The First Amendment: Your key to tackling misinformation

Feb 16, 2023 by Casey Mattox

“Misinformation” keeps making headlines. Of course, that’s been true pretty much since Adam and Eve struck up a conversation with a snake. “Misinformation” goes along with human beings having the ability to speak. Nonetheless, there has been a renewed attention on misinformation in recent years.

The Wall Street Journal recently reported on a federal judge blocking a California law that punishes doctors for spreading “misinformation,” ruling that the policy violated the First Amendment:

“Who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)?” Judge [William] Shubb wrote. He also asked what sources doctors should consult to determine the consensus.

Bravo, Judge Shubb. Had this California law been in place in 2020, physicians who argued schools were relatively low risk for children could have lost their medical licenses over saying something that we now acknowledge to be true. But more fundamentally, the judge is asking the right questions about how to handle misinformation.

The truth about misinformation

“Misinformation” is not an exception to the First Amendment, and the government – being simply a collection of other human beings – is not a good arbiter of truth. Nor is the government particularly responsible with the power it already holds. Yet some people would like our government to grab even more power, by providing it with the power to determine what is and isn’t the truth and to use that power to silence or punish those who do not agree with the government’s truth.

As I’ve said before, history repeatedly confirms that it is dangerous and counterproductive to entrust the government with determining what truth is — and especially with government then putting its power behind enforcing that truth.

First of all, power does not remain with one party forever, so you should never entrust the politician you like with power that you wouldn’t trust the politician you dislike to wield. Secondly, the best way to find truth — however messy — is by testing ideas in the public square. Free speech is how we make progress. When you shut down debate, you shut down progress.

This has all happened before… and will happen again

Much of the current panic about “misinformation” stems from the fact that technological progress has made it so much easier for us to communicate with one another. That naturally means more people saying things that help other people improve their lives and more people claiming the moon landing never happened.

With every invention that expands our universe of knowledge, there is a corresponding panic about the related dangers. And in the past, people asserted that the television, newspapers, books, and other forms of media were agents of misinformation or would otherwise end civilization as we know it.

One of my favorite Twitter accounts, Pessimists Archive, does an excellent job of highlighting previous panics over different types of media.

1889 Professor warns of new media consumption:

“too many newspapers, too many magazines, too many reviews, too many books” & “the disease of the age was distraction, hurry, interest in far too many things, with the consequent result of mental indigestion & muddle-headedness.” pic.twitter.com/868a7KuFJP

— Pessimists Archive (@PessimistsArc) November 2, 2019

Just one example of the concern over new types of media and too much information. There are more examples from 1858, 1913, and 1938.

Humans are resilient; we’ll adapt, as we always do.

And those who grow up with social media will come to see and use it differently than those of us (ahem) who remember a life before it (we had Saturday morning cartoons).

In fact, you may recall a poll conducted by YouGov and Americans for Prosperity last spring about Americans’ concern over the state of their civil liberties and their trust in public leaders. We asked participants what government should do about COVID misinformation online. We learned that 18- to 25-year-olds are least likely to support censorship of “misinformation”!

The kids may be all right, after all.

A few final quick thoughts and hits

Earlier this week, much of the world celebrated Valentine’s Day. What I want to know is, why does no one ever write love notes to the First Amendment and free speech? Hallmark is missing a real opportunity here.
On Monday, our country will celebrate Presidents Day (which, I’ll remind you, is still George Washington’s birthday, as it should be, in federal law). But one thing worth celebrating on Presidents Day is that at least our early presidents recognized the importance of free speech enough to protect it in the Bill of Rights (even if they themselves didn’t always live up to this lofty ideal).
SPIN published a fantastic interview with FIRE Executive Vice President Nico Perrino, titled “Defending Free Speech Is A Dirty Job But Someone’s Gotta Do It: Talking The First Amendment With Nico Perrino of FIRE.” Be sure to check it out!