Combat Disinformation With Better Norms, Not More Laws

In a typically unhinged social-media post last month, Donald Trump expressed the desire to jail former U.S. Rep. Liz Cheney (R–Wyo.) and the members of the select congressional committee investigating the January 6 riot or insurrection or peaceful demonstration or FBI false-flag operation (pick your narrative). It's one in a long series of posts in which the former president and 2024 GOP nominee has touted tactics usually reserved for third-world strongmen.

More recently, the judge in the case involving Trump's hush-money payments to adult-actress Stormy Daniels slapped a gag order on him "after repeatedly targeting the judge's daughter in social media posts," per USA Today. Not long ago, Trump said he would tell Russia to do "whatever the hell they want" to NATO member countries that don't pay their bills. And, of course, he continues to falsely claim the 2020 election was stolen.

This is all widely reported, yet I expect many readers to already have their computers out so they can pen angry letters to the editor. Sorry, I've already heard all the excuses, "whataboutisms" and alternative explanations. America's two main tribes don't agree on much anymore and there's little hope they'll find common ground on Trump. But they should agree on this much: He's demolished most of the norms surrounding the presidency.

Channeling the Carly Simon song ("You're so vain, I bet you think this song is about you"), I'd note that this column isn't really about that narcissistic man who has captivated the public's attention for more than eight years. It's about disinformation and what the nation should do about it. In their frustration at Trump's truth-bending norm-busting behavior, many Trump critics are willing to promote policies that would also seem inappropriate in a democracy.

In a New York Times piece last month, Jim Rutenberg and Steven Lee Myers note that after the January 6 unpleasantness, "a groundswell built in Washington to rein in the onslaught of lies that had fueled the assault on the peaceful transfer of power." Blaming the spread of misinformation for Trump's success, they lament "the Biden administration has largely abandoned moves that might be construed as stifling political speech." They expressed concern by political opposition to a broader government role in shielding elections from disinformation.

That sounds so reasonable on its face. Trump and his MAGA movement have indeed spread misinformation and disinformation (the former is false and the latter is maliciously so) to keep the former president in power—and now to help him waltz back into the Oval Office. But the First Amendment is clear ("Congress shall make no law…"). There's absolutely no way government officials can reduce either of those two types of bad information without crushing the free-speech protections that are inherent in our nation's founding.

The basic rule of thumb in America is people can pretty much say or write what they choose. Libel law provides a form of recourse in the civil courts, but alleged victims have to surmount a fairly large hurdle. That's as it should be. Let's take an example of why even the best-intentioned government anti-disinformation efforts would descend into absurdity and abuse.

Many progressives believe that manmade climate change is as true as the existence of gravity. Some conservatives believe it's not true and provide alternative explanations and data. If the government tried to crack down on climate-change mis/dis-information it would inevitably (depending on who controlled the government) end up censoring ideas that run contrary to the mainstream view that manmade global warming is an unquestioned fact. Even if it is, this would chill discourse—and squelch legitimate studies that challenged the most debatable aspects of the theory.

Sure, some social media platforms arguably have done as much, which explains why many Republican legislators have supported efforts to expand government control of social media. But those are private platforms. The government isn't doing the censoring. Elon Musk's purchase of Twitter (now X) shows how easily private companies can change their policies. By contrast, official policy in federal or state agencies rarely changes over decades.

Increasingly, progressives are ditching their long-held (supposed) commitment to free speech. I previously quoted from another New York Times article that found a bevy of constitutional law scholars who "are beginning to question the way we have come to think about the First Amendment's guarantee of free speech." They find such protections "inadequate for our era"—and that political era is defined by Trump and his willingness to promote conspiracies and cons.

Americans fixate on changing laws to improve outcomes. But we can't fix a political problem that has eroded democratic norms by passing new laws that also erode cherished free-speech norms. That approach is downright Trumpian. Rutenberg and Myers's piece fears "Trump's allies are winning the war over disinformation." Well, it's time to fight back through better information and discourse, not by empowering the government to referee these debates.

This column was first published in The Orange County Register.

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