Who Will Watch the Watchmen?

The Perils of Clamping Down on “Disinformation”

by Jon Zobenica and Benjamin Schwarz

In April, The Atlantic and the University of Chicago’s Institute of Politics cohosted a three-day conference titled “Disinformation and the Erosion of Democracy.” Topics of discussion included how and whether to regulate social-media companies; the pernicious influence of deep fakes and algorithms; the dangerous allure of conspiracy theories; national security; Russia; the storming of the Capitol on January 6, 2021; and the implications of all this for free speech.

Guest speakers included such politicians as former President Barack Obama—who, to judge from his remarks at the conference and in his subsequent speech at Stanford titled “Disinformation Is a Threat to Our Democracy,” is particularly taken with this issue—Senator Amy Klobuchar, and Representatives Adam Kinzinger and Lauren Underwood; plus an assortment of academics, authors, journalists, activists, intelligence veterans, computer scientists, and others. But save for one speaker on stage, the moderators and guests sheepishly avoided the central dilemma the conference seemed to raise. Panelist after panelist, in session after session, highlighted with confidence the many and varied problems surrounding misinformation, disinformation, and the ungoverned dissemination of information in general in the internet age. Many asserted and agreed that the problem now posed by disinformation is unprecedented. Many also asserted and agreed that owing to this unprecedented problem, American democracy is facing its greatest ever existential threat (1/6 apparently bests 1861 in this regard). But few dared to much more than gesture toward solutions, likely because the solutions anyone could conceive of would erode democracy more (and more quickly) than the supposed problem itself.

Examples of free speech gone wrong abounded, as did examples of free and open media platforms being put to nefarious purposes. In a conversation with the political consultant David Axelrod about current acts of Russian disinformation, the journalist and historian Anne Applebaum talked of how even the old USSR disseminated disinformation by cleverly seeding and laundering it through a free and open western press. Neither she nor Axelrod thought to note that this was essentially the same method used by the George W. Bush administration to gain credibility for the Iraq-weapons-of-mass-destruction story in 2002–2003: by having proxies seed it anonymously in the New York Times, with the help of a cooperative journalist, thereby allowing the administration to cite the Times as a credible and independent entity corroborating what was (of course) nothing more than the administration’s own seeded talking point. The consequences of this well-placed, effectively laundered misinformation (if not disinformation) were hardly insignificant. Years of war, human misery, and damage to the credibility of both the Times and the country ensued.

Ironically, one of the hosts of the conference, The Atlantic’s editor in chief, Jeffrey Goldberg, has himself stood accused of trafficking in Iraq misinformation, for reporting he’d conducted while serving as a New Yorker staff writer in the lead-up to the 2003 invasion. That reporting, his critics have credibly demonstrated, amounted to little more than stenographically recording fabrications regarding links between Al-Qaeda and Saddam Hussein. Goldberg’s articles containing those fabrications were essential evidence in George W. Bush’s and Dick Cheney’s case for war against Iraq. Goldberg wasn’t the only promulgator of disinformation at the disinformation conference: As a Washington Post reporter in December 2002, Barton Gellman, one of the conference’s moderators and an Atlantic contributor, erroneously contended that Iraq had supplied Al-Qaeda with a nerve agent. Most of the evidence for that false claim had been fed to Gellman by Bush administration officials; Gellman’s story was so thin that it elicited the criticism of the Post’s own ombudsman. Disinformation such as that which the Bush administration was peddling and which Gellman was parroting encouraged Congress and the public to support a war built on falsehoods and exaggerations.

The push for that war, of course, was not the first instance of American hawkishness relying on a compliant press in order to rally public opinion around dubious if not outright concocted assertions. Think, for example, of the Gulf of Tonkin incident and of the sinking of the Maine, which—respectively—helped catalyze America’s entry into the Vietnam War and the Spanish-American War. (The Gilded Age form of dis-/misinformation called “Yellow journalism,” the U.S. State Department’s Office of the Historian helpfully reminds us, was “a style of newspaper reporting that emphasized sensationalism over facts” that “helped push the United States and Spain into war in Cuba and the Philippines, leading to the acquisition of overseas territory by the United States.”)

