Disinfo v. Democracy
Using accusations of ‘disinformation’ to suppress scientific criticism, steer media coverage, and silence political opponents is not part of the operating system of a free society
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First Amendment principles permit the government to punish false speech when it directly and immediately causes specific and serious harm. But unlike defamation, fraud, perjury, and other examples of punishable false speech, the term “disinformation” (or “misinformation”) has no specific legal meaning. “Disinformation” is widely used to designate false or misleading speech that cannot constitutionally be punished precisely because its potential harms are indirect and speculative—what the U.S. Supreme Court has called “an undifferentiated fear or apprehension” of negative consequences.
To be sure, even though the harmful potential of disinformation is more inchoate than that of false speech that is constitutionally punishable, the potential for harm is still real. The many current advocates of restricting disinformation stress that it can cause serious harm, including to individual and public health, and even to democratic self-government itself. Yet expanding government power to punish such expression would also cause harm that is at least as serious—including to the very same values of health and democratic governance.
The negative impact of censoring disinformation comes from its inherent vagueness and subjectivity. The authorities tasked with censorship invariably enforce this malleable concept in ways that reinforce dominant political and societal interest groups, and disadvantage minority groups and perspectives. This predictable dynamic is illustrated by recent experience in a number of other countries, from Russia to South Africa, and also in the United States before the Supreme Court enforced strict limits on punishing false speech.
While the relevant legal analysis focuses on government censorship of disinformation, many of the same concerns also apply to censorship implemented by dominant technology firms…
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