Liar in a Crowded Theater

[Music] [Music] [Music] for [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] thank you and Welcome to our book forum today at the KO Institute on Jeff Kip's lative book liar in a crowded theater freedom of speech in a world of misinformation my name is Jennifer hudon and I'm a technology policy research fellow here at the KO Institute I'm joined today by the author himself as well as two excellent panelists to discuss this topic more generally as well as this book in particular for those of you who are joining us online at the end of the conversation we will take questions both online and in person and you may join the conversation and submit questions directly on the event web page Facebook YouTube or on X formerly known as Twitter using the hash k1a before we start I'd like to introduce our panelist a little bit starting to my left we have Jeff Kip Jeff is an associate professor of cyber security law at the United States Naval Academy cyber science science department he is the author of four books and more than 20 academic Journal articles in 2019 he was named an Andrew Carnegie fellow by the Carnegie Corporation of New York to support his 2022 book his books include the United States of anonymous how the First Amendment shaped online speech and the 26 words that created the internet next to Jeff is Will Duffield who is an Adent scholar here at the KO Institute Center for represent of government where he studies speech and internet governance his research focuses on web government regulation and private rules that govern American speech online prior to becoming a policy analyst he worked at the KO as a research assistant to John samples and he has a ba from Sarah Lawrence College and and an MS in political Theory from the London School of Economics finally we're joined by Professor Katherine Ross Professor Ross is the Loyalty Alverson professor of law at the George Washington University law school she specializes in constitutional law with a particular emphasis on the First Amendment and family law professor Ross's books include a right to lie presidents other liars and the First Amendment and lessons and censorship how schools and courts subvert students First Amendment rights so I know this will be a very exciting and timely discussion most likely because Jeff you seem to have a unique ability to predict what the next big debate in online speech is going to be we saw this with your book on Section 230 we saw this with your book on Anonymous speech now we're here to talk about misinformation so what made you write this book now and and what should those of us who are uh focused on the issue of online speech perhaps be preparing for sure well thanks thanks for having me have to first give the disclaimer everything I say is only on my behalf not on behalf of the Naval Academy Department of Navy or Department of Defense and you'll probably understand within a few minutes of me talking why it's so important for me to say that um and in terms of why I wrote this book it actually originated from my previous books and in particular my book about section 230 um which I guess was published five years ago it feels like a few lifetimes ago um back when it was really hard to get an academic press to think that 230 was had enough of a market that anyone knew what it was because at the time it was more of an obscure Tech policy issue and not something that you would hear on the presidential campaign Trail but things have changed uh quite a bit and you had proposals since within those five years you've had dozens of proposals to change section 230 and uh some of them came from the right uh which was to sort of condition platforms 230 prot protections on their ability to on the ability of users to post unmoderated content um that wasn't really as much is where this originated from as from the criticism from the left which was primarily looking at how do we amend section 230 to stop speech that we don't like um speech like misinformation sometimes hate speech um and a lot of them were really legitimate concerns um but what I kept hearing time and again most frequently was misinformation and this was a very valid concern this is post 2016 post 2020 uh real concerns about the harms of misinformation and what I kept hearing was well if we didn't have section 230 then the platforms would be held accountable for misinformation and to a certain extent that could be true if there were a narrow category of misinformation like defamation because that I mean section 230 does shield platforms from defamation claims based on user content but what it doesn't do is Shield platforms for misinformation claims in general because there's no such thing and what I would point out time and again is that most of what we consider to be misinformation is constitutionally protected and I would get a lot of responses not particularly enthusiastic ones um but part some of what I got was well why is it protected and that's really what got me looking at writing this book is why do we why does the First Amendment protect misinformation and so that got me going down a lot of different rabbit holes uh about all the possible cases involving falsehoods possible falsehoods things we thought were false at one point but ended up being true at another point and I wanted to really uh do two things I I wanted to look at what is the extent of legal protections for false speech which is primarily the first amendment in the United States but also includes a number of common law doctrines things like substantial Truth uh as well as some statutes like fair fair report privileges that are sometimes codified in statute anti-s slap laws all of them allow to some extent legal protection both civil and criminal protection for things that are alleged to falsehoods and I wanted to look at rather than just sort of look at the doctrine I wanted to look at the reasoning so why do the courts uh protect false speech and there's obviously the marketplace of ideas framework is the most prominent but we have other reasons as well such as you know that there's always going to be some uncertainty as to what's true or false at any particular time you think