Indeed, much of American foreign policy since the 1890s can be seen as built on disinformation, whether one views those policies as wise or foolish, prudent or dangerous. After all, Woodrow Wilson rallied Americans to support the U.S. intervention in the First World War through a mixture of distortions, specious slogans, and the ruthless crushing of dissent. FDR, though he claimed to embrace the neutrality that a great majority of Americans favored, in fact surreptitiously sought, long before Pearl Harbor, to maneuver the United States into the Second World War, through a series of initiatives that he hid from, and mischaracterized to, the American people. The Truman administration followed Senator Arthur Vandenberg’s advice to Secretary of State Dean Acheson to “scare hell out of the American people” by, in Acheson’s words, painting a picture “clearer than the truth” regarding the Soviet menace in order to win public support for enormous defense increases and for the new and sweeping global role the administration perceived to be in America’s interest. In the 1960 presidential election, John F. Kennedy had cynically attacked Richard Nixon from the right, by misleadingly claiming that the Eisenhower-Nixon administration had allowed a dangerous “missile gap” to grow in the USSR’s favor. In fact, just as Eisenhower and Nixon had asserted—and just as the classified briefings that Kennedy received as a presidential candidate indicated—the missile gap, and the nuclear balance generally, was overwhelmingly to America’s advantage. And as the Pentagon Papers abundantly revealed, from the first deployment of American advisors through the beginning of the bombing campaign against North Vietnam to the decision to deploy ground troops and the subsequent ramp-up of the ground war, the American government and national-security bureaucracy consistently misled Congress and the American public about the the prospect of “success” in the Vietnam War and the blood and treasure that the war would demand. In short, the threat and the woeful consequences of disinformation are hardly unprecedented, and the wily Russians need not even be involved. The United States is perfectly capable of finding itself the victim of homegrown misinformation and disinformation campaigns.

The irony revealed in this chronicle is heavy: Not only has the U.S. government regularly issued disinformation, but those dissenters and skeptics who rightly questioned or disputed the government’s dissembling orthodoxy would themselves, according to the criterion of the speakers at the democracy and disinformation conference, be charged with spreading disinformation and misinformation, since their views and arguments departed from the views and version of events certified by officials, experts, and the establishment press.

Less dramatic but still significant examples abound. For instance, the Hunter Biden laptop story—now acknowledged to be true by even the New York Times and the Washington Post—was loftily declared disinformation by the prominent social-media platforms (which barred postings asserting its veracity) and by nearly all of the establishment press (which disdained even covering it)—including, of course, the Times and the Post—and was dismissed as almost certainly Russian disinformation by 50 former high-ranking intelligence officials. Was the insistence on its inauthenticity itself, as now seems arguable, a bit of disinformation—or at least politically motivated misinformation? Ditto the Covid lab-leak theory, which was treated peremptorily as disinformation until, with the change of presidential administrations, it wasn’t, making the original, peremptory take seem politically motivated and therefore of dubious truth and intention. The word disinformation is too often used to refer merely to disputed information, making its use, at least in some cases, a bien-pensant version of Trump’s shouting “fake news!”

One of the most consequential, recent acts of homegrown disinformation is the Russia-collusion story, which led to widespread investigations and which grew out of Democratic opposition research involving a suspect source feeding bogus testimony to the FBI. Talk about eroding democracy. Faith in the integrity of our electoral and party system suffered a tremendous blow because of many people’s eagerness to believe this tale, and the odd combination of pessimism and credulity that swept much of the country was only shared and amplified by our leading media outlets. One could have a three-day symposium on that tawdry episode alone, yet it went mostly if not completely unremarked among those speaking at the disinformation conference. (Although the foregoing examples of disinformation may have emanated from or been embraced by political progressives, of course the Right’s embrace of disinformation, which the conference speakers dwelt on nearly exclusively, is at least as ardent.)

