Cass Sunstein’s 2021 book, Liars: Falsehoods And Free Speech In An Age of Deception, is focused on existing limits on free speech in the US, and the pros and cons of further regulations on free speech. Sunstein is a Harvard law school professor and legal scholar. The book is short (133 pages), non-technical and easy to read. Sunstein’s assessment of America’s situation, analysis and reasoning leads him to propose this:
False statements are not constitutionally protected if the government can [objectively] show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route.
Since Sunstein’s book published in 2021, the damage and intensity of dishonest or dark free speech in politics, e.g., demagoguery, lies, defamation, divisive crackpot reasoning, irrational emotional manipulation, etc., have significantly worsened under Trump and MAGA politics, tactics and policy. Most safeguards and norms that tended to limit dark free speech harms have weakened or fallen completely. The damage to society, American democracy, government and commerce is vast. It is mostly hidden by demagoguery, distractions, defections and lies that soften and normalize free speech harms. Much of the damage will not be reversible any time soon, if ever.
At present, laws regulate several kinds of dark free speech. The main ones are false advertising or fraud, defamation (written libel or spoken slander), perjury under oath in court proceedings, non-trivial false statements to government officials, child porn, incitement of imminent lawless action, “true threats” of unlawful violence, copyrights, and trade secrets. In the case, United States v. Alvarez, the USSC rejected broad bans on “mere lies” when they don’t amount to harms like fraud, perjury, or defamation (significant harm to reputation).
Thus in politics, most dark free speech in the form of demagoguery, lies, crackpot conspiracy theories and irrational emotional manipulation (bigotry, racism, etc.) are constitutionally protected and the government cannot regulate it. But the 1st Amendment right to free speech does not apply to private entities, e.g., blogs like BNR, newspapers, social media or broadcast media. Private entities can regulate what protected speech they allow and disallow.
The pros and cons of speech regulation
Sunstein points out the complexity. He points out that the chances of truth surviving in the face of hostile power are very low. Lies and deceit can always push truth out of the world. Facts are very fragile things, easy to distort and destroy.
He carefully distinguishes between falsehoods based on honest mistakes, intentional lies, and bullshit, i.e., content based on no concern for truth or harm. Honest mistakes are human and unavoidable. But so are lies and BS. The level of harm that falsehoods cause varies from grave and literally lethal to nonexistent. The probability and timing of potential harm varies from (i) certain to highly improbable, and (ii) immediate to distant future. Those factors are relevant to considering regulation of lies. He does not propose regulating honest mistakes because an intent to deceive is absent.
Sunstein points out that liars often believe that their lies are morally justified. In their minds, the ends they believe in lying for justifies their intentional deceit and the risks of harm to innocents their deceit might cause. For example, belief in lies about vaccines can and has caused people to reject them. That has led to the deaths or serious harm of some of them or others they infect.
Sunstein also points out that lying and falsehoods violates people’s power and autonomy. The reasoning is simple. When people have been deceived, and they think and act of the basis of deceit, deceit has taken from them their power to think and act on the basis of truth. In other words, power flows from the deceived to the deceivers. Deceit is thus inherently authoritarian, corrupt or usually both. So are the deceivers.
The obvious problem inherent in regulating dark free speech, bias and abuse of power, is inherent in the human condition. The natural human urge is to use power to ward off criticism and embarrassing truths. Authoritarians are heavily biased to abuse their power to insulate themselves from criticism and embarrassing truths. Trump is a current example. He attacks and sues the mainstream media and political opponents, but has no basis in law to do so. If there were laws regulating dark free speech, morally rotted authoritarians like Trump would falsely claim that inconvenient truth from his targets are lies and subject to being shut down by the law. That has already happened. Link, link, link
Finally, Sunstein points out that the default human condition is to trust what they hear. That can flip to distrust if the listener is informed of relevant facts or has reason to distrust a known dishonest source, e.g., chronic liars like Trump and MAGA elites. The problem is that most people don’t or can’t do fact checking. Liars and deceivers usually have at least as much access to persuadable minds as truth tellers.
Q: Should objectively demonstrable lies, falsehoods, and BS that are likely to cause significant harm be subject to more stringent regulations than is currently the case, or is the threat of authoritarianism too great to justify that?
Reviews of Sunstein's book:
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