about what we knew in the earliest days of the coid pandemic and what the government guided was and we were all washing our hands for five minutes at a time because the guidance was that Co was not airborne and in the United States at least we were able to still have those discussions and as the scientific consensus change so did the sentiment but we were able to discuss those opposing views you also think about the lab leak Theory and how that was considered pretty fringe at one point and now it's at least more of a standard portion of the debate about the origins of coid so um there are other reasons as well um there's a lot of stuff that's classified as misinformation which actually can be very harmful but it's not provably true or false it's really bad opinions but the courts over the years have said people have the breathing space to say those opinions um we also hold people responsible for how they receive speech so you know are you just going to believe misinformation are you going to believe falsehoods and if you do you might have to face some consequences and then finally um in many cases regulating false speech even if it is provably false and damaging uh in many cases you're not going to even address all of the harms that you're seeking to address from misinformation and the courts have recognized there's limits to the efficacy of misinformation so I wanted to really kind of go through the different threads of case to look at why we have those protections and apply that to current debates and then also look at what are possible solutions that go beyond regulation and I I I want to be clear I don't make the argument that the first amendment is absolute um I think probably if I did Hugo Black would probably be the only one who's ever agreed with me and he's dead so I I think I'm pretty safe that that's not going to I mean we H we have room for regulation we have you can't lie in court you can't lie to a federal agent uh companies face restrictions on the advertisements for their products and all of that I mean it the the point of that is that it's narrowly defined and the court has taken uh great efforts to make sure that there's clear guidance and that there's not just this General balancing test where we'll regulate everything that we think is harmful uh the Supreme Court has said we don't do that and that's unlike many other jurisdictions so um I wanted to look at that and then say well what are some areas in addition to regulation that we could be looking at and the bottom line I I try to be really transparent in the book none of them are perfect none of them are close to perfect um the but I don't think even with the most regulation possible you're going to be able to address all of these problems but I look at things that might help chip away and help make us a bit more resilient to misinformation so things like making people are more literate uh in terms of for media literacy so they can better evaluate the torrent of information they're seeing on social media uh improving Civics education uh having better access to counter speech uh giving platforms the leeway to moderate free of government pressure but I mean we have a case going to the Supreme Court right now where depending on how it turn turns out platforms might actually have less of an ability to independently determine what content that that they carry and I think that would be very dangerous um so again I don't think that and then finally I would say that the government building trust with the public I think that is very important and I think when you erode trust then misinformation can take hold more easily and I think there are some examples where the US government and other governments have actually built trust quite effectively but unfortunately there are many examples where just basic messaging and transparency and honesty would have gone a long way in having the public better accept what the government is saying rather than just reflexively believing uh nonsense that they see on the internet so that's kind of the motivation for the book and for the title um I'll say Katherine actually had the better title I I I I think that that's uh I if Katherine's book hadn't come out I probably would have titled it that because I think it really is a right to lie and I think there's a lot of uh value and saying what is the right to lie I title my title actually originated halfway through my research because as I was researching all of these cases where Court said to the government or to a plaintiff hey you can't hold someone liable for that we don't do that I I like looking at the briefs and the transcripts of the Court hearings in almost every single case there was a lawyer saying uh defending their proposed censorship by saying you can't yell fire in a crowded theater so therefore you also can't say this and usually you could say this so um a as I was writing it I just thought well if if I can't have a right to lie uh I will I I think liar tying it to the fire in a crowded theater I've got to do that because that is such a dangerous phrase and politicians lawyers the media use it whenever they want to justify regulation of speech so um that's kind of a higher level overview but I'm happy to talk about specifics yeah I know we'll get into some great specifics that that you just teed up in in terms of where this conversation is right now but Katherine and will i' I'd like to hear your thoughts both on the book as well as on this kind of issue more in in general of this kind of debate that's going on on misinformation I know you're both experts in this field what resonated with you most in this book and what did you think of of some of the ideas it proposes cine I'll start with you great before I start I just want to say I I had the opportunity to read the book in manuscript form and I emailed Jeff and I said the book was terrific fun to read and really wide ranging and well researched and I stand by those comments so I wouldn't put that out there um so we we um share a lot of the same uh values about why we should not be attacking the First Amendment or ignoring it as many people are tempted to do in our current climate and Jeff does a really good