Seeing what ails us as no less a technical than a sentimental problem, the panelists wanted to make sure everyone understood that the pace with which disinformation can now be disseminated via the internet and social media is in and of itself an unprecedented threat to social order, as is the profusion of potential disseminators. Again, it seemed not to occur to anyone at the conference that much the same thing was said about the introduction of the printing press . . . in the fifteenth century. Within decades of that invention, print shops were set up in hundreds of European cities, and the output of printed materials rose exponentially. Not all of those materials, of course, were congenial to the then-prevailing social, religious, and political orders. The advent of movable type radically democratized and diversified knowledge and learning, and shifted the planes of power. As the Yale historian Carlos M. N. Eire has put it, “No printing press, no Reformation.” Of course, no Reformation, no Counter-Reformation, and no wars of religion that racked Europe for more than a century, claiming the lives of millions. The pace of it all, in relative terms, was no less “problematic,” as we now like to say, than it is today. But there’s a reason why medieval (as in, the period ending in the fifteenth century) is typically used as a pejorative and why renaissance (as in, the period beginning in the fifteenth century) has a much more favorable connotation, and why even though bad ideas have been spread as surely as good by way of print, we consider book burning to be the very symbol of arch-reaction. It’s not just the destruction of the objects themselves; it’s the attempted suppression of what those objects contain: disfavored ideas and thoughts, free speech both expressed and received.

The “problematic” relationship between media diffusion and political instability—a “problem” that President Obama has warmed to, as is evident in his remarks at the conference and in his speech at Stanford—has prior examples in American as well as European history. To give just one: the number of newspapers (many of them openly, politically partisan) in the United States increased by 500 percent between 1776 and 1800, a period that partly coincided with vicious political factionalism between the Federalists and the Republicans, each of which sincerely thought the other was going to destroy the young country. The former accused the latter of being Jacobins, part of a mobocracy intent on undermining the nation’s fragile institutions. The latter accused the former of being secret monarchists and genuine elitists bent on betraying the very cause of the American Revolution. Each faction freely indulged in misleading characterizations and outright falsehoods in castigating the other. In this atmosphere of partisan-induced political collapse, and with the excesses of the French Revolution roiling in the background and causing further alarm (at least among Federalists), John Adams signed the notorious Sedition Act in 1798, to clamp down on anti-government “disinformation” that he and other Federalists felt was eroding democracy. 

Returning to the technical theme, however, speaker after speaker at the disinformation conference warned that social-media algorithms stoke division by giving us . . . more of what we want. And what many of us want, apparently, is division. If you like videos of cats chasing laser dots, Facebook gives you more of that. And if you like historical photographs of your favorite city, Facebook gives you more of that. But if you like being outraged over certain politicians or public figures, certain political parties or movements, certain subcultures and social trends, Facebook gives you more of that. In the last case, addiction to outrage ensues, leading to a host of political, social, and cultural pathologies. No doubt this is all true. But are we to treat information like a controlled substance and social-media companies like drug traffickers? Do we need a war on information akin to the war on drugs, to somehow manage the supply in order to save us from our own insalubrious broadband appetites? Whom would we entrust with that task—coders at the selfsame social-media companies who devised the algorithms in the first place? Government regulators? How could we, as an admittedly divided society, even agree on which official or which entity was trustworthy and impartial enough to be deputized with this task? Or would any attempt look to one side like a regulatory power play being perpetrated by the other side, and therefore be a cause of further division? Quis custodiet ipsos custodes?—who will watch the watchers? The dilemma is older than, well, the ancient Romans.

More than one speaker floated the idea of holding social-media companies accountable on grounds of product liability. The companies’ products cause “harm,” this argument goes, therefore the companies should be held liable, just like any company that puts a harmful or defective product on the market. But who gets to define harm, and therefore liability? Who gets to define defective, and by what standard? Such questions instantly return us to the beginning. Assuming we can even agree that there is a problem, who would be tasked with defining it, regulating it, punishing it? Whom would we trust to do so? Is there anyone—any entity—that we (in our patently divided state) could possibly agree on? Most important, who could even do so within the bounds of longstanding, even foundational legal principles? As Justice Robert Jackson wrote in the majority opinion in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics . . . or other matters of opinion.”

