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Saturday, September 9 • 3:05pm - 3:40pm
What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble

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A central tenet of First Amendment theory is that more speech is an effective remedy against false speech. This counterspeech doctrine was first explicitly articulated by Justice Louis Brandeis in Whitney v. California (1927), in which he wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Since then, the effectiveness of counterspeech has become an integral to most conceptualizations of a functioning marketplace of ideas, in which direct government regulation of speech is minimized in favor of an open and competitive speech environment in which ideas are free to circulate, and in which truthful speech is presumed to be inherently capable of winning out over false speech.

This paper seeks to unpack the assumptions about the dynamics of the production, dissemination, and consumption of news that are embedded in the counterspeech doctrine. This paper then questions whether these assumptions remain viable in the face of the realities of the contemporary media ecosystem; and if not, what this means for contemporary media policy.

In addressing this issue, this paper will first review the counterspeech doctrine; the ways it has been put into practice in legal and policy decision-making; and the critiques that have been leveled against. This section will illustrate that critiques thus far have focused questioning whether counterspeech provides adequate protections against types of speech such as pornography and hate speech. Missing, at this point, has been a broader inquiry into whether the media ecosystem has evolved in ways that undermine the validity of the counterspeech doctrine.

This paper will then detail the technological changes that have affected the media ecosystem and media users over the past two decades that bear directly on the continued validity of the counterspeech doctrine. Specifically, technological changes have:

a) affected the relative prominence of the production of true versus false news;

b) diminished the gatekeeping barriers that have traditionally curtailed the dissemination of false news;

c) increased the ability of those producing false news to target those most likely to be affected by false news;

d) enhanced the speed at which false news travels;

e) diminished the likelihood of being exposed to accurate news that counteracts false news.

Thus, just as it has been argued that the assumptions underlying the Second Amendment right to bear arms (written in the era of muskets and flintlocks) may not be transferrable to today’s technological environment of automatic assault weapons, it may be time to reconsider whether fundamental aspects of First Amendment theory are effectively transferrable to today’s radically different media environment.

Finally, in considering the media law and policy implications of this argument, this paper will consider the implications of the seldom discussed qualification in Brandeis’ statement (“if there be time…”), its possible relevance to contemporary media policymaking, and whether other qualifications are now in order.


Gigi Sohn

Distinguished Fellow, Georgetown Law Institute for Technology Law and Policy
Net Neutrality, Broadband Policy, Mergers, Privacy, Content Moderation

Saturday September 9, 2017 3:05pm - 3:40pm EDT
ASLS Hazel Hall - Room 221