job of accomplishing his goal and explaining why we got to this point in our Doctrine what are the uh doctrinal theories underlying the premises of the First Amendment um whereas I focused more on what the First Amendment actually actually says about untruths and I was more limited in my scope to the uh lies that are about verifiable facts and and Jeff ranges more broadly to things that are um misleading and perhaps uh less susceptible to precise evaluation and one of the ideas I found most interesting and that he addressed just now is the uncertainty of about emerging um knowledge that we believe something to be verifiable or falsifiable today and then we learn more but I also think that's part of the whole notion of the marketplace of ideas that if we put a lot of ideas out there the Marketplace Homes assumed would usually reach the correct result and of course one of the great risks is that the marketplace buys the falsehood and not what is verifiable um but with respect to science in particular um we we do learn and adjust and so one of the questions we might want to ask about dealing with falsehood is what did you know at the time which I'm not adapting from the Congressional inquiry uh and impeachment Arena but rather was this something that scientists agreed was the principle and then in subsequent research we learn otherwise will we adjust our thinking and the principle of Truth and falsehood can only apply to what we now know and we we learn things and learning is good we have Paradigm shifts and some people are still saying you should wash your hands including the CDC um but I I want to suggest I'm very interested in Jeff's approach to what are some things we can do about uh untruths in various contexts and he has two chapters that address that one is primarily about political speech and things the government can do and of course one of the basic First Amendment principles which Jeff doesn't uh pinpoint exactly this way but the most forbidden thing is the government as the Arbiter of Truth so whenever there's a government regulation first the government has to say we officially declare one thing to be true and the other not to be true that's the underlying problem with any form of government regulation that attempts to address untruth and of course there's a lot of gray areas about what's true what's not true how we read it responsibility of readers but I wanted to take some of the things from his last chapter which is about what mostly private people can can do in responding to disinformation and misinformation and apply it to a very contemporary problem which is the disputes over the current war between Hamas and Israel so there are some facts that we know to be true and I dare say there are people perhaps in this room or watching this who would disagree with me in what I say are facts but the first is Hamas broke the ceasefire that had been in place when it crossed the border and massacred people sleeping in their homes and you know there are people saying never happened fake news AI or they're quibbling over sub whe the substantial truth were children actually roasted in ovens does that matter how many children were beheaded how many children were killed in front of their mothers after their mother's breasts were cut off well substantial truth Doctrine should govern here we shouldn't be arguing about those specifics of the 1400 people who died another fact is turns out Israel didn't bomb that hospital killing 500 people Hamas misfired a rocket and people continue to point to that event is it about or about something that you want to facts we're going to have questions later so um you know people keep posting about both of these things and talking about them publicly including members of Congress so what recourse and would these things that Jeff suggests help and I'm very frustrated at their ability to help in this kind of extreme situation so selfhelp more and better speech seems ineffective right now I'm trying to offer better speech I'm interrupted uh views are locked in people go to information silos both online and um in in what they read people are ripping down posters that's the heckers veto and here there's an interesting anecdote uh there was a YouTube of two young women ripping down posters in Brooklyn New York uh of the pictures of the hostages and um they were asked why are you doing that and they said because the posters are lies and they might provoke someone to commit an act of violence so we're trying to avoid Violence by ripping them down private litigation I don't think anybody has standing to talk about things like a tort intentional infliction of emotional damage um or defamation and even if they could it takes too long look at the recent Dominion versus Fox case the result came a long time after the damage was already done speech from the government yes the government can take sides and it can make clear statements so the government of the US has said you know we've concluded Israel didn't bomb the hospital we believe the tapes we have seen of the massacre I you can you can ask questions and make comments later well i' I'd like to to go ahead and bring will into this conversation I need one more minute um but that requir transparency and trust and citizen education all things that Jeff has talked about um and that leaves accountability which is really important that when people act illegally based on lies and disinformation they should be held to account by the criminal justice system so when these kinds of Lies lead to violence um whether assault murder um damage to property Etc they they should be punished the The Listener has responsibility well I know you've also done a lot of work on these kind of debates around online misinformation as well as kind of different tools available to the government I was curious you know what was your initial reaction to the book and and what particularly resonated with you well I really enjoyed the truth and and uncertainty chapters and you know Catherine and I didn't uh write our speeches together or anything but I just thought Jeff did such a wonderful job of illustrating the messiness of speech the kind of irrepressible ambiguity and