Speaker after speaker, in session after session, ran up against this dilemma and stopped. We should do something, they all seemed to say. But what that something was, no one could say with boldness or precision, beyond suggesting some fairly minor technical and/or regulatory adjustments along the margins. Alone among the speakers, the University of Chicago law professor Geoffrey Stone ventured courageously into the heart of the dilemma. “I think it’s important,” he said, “to understand why the Supreme Court has been so skeptical about allowing organizations or individuals to be held accountable for disinformation or misinformation, except in very narrow circumstances like perjury and fraud and defamation of an individual. When you’re talking about public speech, what the Court has been quite concerned about is, Do you trust the government to decide whom to prosecute?” Lest the implication be lost on the mostly liberal crowd of conference attendees, organizers, and speakers (many of whom were pondering whether free speech was an outdated nicety that could no longer be safely afforded in full, and many of whom might have felt that government incursion wasn’t terribly worrisome, given the current configuration of the federal government), Stone went on:

So imagine the Trump administration having the authority to decide what is false on social media. Do you want to give them the power to make that decision? . . . And so one of the fundamental insights that the Court has had is that of course truly false speech is damaging in lots of ways. But if we give the government the power to decide which speech—or which false speech—to prosecute, then we run an enormous risk of them completely restructuring public discourse, and allowing the false speech they like, and disallowing the false speech they don’t like . . . So a lot of the reluctance to go down this road is the fear that if you do this, you know, if you allow a politician who makes a false statement in running for reelection to be prosecuted for making a false statement, the government’s going to decide whom to prosecute. And they’re not going to prosecute candidates in their party. They’re only going to prosecute candidates on the other side. So that’s part of the reason why the Court has been so reluctant to go down this road—because they see an enormous danger from it that ultimately could threaten democracy in an even more serious way than what we have now.

More than one speaker at the conference brought up Justice Louis Brandeis, doing so invariably not to affirm Brandeis’s famous argument that (in essence) the best remedy for bad speech is more and better speech but, instead, to assert that Brandeis’s formulation had been rendered quaint and inoperative by a high-speed info-sphere in which bad ideas can flourish and succeed. (Examples given included Stop the Steal conspiracies and vaccine skepticism.) The speakers seemed to think that bad ideas had never flourished and succeeded in open societies in the pre-internet age; that Brandeis (in his supposed innocence, writing from what they viewed as the leisurely and harmonious days of yore) had implied that more and better speech would always, ultimately carry the day; and that since it doesn’t always carry the day in the hurly-burly of contemporary social-media environments, the idea needs to be reconsidered—and probably scrapped. Brandeis, in this view, had never had to grapple with such consequential matters as those being discussed by the conference attendees. The presumption itself was rather quaint.

Among the chasmic lacunae of this view, the attendees seemed unaware that somewhat before the age of social-media platforms—in 1710, in fact—Jonathan Swift identified the problem of the rapid pace with which mis-/dis-/malinformation is promulgated, the very problem they so bewailed: “Falsehood flies, and the Truth comes limping after it.” Throughout the eighteenth and nineteenth centuries variations on Swift’s complaint (including that folksy apothegm misattributed to Mark Twain, “a lie can travel halfway around the world while the truth is putting on its shoes”) were remarkably plentiful, which would seem to demonstrate that even this aspect of the problem that the conference speakers discern as new is in fact hardly novel.

In any case, here, at some length, is what Brandeis wrote nearly a hundred years ago in his concurring opinion in Whitney v. California:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones . . .

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If 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. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. 

A “fitting remedy,” as Brandeis well knew, isn’t always guaranteed to work, but that doesn’t make it any less fitting. If it did always work, there’d hardly be occasion for remedy. But in matters of public debate and dispute, the pursuit of technical or regulatory shortcuts for managing speech can be far more damaging—far more destabilizing—to the overall national health than the “evil counsels” those shortcuts aim to eliminate.

The problems discussed at the “Disinformation and the Erosion of Democracy” conference are hardly as unprecedented as many of the speakers declared; nor, of course, is the consequent temptation (evinced by many of the gathered luminaries) to consider trading liberty for order—or orthodoxy—in the face of unsettling change. But to make such a trade would be to erode democracy in the name of shoring it up, to declare the demos too cussed and corrupted—too misinformed—to be entrusted with the political system that bears their name.

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