but it's better than the alternative.

Right.

>> Eugene Volokh: Right. It's always a question of compared to what? That a little bit, Jake, because at the same time that there is this quite long tradition now in America and embodied in First Amendment law, that you can't prosecute people even for knowing lies or supposed knowing laws about the government.

You can't prosecute them for lies about history or about science and the like. We do have situations where courts do decide whether a statement is false and knowingly false. Right, Daryl?

>> Jane Bambauer: Yeah.

>> Eugene Volokh: Libel lawsuits. By the way, criminal libel law used to be around for much of american history.

You still have occasional criminal libel prosecutions, as best I can tell, maybe ten or 20 a year throughout the country, usually about very minor matters, or at least, let's just say, not big picture political matters, maybe major to people involved.

>> Jane Bambauer: Commercial speech and advertising law, that's an area where courts and even regulators routinely have to decide what is true enough.

>> Eugene Volokh: Commercial speech in the sense of commercial advertising, that's right.

>> Jane Bambauer: Yes, advertising.

>> Eugene Volokh: Or fraud, right? Charitable solicitation is usually protected by the first amendment. I have a first amendment right to say, donate money to my charitable organization. But if I lie about that, about what the organization is doing, then in that case, that is potentially punishable.

So what's the difference between those kinds of things, which we routinely. Except, after all, the whole point of our justice system is determine in many contexts what's true and what's false. Who pulled the trigger in some murder case, let's say, or who's telling the truth about whether there was a contract entered into.

But even when it comes to determining truth or falsity for purposes of restricting speech, we've got libel law. We've got fraud law, we've got misleading commercial advertising. Ben's not just on false, but misleading commercial advertising. So why shouldn't we be open to applying some of the same mechanisms to punish falsehoods about bigger picture items, in a sense, more important items?

Right?

>> Jane Bambauer: Yeah, okay. So, I mean, that's actually one reason I find the commercial speech or the commercial advertising cases perhaps the most interesting is because those cases do often involve claims that are a little more sort of social science in nature. So I could say, well, defamation and libel, it's a little bit different, because in general, this is not always true.

But in general, usually the parties are arguing about some sort of factual claim that is pretty easily falsifiable. You might not have the right evidence in every case, but the idea that if you did have a sort of perfect recollection of what happened or a good sort of recording, there would be one party who is clearly right and the other who is not.

Whereas claims about, once we're starting to talk about things that are much more sort of politically salient, they're often also much less amenable to easy verification, like whether what caused inflation recently and the degree to which global warming it will or will not greatly disturb and impact our lives.

And these types of things are the most important, and yet they are genuinely the most debatable. So maybe that's one difference. But even the Supreme Court has left open slightly the possibility that outside of the context of these traditional, unprotected areas of speech, like defamation and fraud. The government could still go after some falsehoods if it's well tailored to actual harm or significant risk.

Basically, that's kind of the gray area left over after the Alvarez case where the Supreme Court struck down certain parts of the stolen Valor act. And that, to me, seems fitting or fine, because if you have an actual injury that you can prove to a degree that satisfies a judge or a jury, sort of a causal mechanism to the harm.

I mean, this is something you and I have kind of debated already, even on this podcast, that I'm less worried about suits that are well constrained or that are well constrained to harm, that has actually occurred. But what's happening in light of sudden changes in technology and prevalence of social media.

Is that there's a lot more of an appetite for sort of preemptive control or the types of interventions that became somewhat common during the COVID era when the CDC. Or other parts of the government kind of were trusted to make quick and firm decisions that weren't even with more confidence than was warranted about what types of claims are true and which kind subject types are not.

So, yeah, it's a shame in a way that things like hurricane related misinformation are bringing us back to this debate, because I at least thought that the COVID era attempt to kind of, I don't know, to intervene in the marketplace of ideas did not go well for the government.

Those efforts did not succeed even on their own goals.

>> Eugene Volokh: Right, so I totally appreciate your point about government pressure on, or even government attempts to persuade social media platforms to restrict speech being also potentially dangerous. They may not be threats of prosecution, may not even be threats of fines imposed on the social media platforms, but when the government is teaming up with large private entities to try to get them to suppress speech, that's bad.

That at least is quite perilous. I very much sympathize with that. But again, let's look at it from a somewhat different perspective, just to see what the costs and benefits of the alternatives are. So my understanding is that historically, what we have generally relied on in order to try to diminish the spread of misinformation is the editorial judgment of the media that before the Internet, one of the common complaints was the freedom of the press belongs to him who owns one.

AJ Liebling's famous lines, we say freedom of the press, but most of us don't have freedom of the press. You have to either own a printing press or a broadcast network or whatever else, or have the ear of someone who does. Like they let you write op eds or write a column or some such.

So that was condemned in many ways as being oligarchical in some sense. But at least one upside was that newspapers by and large, felt it important to try to police misinformation. Because whatever we might think about the government suppressing misinformation, if our newspaper says, we totally, we totally are skeptical of attempts to suppress misinformation.