subjectivity of human communication and showcasing all of the ways in which we use our speech you know not just to try to convince others but to express our own feelings to Showcase a part of ourselves and and how difficult that can be in the public Arena uh to quite interpret what someone is trying to do do to respond to it appropriately and to govern that kind of communication appropriately so I I think he does a great job at showing how the gaps between a speaker's intended message or purpose for speaking and how their expression is understood by listeners can generate controversy and litigation uh say how Alvarez's private braggadocious self- bolstering an Impulse we can all understand even if we don't quite take to the lengths of uh pretending to have a war record um Can in the context of local politics become a lie of public concern so as a result because he just does such a great job at at getting into what was said who who it rankled why it was controversial at the time his descriptions of the Contours of First Amendment jurist Prudence that emerge are immediately backed with compelling stories explaining why the law curves as it does here I particularly liked his description of the substantial truth Doctrine he uses an example that implicates not just conflicting contemporary accounts or opinionated descriptions of current events but memory how different persons recall things that might have happened many years ago in this case the musician Eminem's memories of being bullied and how they clashed with his childhood bullies memories of well bullying him but maybe not as harshly as Eminem remembered and this was the the subject of litigation and Eminem's account in his song um in which he mixed partially true experiences that had happened to him with embellishments for the sake of providing a good story creating an enjoyable experience for listeners and fully expressing how he felt about being bullied whether or not every described event occurred exactly as it did fits into this substantial truth Doctrine we can immediately see by virtue of this example why this is valuable not just to the speaker but to the public r large um you know if I would would offer any criticism here and and of these these kind of segments and examples it's that Jeff doesn't dig into the counterfactuals far enough what would the world look like if we can't have you know not just fewer weather forecasts but maybe constant couched Mayes and and uncertainty built into our weather forecast so that no one makes absolute decisions and puts themselves In Harm's Way on the basis of it or not just fewer songs about bullying but maybe only songs about bullying by people who never experienced it and therefore can't have a bully out there who can come in and and litigate what exactly was said what was done in middle school 20 years ago um so across these examples it really came through for me even when you know Jeff didn't explicitly spell it out in the book just what a more limited kind of grayer less interesting world uh we would live in under a stifling cludge of mandatory factchecking or couched mie statements um how long do we have to wait for books about mushrooms and cooking to come out if every publisher and republish her had to send a team out into the Wilds to check whether each mushroom was described accurately um there just be far too many veto points in society um or certainly around speech and as a result I um I I that that point just came through for me so well throughout those sections that speech is messy and uncertain we can't always be sure what is true and as a result both in the common law and in interpreting our constitution we've created this leeway to give speakers in Jeff words the necessary breathing room to speak and finally on truth if I still have a minute or so um the the question of not just what is provable uh what what is truth and how do we know it but when we know it um really came alive to me in in this manuscript uh he mentioned some of the coid examples where science corrected quite quite quickly um I think we went from from skepticism of masks to uh the government maybe pushing masks a little too hard in the course of a few months but it it doesn't always the process doesn't always self-correct quite as rapidly and that makes it all the more important that we protect speech which we aren't quite sure is true or seems like rumor uh James calender at early American writer pamphleteer and propagandist who appears in this book being potentially I think quite obviously paid off by our second president um had another uh publication around that same time about our second president which it took nearly 150 years or more uh to be proven true calendar was the first one to write about Thomas Jefferson's affair with Sally hemings and at the time this was I think dismissed in polite company is as nasty rybolt rumor uh probably didn't make it into the book because it wasn't litigated Jefferson's Camp kept awfully quiet about this um but for nearly 150 years biographers of Jefferson eminent historians kind of swept the whole thing under the rug ignored evidence that that proved um or would seem to prove the Heming story true and it wasn't until we got Jefferson's Farm book in believe the 1960s and all of the dates of Hemming's pregnancies matched up with well nine months before Jefferson who traveled all over the place had always been home at Montello and DNA testing is further proven that this you know nasty political rumor was indeed fact and our our American story has not just become more true but our understanding of this this Founding Father our second president is so much richer for it and the idea that you know today if something were like that were published and and truly or more effectively memor hold and not kept alive we could lose it entirely uh to me illustrates that that value of protecting things that we might think are false but history or or the future may prove us wrong thank you I'll just give the disclaimer that if you ever want to use an memin lyric in your book be prepared to pay a very large license fee um so I'm glad you mentioned that because it was a painful amount that I had to deal with for that so