Journal of Free Speech Law, “What’s The Harm?” by Profs. Adam Enders & Joseph Uscinski


The article is Here’s how to get in touch with usIntroduction

As argued by Justice Brandeis Whitney v. California In 1927, a fundamental assumption of First Amendment law was that the best remedy to potentially harmful speech (including false and misleading speech) is “more speech rather than enforced silence.” This extended Oliver Wendell Holmes’ “free trade in ideas” model of speech where the ultimate good is achieved when people are allowed to exchange ideas freely in a marketplace, without fear of government sanctions (Nunziato, 2018). But the idea that a marketplace of unregulated ideas is the best for the public has been increasingly challenged, as our politics have become more contentious and polarized. Conspiracy theories could also spread unhindered via online networks.

The January 6 Capitol riot provides the most striking example of this current state of affairs:‌ Supporters of the sitting president, believing conspiracy theories about a stolen election (many of which were transmitted through social media), attacked the Capitol to disrupt the certification of the 2020 election. Of course, this is not an isolated incident—believers of conspiracy theories have been linked to numerous instances of societal harm. Supporters of QAnon, a conspiracy-theory-laden movement, have been involved in harassment, kidnappings and domestic terrorism (Bump, 2019). Those exhibiting beliefs in COVID-19 conspiracy theories—of which there are many—refuse social distancing, masking, and vaccination (Romer and Jamieson 2020), allowing the virus to spread unhindered. If conspiracy theories cause people to commit violent or other harmful acts, shouldn’t the federal government be responsible for preventing those harms?

Han (2017) 178). It is clear that conspiracies (and other similar dubious ideas), are subject to the existing jurisprudential principles regarding defamation and threats. One could easily argue that at least The following are some examples of how to get started: Conspiracy theories do not serve to promote healthy democracy, the marketplace of thoughts, or the search for the truth. Any harm caused by these conspiracy theories, whether personal or societal, outweighs their merits. But as with all other forms of speech, circumstances matter, and under current legal frameworks, only particular conspiracy theories—those that fall into one of the categories of low-value speech listed above—will be denied constitutional protection. Even intentional lies that are conspiracy theories will be protected.

A growing concern over the role of conspiracy theories in recent illegal and normatively unacceptable actions such as those described here has led some legal scholars (Sunstein, 2021; Han, 2017; Hay, 2019; Waldman 2017, Schroeder 2019, Thorson and Stohler 2017, etc.) to argue that they should be protected less under the First Amendment. They claim that the existing doctrine is outdated and not suited to alleviate increasingly grave social ills, in an age where ideas can travel faster and farther than ever before.

This is also the position of a number of policymakers (e.g. Klobuchar 2022). In recent years, members of Congress and the U.S. President have publicly reprimanded social media companies who promote conspiracy theories and other dubious views on their platforms. They called for these companies to “take additional steps” and admonished them for “killing” people (Bose & Culliford 2021). Congress has held hearings addressing the scope of conspiracy theories online, resulting in a number of proposals at the national and state levels to curb this type of potentially harmful speech vis-à-vis content moderation and legal penalties (Walker 2020; Riggleman 2020; Heilweil 2020). Sen. Amy Klobuchar (D-MN) sponsored a bill to remove the protections provided by Section 230 of Communications Decency Act if a platform algorithmically promoted health misinformation as defined by the Department of Health and Human Services (MacCarthy 2021).

In this paper, we argue that, from a normative perspective, laws restricting the dissemination of conspiracy theories should be permissible only if two conditions can be met:‌ 1) “conspiracy theory” can be specifically defined, and ideas can be, with minimal error, classified as conspiracy theories; 2) the causal impact of conspiracy theories on unlawful and otherwise dangerous behavior can be empirically demonstrated. In order to avoid viewpoint discrimination, the first condition must be met. The second condition is satisfied when there is a reasonable societal concern in preventing the speech.

In a review of interdisciplinary literature on the nature, epistemology and correlates of conspiracy theories, we show that neither condition can satisfy. In fact, centuries-old epistemological dilemmas prevent the concise definition and accurate categorization ideas as conspiracies.

We also challenge the premises that underlie the desire to create a new legal framework to deal with conspiracy theories. We argue, specifically, that conspiracy theories don’t pose a greater problem today than they did in the past. That social media and new communication technologies didn’t lead to an increase of conspiracy theorizing. And that the dangers posed by conspiracy theories are more apparent when political leaders use them, not private citizens.

We argue that, in many cases, conspiracy theories are protected speech. They can and have historically promoted democracy and the search for truth. This evidence not only precludes the construction of a legal framework designed to restrict conspiratorial speech, but it also shows how other proposals along this vein would capriciously and arbitrarily censor ideas based upon personal viewpoints. It would also cause a severe chilling affect, ensnare a greater amount of speech than stated intentions claim, as well as do little to prevent the harms that are to be prevented.

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