The Persistent Problem of Fake News and the Prospects for a Private Prior Restraint

Fake news is a problem, and I don’t mean the squishyness of the term, I refer to the widespread distribution of information that is patently false for the purposes of reaping poorly distributed rewards from advertising technologies. From the government mandate media perspective we can find the cousin of fake news, propaganda.

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Immediately after the election, Google began to break the short circuit that was funding fake news and Facebook promised a new campaign to stop the spread of fake news. Unfortunately, Facebook’s campaign isn’t working. There are the obvious problems, the same fake news link might circulate under many names, it takes a lot of effort to review a story for facts, many difficult stories have facts with ambiguous. There is a more fundamental problem, post-hoc solutions are ineffective for mitigating problems in the public sphere. In general, the official Zuckerberg-Facebook theory of the public sphere is simplistic, relying on a very strong vision of distributed judgement. For years Facebook depended on the idea that good ideas magically trump bad ideas, a sort of free speech absolutist position that doomed Twitter.

When did Don Knotts die?

Pretty much everyday. He died today for some facebookers. The Don Knotts death story is an example of a recurrent cascade: where a story moves across a social network repeatedly for a long time after the initial event. Stories that tend to be the subject of repeated cascades are moderately emotionally intense, are not particularly traumatic, and have a slow onset. Don Knotts is a perfect celebrity death, not too popular or visible, but still in the hearts of many. There are many stories that are simply out there, vibrating across the network. It is entirely possible that this is a good thing, Jonathan Tuboul theorized that hipster communities are uniform as they function as counter-oscillators, and that healthy systems may depend on these sorts of syncopated social roles.

For a story like Don Knotts death, a fact-checking operation could flag the inaccurate information. After all, this story is recurrent because it is low-impact. Aside from someone bidding high in an Andy Griffith show memorabilia auction the terminal impacts here aren’t large. Of course there is likely some upset or nostalgic feeling associated with thinking about the man. This feeling is synchronic — it happens right now in the moment. The diachronic fact check doesn’t undo the feeling of that moment.

This break between the diachronic and synchronic* is important in communication research, the comparison of the two registers is important in the theory of the ideograph, for instance. Using arguments specific to one register is common in popular writing about communication, this usually appears as an attempt to discount someone’s feelings on the basis of a historical argument, to claim that a present feeling is structural, or to simply tell people how they should feel. Or to borrow from Futurama, “You watched it, you can’t unwatch it.”

*I am using this in the sense that the present is the moment, it is possible to do historical research on the synchronic.

There is no First Amendment in France

For years it was possible to enforce defamation judgements from countries without free speech protections in the United States. Jurisdiction shopping for defamation courts in the United Kingdom was common. This loophole is no more, but the underlying differences in the legal status of speech remain.

In the run up to the recent French elections a state-level actor released a vast volume of e-mail from the Macron campaign. The news had little effect.


The French press respect a law prohibiting the publication of news related to an election in the immediate run-up to that election. Macron’s operation knew that it was the subject of attacks and actively fed their attackers false information so that when the attack came it was presumed to be false. Instead of allowing a story to hit with full force, acting as if it was true until proven false, and then remediating the impact of the story, the French press took no action. France has a robust public sphere — why let someone break the rules of that public sphere with impunity?

The Press Was Always Already Restrained

People often operate under the assumption that the news of mid-century was some sort of agora, where Walter Cronkite moderated an open exchange of ideas. The news of this time period was strictly controlled by the will of advertisers, the fairness doctrine, and their professional norms. Journalists were thus positioned to operate as, and along side, what Kathleen Hall Jamison has termed knowledge-certifying communities. Epistemology is hard. Truth doesn’t magically spring from a test tube or a fluorometer. Many stories were omitted from the news, entire categories of critical information simply did not appear. You are never not making an exclusionary editorial judgment, even if that system is facially neutral. Restraint is always taking place, it is simply a question of to what end and by whom.

Is governmental prior restraint desirable? Likely not. But the proposal I make here is not that the government should censor social media. Rather that these companies make editorial judgements everyday and these massive publishers should take additional responsibility for what they publish. Once the damage is done, it is done. If a source tends to publish unreliable material, blockade it. The solution is more speech. Facebook or Google declining to spread lies does not imperil free speech. If these ideas are compelling, alternative publishers of these materials will surely grow. The algorithm now makes an editorial choice to put Occupydemocrats above The New Republic, that is editorial.

Is this really a crisis?

If it bleeds it leeds. Every story is set with the style of a Star Trek episode involving the auto-destruct system. 10 seconds to doomsday. The final argument against strong filtering would be that concerns to be debated by the public are so immanent that all information, regardless of quality, should be thrown into the process for analysis. Elections are slow on-set events. Not crises. Food borne illness outbreaks or tornados? We have very strong knowledge-certifying operations for these cases. It is highly unlikely that an alternative FDA will appear to contest the symptoms of Lysteria. As an EF5 tornado bears down on your home you don’t need to hear an extended debate about the causes of tornados.

The argument that chemtrails are real or that Secretary Clinton was running an operation out of Comet Pizza should not be treated seriously.

In short, fact-check flagging is not an effective strategy to mitigate immediate media effects. Stronger filtering processes that slow the distribution of faulty information would be more effective and would enhance public debate.

Associate Professor of Social Media. Oregon State University. Read my book: Selling Social Media (Bloomsbury Academic), 2018.

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