you know I it will make it resonate more with with some of us particularly in the millennial generation that that this is an example to to use um I I would like to to turn to the the panel in general we've heard the term First Amendment a lot in our conversation and that certainly is a a big part of this discussion when it comes to what's going on in the United States what if anything uh does or does not fall under the the First Amendment with some of these challenges we're facing however this is a global debate as as well and the context of online speech does not exist merely in the United States and it exists in places where there's a very different approach to speech than the first amendment I was wondering if our panelist could reflect a little bit on on some of the debates and some of the actions perhaps we're seeing around the ideas of misinformation globally and and how this framework uh Jeff you proposed may or may not work outside of a a US context yeah so unfortunately I don't know if the propose the protections that I advocate retaining uh many of them I don't know how long they would survive if at all in many other countries and I'm not just talking about places like Russia and other authoritarian countries but um we we have in the European Union they've always had a different balance between free expression and privacy and other values um but they have a law that went into effect this year called the Digital Services act which has a variety of components part the part that's most concerning is uh regulation of very large online platforms um and there's enough V vague language in it that um the government could at least have a lot of power over the speech on these platforms because the maximum fines are 6% of annual Global Revenue so that's a very large amount for any company and we there's this I I don't know how he got this power but there's this European commissioner who's in charge of business but he's not elected he was appointed by someone and basically almost every day now he goes onto Twitter and he threatens a platform with saying you know we don't like how you're dealing with disinformation or hate speech our team are waiting I mean some ominous thing and and I I just think that even if I I don't know if the what the DSA really was intended for I was assured by a lot of people who said they care about Free Speech you know this is all just procedural uh you're just being an American stop stop worrying about this and then within like weeks of this going into effect he starts threatening everyone I think other countries it's even more concerning they've passed fake news laws um over the past five years and um in some of the more authoritarian countries you've seen hundreds of people arrested for um criticizing the government and it so so it's uh I I a lot of the response that I get from people who aren't big fans of the protections that I'm defending is you know you're just kind of being hysterical uh you're being alarmist but you just have to look at other parts of the world and see you know if you give people in power more power um eventually they're going to abuse it and I so I look at all of that with a very cautious eye will to turn to you I mean Jeff's example sounds a lot like that regulation by raised eyebrow or or jaw boning you've talked about a lot what are what are your thoughts on some of the the perhaps sub regulatory actions like that that we're we're seeing I I think the difficulty is that abroad it can be formalized so job owning refers to informal government pressure to censor speech we've seen some issues with it in the United States it's come into Vogue recently as a as a concern however abroad it's been going on Visa these social media platforms for a bit longer but slowly formalized in a ratcheting fashion what was first a voluntary agreement between several American platforms and the European Union in I believe 2015 or 17 um has has since been formalized by various parts of the DSA to create binding obligations and as as Jeff alluded to there isn't a great you know they don't have a First Amendment um there isn't a clear recourse here for American firms that want to continue doing business abroad uh we could begin Geo blocking Europe but at the end of the day I don't think that um a viable solution and there are few ways outside of simply trying to punish Europe for behaving this way that America can effectively Shield platforms which have presences there if you have an office in Brussels or in in France um they can come and arrest people they can take your things away you're subject to their jurisdiction um and so I'm I'm broadly a free free Trader I I don't really want to see a ratcheting tarff War over this but I do think that might be the context in which we need to see these demands as uh non-ar tariff barriers to trade in this case the the sort of crown jewels of uh you know American cultural offering in in these platforms Katherine do you have anything you'd like to add uh just briefly I think the uh the First Amendment it would certainly be a bar to enforcing most of that act in the United States and the biggest gap between our regime and that in Europe and indeed in every other English-speaking uh democracy is our treatment of things like hate speech which is highly regulated in Europe and um that is one of the things th those kinds of falsehoods are one of the Prime targets of the European Union's uh um actions and we have seen uh that when they enforce the uh governmental laws against hate speech they often do so with an axe and not a scalpel and they often misunderstand humor and satire and they cut off and shell a lot of speech um so if our um if if the platforms that emanate from the United States and which are so important to the rest of the world are going to be regulated in Europe by fines much more than by arrests um it is really hard to separate what happens to them in Europe from what happens to them in the United States and this is not a new problem when we interpret speech that takes place all over the world I'm not sure I I havn't thought about the Tariff idea but it it is very hard to see uh how we protect rights in the United States for businesses