TABLE OF CONTENTS I. INTRODUCTION 57 II. COUNTER SPEECH AND THE FIRST AMENDMENT: ASSUMPTIONS, 60 APPLICATIONS, AND CRITIQUES A. THE COUNTER SPEECH DOCTRINE IN PRACTICE 62 B. CRITIQUES OF COUNTER SPEECH 66 III. HOW TECHNOLOGICAL CHANGES UNDERMINE THE COUNTER SPEECH 68 DOCTRINE A. THE RELATIVE PROMINENCE OF TRUE VERSUS FALSE NEWS 68 B. DIMINISHED GATEKEEPING AND DISTRIBUTION BARRIERS 71 C. INCREASED ABILITY TO TARGET THE MOST IMPRESSIONABLE 74 D. THE DIMINISHED LIKELIHOOD OF BEING EXPOSED TO FACTUAL 77 COUNTER SPEECH E. THE DIMINISHED ABILITY TO DISTINGUISH BETWEEN 79 LEGITIMATE AND FALSE NEWS F. THE ENHANCED SPEED AT WHICH FALSE NEWS CAN TRAVEL 85 IV. IMPLICATIONS 87 A. THE FIRST AMENDMENT AND FALSITY 87 B. MARKET FAILURE IN THE MARKETPLACE OF IDEAS 88 C. THE 2016 PRESIDENTIAL ELECTION AS MARKET FAILURE CASE 93 STUDY D. THE FUTURE OF COUNTER SPEECH AND THE MARKETPLACE OF 97 IDEAS V. CONCLUSION 103 I. Introduction
The results and aftermath of the 2016 U.S. presidential election have brought increased attention to the dynamics of the contemporary news and information ecosystem and how these dynamics affect citizen knowledge and political decision-making. specific points of focus have included the extent to which algorithmically-driven search and social media platforms are facilitating the construction of "filter bubbles" or "echo chambers", (1) the presence of political bias in content curation platforms, (2) the extent to which such platforms facilitate the widespread dissemination of false news stories, (3) and inflammatory political advertisements placed by foreign governments. (4) These phenomena interact in ways that have raised significant concerns about the nature of the relationship between contemporary news and information channels, as well as the effective functioning of the democratic process. (5)
In 2013, the World Economic Forum presciently highlighted "massive digital misinformation" as a leading global risk in its annual global risk assessment. (6) In 2016, renowned fact-checking organization PolitiFact declared "fake news" its Lie of the Year. (7) Nonetheless, at least in the U.S., issues of misinformation in the digital sphere have only very recently found their way onto the communications policy agenda. (8)
This somewhat sluggish response can be explained, at least in part, by a First Amendment tradition that has valorized the notion of "counter speech." A central tenet of the First Amendment is that more speech is an effective remedy against the dissemination and consumption of false speech. (9) The counter speech doctrine is a perspective that was first explicitly articulated by Justice Louis Brandeis in Whitney v. California. (10) Since then, the effectiveness of counter speech has become an integral component of most conceptualizations of an effectively functioning "marketplace of ideas," in which direct government regulation of speech is minimized in favor of an open and competitive speech environment. (11)
This Article seeks to unpack the set of assumptions about the dynamics of the production, dissemination, and consumption of news that are embedded in the counter speech doctrine. This Article then questions whether these assumptions remain viable in the face of the evolving structure and operation of the contemporary media ecosystem: and if not, what this means for contemporary media law and policy. specifically, this Article argues that conditions, such as the structural and economic changes that have affected the news media, increased fragmentation and personalization, and increasingly algorithmically-dictated content dissemination and consumption, affect the production and flow of news in ways that may make it more difficult than it has been in the past to assume that legitimate news will systematically win out over false news. Thus, just as it has been asked whether the assumptions underlying the second Amendment right to bear arms (written in the era of muskets and flintlocks) are transferable to today's technological environment of high-powered, automatic assault weapons, (12) it may be time to ask whether this fundamental aspect of First Amendment theory, crafted in an era when news circulated primarily via interpersonal contact and print media, and in which electronic media were just beginning to develop, is effectively transferrable to today's radically different media environment.