That's why we won't try to try to make sure that our pages are correct. We don't trust ourselves to police misinformation. I think most readers would say, maybe we should subscribe to a better newspaper because that's part of your job. The reason we may subscribe to you is precisely because we don't want to be misinformed, by and large.

So it used to be that we trusted the media. Now people complained about oligarchy. Maybe now they miss it a little bit because all sorts of people are free to talk, both individuals who may have audiences just in the hundreds or the thousands of their followers or their friends on social media, but aggregated, that's quite a lot.

Or people who have built a much bigger following without having really much infrastructure or much reputational reason to try to make sure that they don't misinform people. So now we have these social media platforms, and I the argument is they should be more like the old New York Times, the broadcast networks and such.

They should try to police what is on their property in order to prevent misinformation. And if the government happens to have knowledge about something, and not perfect knowledge, but a good deal of expertise, and it calls them up and says, look, we're not threatening you with retaliation. Sometimes it is threatening, but let's say it says, we're not threatening with retaliation.

We just want you to be good citizens, like good newspaper publisher, and block these things that are false in the interests of the country, in the interests of your own users. That, in a sense, some people view as the solution, as the alternative to heavy handed suppression through the threat of criminal prosecution.

>> Jane Bambauer: Yeah, okay. So I don't actually think it's possible to recreate the gilded media era. Because what that story was not just a sort of professional ethic that kept all of the newspapers in line to some degree. But it's also an economic story about there being very little incentive for newspapers to go off and find their small niches and small audiences that believe crazy things.

Because there were so few newspapers that for any given metro area, if there was only one or even two, if there were two or three, two or three papers, each one of them had an interest in sticking pretty close to the median reader. If we assume that the World Wide Web, that we're not gonna scale that back, and if there's always going to be an alternative to whatever platform you're on right now.

Then I think an attempt to, you know, whether it's through government coercion or through sort of self-policing, an attempt for a popular platform to try to recreate the standards of the media era. What they would be doing is losing their audience and not really accomplishing anything in terms of the epistemic kind of success of humans.

Because, I mean, there's some evidence that and I should say, I think if Facebook and Twitter and the major platforms suddenly attempted to do much more purging of misinformation than they currently do, there'd be some positive effect, but there would also be bleed out of the sort that I'm describing.

And then there would be these smaller communities, these smaller networks where these types of lies would proliferate. And so that gets back to this human nature problem where I am not even sure, actually, that we are in a particularly tragic era of misbeliefs. And I know there's evidence that society has been American culture has become more polarized over time.

But if we were to measure how many falsehoods versus truths each person believes, if we were somehow able to do that, I'm not sure we'd be a lot worse off than we were even during the gilded era. It's just that we could not see how deeply confused so many people were.

So I think part of this is that we are seeing new data on what we each think. And by the way, everyone makes mistakes. So, you and I, even we're trying our best, but we're probably wrong many times. And so if you start focusing on one falsehood, you're gonna see some pretty staggering numbers in terms of people that believe it.

So that's a reflection point. I do think, though, it's possible that what the Internet, that there really was an Internet phenomenon not related to belief so much, but in terms of emboldening people if they find each other and they now know, okay, we all share this worldview, I thought I was sort of on the fringe.

It turns out there are many of us, or they can circulate kind of like clusters of beliefs. So that if you believe that vaccines don't work, you should also believe these eight things because these friends who are with you on most of your worldview also believe them. So I think there's some sort of clustering and emboldening that may happen.

But at the same time, I also see some signs that when people try in their own flawed ways to do their own research, they are in some ways promoting this idea of, I guess, trying to engage in the scientific process. And so for me, at least, the jury's still out on whether in the long run, this sudden shock to our information environment is going to cause people to have much worse sort of epistemic knowledge production skills or if, in fact, we will get better at it.

>> Eugene Volokh: Right, and I mean, does what you're saying maybe that we can't go back in part because we have this technology that allows ordinary people to speak to each other, to considerable groups of other people. That is to say, speak to members of their fellow community, but also more broadly.

And I suppose we could just throw it all out or we could just limit people's access to the Internet or close social media platforms. But that really would require, first of all, rejecting this democratic notion that we should have the rights to speak and not just have professional journalists have the right to speak.

And beyond that, in a democracy, I think a lot of people seem to enjoy the ability to speak this way. And it would be hard to get a law passed, even if it were constitutional, to turn off people's access. I will say, though, part of the problem, and it's not clear how we begin to solve it, I think, has to do with people's confidence in themselves and confidence in others.

So I have very little confidence in myself when it comes to knowledge about a lot of important subjects. So, for example, medicine, I have had the vaccine, I've had that, say, COVID vaccine, I've had multiple booster shots. If you ask me, how do you know that it's safe?

I say, I don't know that it's safe. And I know that some people think it's unsafe. And I know I could do my own research, but I think it is virtually impossible for me, even with all the resources I have to do enough research that I should have more confidence, in my view, than the view of the medical establishment.

