The Epistemology of the Internet and the Regulation of Speech in America

• Author: Brian Leiter
• Position: Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy & Human Values, University of Chicago
• Pages: 903-935

The Epistemology of the Internet and the Regulation

of Speech in America

BRIAN LEITER*

ABSTRACT

The Internet is the epistemological crisis of the 21st century: it has funda-

mentally altered the social epistemology of societies with relative freedom to

access it. Most of what we think we know about the world is due to reliance on

epistemic authorities, individuals, or institutions that tell us what we ought to

believe about Newtonian mechanics, evolution by natural selection, climate

change, resurrection from the dead, or the Holocaust. The most practically

fruitful epistemic norm of modernity, empiricism, demands that knowledge be

grounded in sensory experience, but almost no one who believes in evolution by

natural selection or the reality of the Holocaust has any sensory evidence in

support of those beliefs. Instead, we rely on epistemic authorities—biologists

and historians, for example. Epistemic authority cannot be sustained by empiri-

cist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool

of propagandists, appeals to ordinary faith in the senses, but is easily exploited

given that most people understand neither the perils of induction nor the finer

points of sampling and Bayesian inference. Sustaining epistemic authority

depends, crucially, on social institutions that inculcate reliable second-order

norms about whom to believe about what. The traditional media were crucial,

in the age of mass democracy, with promulgating and sustaining such norms.

The Internet has obliterated the intermediaries who made that possible (and

in the process, undermined the epistemic standing of experts), while even

the traditional media in the U.S., thanks to the demise of the “Fairness

Doctrine,” has contributed to the same phenomenon. I argue that this crisis

cries out for changes in the regulation of speech in cyberspace–including

liability for certain kinds of false speech, incitement, and hate speech—but

also a restoration of a version of the Fairness Doctrine for the traditional

media.

* Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy &

Human Values, University of Chicago. I am grateful to Laura Geary, UChicago Law Class of 2023, for

excellent research assistance and to the Alumni Faculty Fund of the Law School for nancial support.

Gabe Broughton, UChicago Law Class of 2013 (now a PhD student in philosophy at Princeton), gave me

typically incisive written comments on an earlier draft. I am also indebted to philosopher Richard

Stillman, UChicago Law Class of 2024, for helpful discussion of an earlier draft. Later versions

benetted from comments and questions at the Georgetown conference on “The Ethics of Freedom of

Speech” and a work-in-progress talk at the University of Chicago Law School. My thanks in particular

to Omri Ben-Shahar, Ryan Doerer, Bridget Fahey, Jessica Flanigan, John Hasnas, Todd Henderson,

Saul Levmore, Anup Malani, Jonathan Masur, J.P. Messina, Martha Nussbaum, Randy Picker, Eric

Posner, Joseph Schieber, and Geof Stone; apologies to those whose help I forgot! © 2022, Brian Leiter.

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TABLE OF CONTENTS

I. INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904

II. EPISTEMIC AUTHORITY .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906

III. THE COLLAPSE OF EPISTEMIC AUTHORITY IN THE UNITED STATES:

FROM THE DEMISE OF THE FAIRNESS DOCTRINE TO THE INTERNET . 908

A. The Fairness Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908

B. The Traditional Media After the Demise of the Fairness

Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916

C. The Internet’s Contribution to the Epistemic Crisis . . . . . . . . 918

II. SOME FREE SPEECH PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . 921

III. WHAT IS TO BE DONE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922

A. How to Filter—The Internet . . . . . . . . . . . . . . . . . . . . . . . . . 926

B. How to Filter—Traditional Media. . . . . . . . . . . . . . . . . . . . . 931

C. Can We Trust the Government to Filter Correctly? . . . . . . . . 932

IV. ARE THINGS REALLY WORSE NOW? .. . . . . . . . . . . . . . . . . . . . . . . 933

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934

I. INTRODUCTION

The Internet is the epistemological crisis of the twenty-first century: it has fun-

damentally altered the social epistemology of societies with relatively free

access. By “social epistemology,” I mean the ways in which a society tries to

inculcate in people knowledge about the world, and about what is purportedly

true, real, etc. Social epistemology’s domain includes the mass media, the courts,

the educational system, and so on. What the vast majority believe to be true about

the world is obviously crucial for social peace and political stability, whether or

not the society is democratic.

In developed capitalist countries, these social mechanisms have, until recently,

operated in predictable ways: they ensured most people accepted the legitimacy

of the existing state of affairs, acquiesced to the economic hierarchy in which

they found themselves, accepted the official results of elections, and acquired a

range of true beliefs about the causal structure of the natural world and the regu-

larities discovered by physics, chemistry, the medical sciences, and so on.

Although ruling elites throughout history (vide Thucydides, Machiavelli, Marx)

904 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:903

have always aimed to inculcate moral and political beliefs in their subject popula-

tions conducive to these elites’ continued rule, it has also been true, especially in

the world after the scientific revolution, that the interests of ruling elites often

depended on a true understanding of the causal order of nature. One cannot

extract wealth from nature, let alone take precautions against physical or biologi-

cal catastrophe, unless one understands how the natural world actually works:

what earthquakes do, how disease spreads, where fossil fuels are and how to

extract them, and so on. In the half-century before the dominance of the Internet

in America (roughly, since WWII), the primary mechanisms of social epistemol-

ogy generally helped ensure that a world of causal truths was the common cur-

rency of at least some parts of public policy and discourse in the relatively free,

relatively democratic societies.

1

The Internet has upended this state of affairs (although it has had significant

help in America, as we will see below, from the traditional media after the demise

of the “Fairness Doctrine”). To be sure, social epistemologists never celebrated

the epistemic quality of the pre-Internet social mechanisms of belief inculcation,

2

but in the Internet era, earlier doubts may seem trivial. The Internet is the social-

epistemological event of our time, locking into place mechanisms that ensure

tens or hundreds of millions of people will have false beliefs about the causal

order of nature —about climate change, the effects of vaccines, the role of natural

selection in the evolution of species, and biological facts about race—even when

there is no controversy among those with expert knowledge. Indeed, a distin-

guishing and dangerous achievement of the Internet era has been to discredit the

idea of “expertise,” the idea that if experts believe something to be the case, that

is a reason for anyone else to believe it. Experts, in this parallel cyber-world, are

disguised partisans, conspirators, and pretenders to epistemic privilege, while the

actual partisans and conspirators are supposed to be the purveyors of knowledge.

We shall return to the collapse of epistemic authority, below, and its alarming

consequences. Donald Trump as President of the United States was only the most

vivid symptom of the catastrophe, and perhaps of what is yet to come. This epis-

temological crisis, I argue, cries out for a change in the regulation of speech—

especially, but not only, speech on the Internet—in order to avert worse out-

comes. At the same time, we should not succumb to the illusion that the Internet

is the root cause of problems like Trump: it is more likely that the epistemologi-

cal disarray, which I document below, is also fueled by fundamental socio-

1. There were, of course, exceptions: the panic over fluoridation of water in the 1950s is the most

obvious example, but it was also anomalous. Even false claims about race and gender (that were very

widespread in the traditional media until the 1950s) were met with more resistance from the pre-Internet

media, especially from the 1960s onwards.

2. See, e.g., ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 161–88 (1999) (discussing the

media); LARRY LAUDAN, TRUTH, ERROR AND CRIMINAL LAW (2006) (discussing the courts and rules of

evidence).

2022] EPISTEMOLOGY OF THE INTERNET AND SPEECH REGULATION 905