Government Punishment Of Disinformation Is Fundamentally Antithetical To Democracy

tabletmag  |  The unavoidable problems with censoring disinformation have predictably plagued recent laws, including those touted as restricting pandemic-related disinformation in order to protect public health. As the Economist reported in February 2021, “Censorious governments are abusing ‘fake news’ laws,” invoking the pandemic as “an excuse to gag reporters” and to silence critics of pandemic-era policies. In February 2020, Amnesty International noted that Singapore’s 2019 law against “online falsehoods and manipulation” was “repeatedly used to target critics and political opponents.” The Singaporean government could not deny this, but instead claimed that the law’s consistent enforcement against opposition party members was a “coincidence.” To the contrary, these patterns necessarily result from restrictions on such a vague, broad category of speech, even in democratic regimes.

That is why the American Civil Liberties Union brought a 2020 lawsuit challenging disinformation laws that the government of Puerto Rico had recently passed for the asserted purpose of protecting public health and safety. One such law makes it a crime to share “false information” about the government’s post-pandemic emergency and curfew orders with the intent to cause “confusion, panic, or public hysteria.” Shortly after the law went into effect, the Puerto Rican government charged a prominent clergyman with allegedly disseminating false information on WhatsApp about a rumored executive order to close all businesses. In fact, only a short time later, the governor did issue such an order.

Even beyond the speech that disinformation laws directly stifle, these laws also suppress incalculable amounts of important expression, including information about the pandemic that could literally be a matter of life or death. That’s because the laws deter scientists and other experts from providing information to journalists, and journalists are in turn deterred from conveying information to the public, for fear of transgressing—or being charged with transgressing—the laws’ blurry boundaries. The ACLU’s complaint in the Puerto Rico case was filed on behalf of two prominent investigative journalists, who explained that “developing stories on matters of immense public concern are often complex, contentious, and murky,” and thus “inadvertent inaccuracies are inevitable even in the most thoroughly vetted reporting.”

Throughout the pandemic, we have witnessed constantly evolving and shifting views among expert individuals and agencies, as they steadily gather and analyze additional data. Yesterday’s life-endangering “disinformation” can and has become today’s life-protecting gospel. Recall, to cite only the most obvious example, the CDC’s changing edicts about mask-wearing.

Inherently subjective disinformation restrictions can easily be wielded for ulterior purposes, including to promote partisan interests. Consider, for instance, recent evidence that the Biden administration has been pressuring social media companies to restrict content that purportedly purveys disinformation about COVID, in light of allegations that the actual concerns may well involve politics at least as much as public health. Republican members of Congress have claimed that platforms have restricted “conservative” posts on issues related to the pandemic in response to pressure from administration officials, even though the posts contained no factual misrepresentations and simply conveyed perspectives with which the administration disagreed. Whether or not these claims are factually correct, it is true that the concept of disinformation is so open-ended that it could be deployed against particular communications for partisan reasons.

The inevitable manipulability of restrictions on disinformation is well illustrated by YouTube’s recent removal of a video for violating its “medical misinformation policy.” The video, which had been posted by New York Rep. Nicole Malliotakis, was of an August 2021 news conference in which she announced a lawsuit challenging New York City Mayor Bill de Blasio’s “vaccine passport” as an invasion of privacy and an unreasonable mandate on small businesses. Although Malliotakis supports vaccination, she believes that the mandate constitutes government overreach—a position that the Supreme Court might well end up sharing. After Malliotakis appealed YouTube’s removal, the company said that it was “taking another look” and ultimately reinstated the video, thus underscoring the inherent elasticity of the misinformation concept. Whether or not YouTube actually had a good-faith health reason for its initial removal of the video, the fact remains that the vague policy can easily be invoked as a pretext, masking other motives.

All the more reason, then, to be suspicious of even sincere attempts by public and private authorities to prevent the harm that disinformation can cause. Recall that Southern officials based their libel lawsuits against activists and journalists during the civil rights movement on the dissemination of inaccurate information. What we learned in that era is that disinformation is unavoidable in any vigorous discussion of fast-breaking public issues, and that making it punishable by law can only inhibit democratic debate. It’s time we relearn that lesson.