I don't think medical establishment is perfect, but I know I'm very far from perfect at evaluating medical evidence. So my view is I'm happy recognizing that there may be pathologies within the medical establishment. I'm happy to defer to their judgment on medical matters. So that's my view, at the same time, I do think a lot of people say, look, let's look at all the ways that medical establishment, various other establishments have screwed up.

Let's look at all the ways the mainstream media have screwed up. Let's look at the ways that they haven't just made errors, but they've sort of admitted to particular kind of ideological framings of the world that lead them predictably. At least I would, the observer might say, I would think would predictably lead them to various kinds of factual errors on subjects that run where the facts may be contrary to their ideology.

They're people, too, after all, they have all the failings of humans, so I shouldn't trust them. Maybe I should trust myself just because it's my body that's at stake, it's my vote that's at stake and such. So the problem is, I think we have to rely on the establishment in many ways.

Scientific establishment, foreign policy establishment, various little things. We have to rely on it because we can't possibly know as much about the subjects or learn as much about the subjects as they know. At the same time, the more they've proven themselves at times to be unreliable, it's understandable that many of our fellow citizens have stopped relying.

And the question is, how do you bring back that trust?

>> Jane Bambauer: Yeah, so I am completely with you. And I think there are two things that ought to be separated, and maybe to the degree we can get people to separate them, and it's useful. One thing is that with more information, which social media inevitably brings, you will see a lot more.

You'll discover that whether government actors and other important decision makers are flawed and make mistakes. And so to the extent that doctors or authority figures make mistakes, I think we're going to have to learn the hard way over time that that's actually a completely normal part of the process.

I mean, we could talk about the news media, too, even in the gilded era, right? Everyone recognized that.

>> Jane Bambauer: Right, but then, and I think this is what you're getting at, on top of it, we also know that people who hold ideologies strongly or hold strong worldviews are likely to see, to come to conclusions that are going to be a little bit more biased.

There's going to be error, but it's going to go in one way more often than another. In general, in fact, I would think that if any source of news that consistently finds that the explanation for everything that goes on in the world is either that the Democrats are terrible or that the Republicans are terrible, it has to be wrong, because no one, neither world view is going to be, it could possibly explain, could possibly be.

Right, the world is just too complex. Right, so, yeah, because people have better visibility, though, into just genuine random error. And then they also know, correctly, that there is, on top of that, some bias. I think there's a tendency to ascribe all error as malicious. And so maybe one way to, I don't know how to regain trust without somehow helping the consumers of news and information kind of readjust their expectations.

>> Eugene Volokh: Right, and that actually raises, I think, an important empirical question on which I think we may have some suspicions. Although I have to admit, I've not studied this empirically. To what extent are attempts to suppress a particular viewpoint likely to erode trust?

>> Jane Bambauer: Exactly, right.

>> Eugene Volokh: So one thing might be, let's assume that there's some view, could be about vaccines, could be about gender identity, could be about race, could be about sex, could be about whatever else that it is known, that the platforms will take down certain arguments about it.

So let's not even assume that it's prosecution, it's just they block those arguments. Some people might say, well, all right, they probably have a good reason for it. That's gonna influence me to agree that those blocked views are bad views, but other people might say, well, wait a minute, we've heard that there's this conspiracy to try to keep us from hearing those arguments.

Now, there's proof the government asked the platforms, or the platforms talk to amongst themselves or within the organization, and they block this. Sounds like what we heard is right, that there is a conspiracy to deny us the facts about this. Or others might say, look, I'm not even sure that there's a conspiracy to deny us the truth.

I don't know what the truth is, but if I'm going to follow the science, I'm only going to follow it. If I thought the scientists are really super open-minded and constantly open to revising their views, and once I learned that certain viewpoints can't be conveyed, whether within the scientific establishment or that the public at large, maybe I'm just not gonna trust the output of this public debate or scientific debate because not everybody's been heard.

Maybe there are some really important arguments on the prohibited side that would have carried the day if only they'd been allowed, whether again, in scientific discussion or in public debate. So I wonder, to what extent are attempts to suppress speech actually more likely to erode trust in the establishment and lead people to think that there is something to the thing being suppressed, that it's not being suppressed because it's false, but it's being suppressed because it's a dangerous truth.

>> Jane Bambauer: Right.

>> Eugene Volokh: I wonder whether.

>> Jane Bambauer: That's a negative.

>> Eugene Volokh: That's an empirical psychological question which I have not researched.

>> Jane Bambauer: Yeah, I'm not sure either. So there we go, we're both admitting things we don't know. Maybe that's a good way to.

>> Eugene Volokh: There is a vast universe of things that at least that I don't know.

Maybe not you don't know, but that I don't know. It's a much bigger universe than of those things that I do know.

>> Jane Bambauer: Yes, that's true for all of us. The best of us. So. All right, well, that was fun.

>> Eugene Volokh: It always is Jane, a great pleasure. Great pleasure to be on with you. And see you next time.

>> Jane Bambauer: Yep.