In addressing this issue, Part I will review the counter speech doctrine, its underlying assumptions, the ways that it has been put into practice in legal and policy decision-making, and the critiques that have been leveled against it. As Part 1 will illustrate, the focal points of these critiques have been the psychological and behavioral barriers to counter speech, as well as the resistance of certain types of speech to the effectiveness of counter speech. Missing from the counter speech dialogue, however, has been a substantive consideration of whether the evolution of the media ecosystem has progressed in ways that might affect the validity of the doctrine.
Part II then will provide an overview of the profound technological changes that have affected the media ecosystem and media users over the past two decades. While most of these changes are widely recognized, this section will argue that each of these developments bears directly on the integrity of the counter speech doctrine. specifically, this part will illustrate that technological changes have: 1) affected the relative prominence of the production of true versus false news; 2) diminished the gate keeping barriers that have traditionally curtailed the production and dissemination of false news; 3) increased the ability
of those producing false news to target those most likely to be receptive to/affected by the false news; 4) diminished news consumers' likelihood of being exposed to accurate news that counteracts false news; 5) diminished news consumers' ability to distinguish between true and false news; and 6) enhanced the speed at which false news can travel. Each of these six conditions contributes to undermining the extent to which counter speech can effectively operate as a fundamental assumption of First Amendment theory.
Finally, Part III will consider the broader political, legal, and policy implications of this argument. In particular, this part will consider what the diminished efficacy of counter speech might mean for the understanding of the marketplace of ideas metaphor and the potential for failure in the marketplace of ideas. The results of the 2016 presidential election will be used to examine possible causes and indicators of such market failure. This part will conclude with a consideration of the legal and policy implications of a media ecosystem in which the counter speech doctrine has been undermined due to technological change.
Counter speech and the First Amendment: Assumptions, Applications, and Critiques
The counter speech doctrine was first formally articulated by Justice Louis Brandeis in Whitney v. California. (13) According to Brandeis, "[i]f 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." (14) This perspective is in many ways a natural outgrowth of the well-known "marketplace of ideas metaphor", (15) which has served as a fundamental principle in communications law and policy, (16) but has been subject to substantial critique in its own right. (17) As Justice Holmes' famous articulation of the marketplace of ideas metaphor asserts, "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market." (18) Under this formulation, the ideas marketplace is inherently capable of distinguishing between truth and falsity and can be counted on to accept and act upon true information and reject false information. This process is, in turn, fundamental to the well-functioning democracy that, according to many interpretations, the First Amendment is intended to protect. (19) Today, Holmes' statement is echoed within more contemporary notions of the "wisdom of crowds" (20) or "the wealth of networks." (21)
Counter speech is an outgrowth of this marketplace of ideas framework. Given the metaphor's assumption that the marketplace is capable of effectively distinguishing between truth and falsity, (22) then a speech environment that facilitates as much speech as possible is a potentially effective way of assuring that truth prevails over falsity, and that the good ideas prevail over the bad ones. "More speech" (i.e., counter speech) thus becomes an effective and First Amendment-compliant approach to assuring that individuals have the information they need to be informed and effective participants in the democratic process.
There are a number of fundamental assumptions that underlie this perspective. First, there is the assumption that individuals are capable of discerning between true and false information. (23) The logic here is that, just as participants in the traditional product market are capable of distinguishing between high and low value products, participants in the idea market are similarly capable of distinguishing between true and false news and information. A second, related, assumption is that participants in the idea marketplace place greater value on true news and information than they do on false information. (24) This assumption strikes at the core of what it is the marketplace actually values. A third assumption is that, as late U.S. Supreme Court Justice Antonin Scalia has stated, "[g]iven the premises of democracy, there is no such thing as too much speech." (25) A fourth assumption that underlies the counter speech doctrine is that a sufficient number of those exposed to false information also will be exposed to the countervailing true...