that are engag engaged in what is regarded as speech internationally and and that's a major theoretical issue that we have yet to Grapple with a a quick thought on on hate speech there and something Jeff discusses in this book about disinformation and government Truth uh in in a liar in a crowded theater he argues that when government officials or or governments pronounce official truths deem one thing to be true over another it causes us listeners the population to doubt that official truth or any truths going around because what's being suppressed in in this world why did they pick that one over another uh there's this feeling of of unfair official favor and in the past month or so in in Europe um around this war in the Middle East I've seen a lot of those kinds of claims and concerns but around hate speech the idea that if the police haven't enforced a given hate speech statue against this flag or that or that statement or this then it it amounts to or illustrates the government's favor for one side or another and I think in most cases there isn't any explicit uh attempt to favor one side over the other but instead just idiosyncratic enforcement there happen to be a cop on this corner but not on that uh but the ultimate effect is for people to have less faith that the government is on their side that the law is neutral and applies to everyone um and I think we we see a similarly unhealthy Dynamic there as when the government attempts to police disinformation or cement official truths and in doing so undermines faith in truth as a concept we've talked a lot around the policy discussion and the concerns about the the potential impact on speech from from policy makers I kind of want to raise this question of if an individual user or platform is concerned about the idea of misinformation we've talked a lot about the the marketplace of ideas I'm curious what advice would our panelists have for those platforms or users who are concerned on a personal level and are are looking at options other than government intervention on this issue well I I think that you're seeing the market play out a bit in platforms I think now more than a few years ago having Divergent policies on a lot of these things so the platforms are free to set their own policies and independent of government on things like hate speech and misinformation and they all do and uh I mean obviously X or Twitter has a very or some somewhat different policies than it did a year ago and that's its right uh I mean it can do that and that's a business choice and the sort of the the theory under both the First Amendment and how section 230 was structured is that platform make these choices and if they make choices that most of their users don't like then they'll suffer I mean it's not uh not a perfect model because we have a lot of economic issues like Network effects which make it more difficult for people to just easily leave a platform that all of their friends or co-workers are on but um I I think that that's a better way to go than having the government say okay this is the policy that all the platforms have to have um I think in terms of individual users I think that uh having their voices heard on platform's policies are really important there are some platforms more of the smaller and midsize platforms that do a better job in really democratizing their user policies and letting their users have a voice uh GitHub which is used by coders does a great job in and it's done it for a while where before they make changes they solicit and they really incorporate the feedback from their very uh frequent users so I think that's all important I think the job owning issue which has been mentioned briefly which and is going to the Supreme Court that also could have an important impact on uh platforms because I think it's important for the government to not coer coers not threaten platforms with retribution if they don't moderate or take down content I also think it's important that individual users have the abil to tell platforms uh you know I don't I don't like this sort of content or I do like this sort of content so I think it's going to be I I think that case is going to be incredibly important um for the future of online speech in the United States well I um I'd like to talk about two recent examples of misinformation that I came across on Twitter one very traditional and one native to the internet and I think these two cases illustrate how certain forms of Greater information density or bundling more information in a sticky fashion along with speech could help some of these disinfo problems so in the first someone had written a thread about alleging that Napoleon had in fact built the Great Pyramids now this seems ludicrous on on its face um and the thread well sort of in internally cerent uh crumbled apart when I Googled pre-nap accounts or depictions of the Great Pyramids and found that a French diplomat had in 1735 taken measurements of all of them and even published Books available in Paris of the the Great Pyramids so they're you know almost easier to disprove on the internet today than it would have been if you're crazy uncle had told you that in 1980 or something um because there's lots of available information external to the narrative being presented that allows you to disprove it now the second one a clip posted to Twitter but originally from Tik Tock showing a woman saying or asking the the viewer um whether they would defend their dog from someone trying to to steal it with lethal Force um when doing so is putting a dog's life above a human's life and this was sort of going being virally reposted um with with some criticism what is this you know ludicrous um humanist account that that causes us um or or criticizes us for defending our pets um and I noticed the handle from the original video down in the little corner it had been clipped and shortened but I was able to find it on Tik Tok and in the original the woman talking about putting a dog life above a human's life ends the clip by saying and if you do that I'll pay for your bail and she's a dog person and it was meant to be funny and that context has sort of been trimmed and collapsed as it moves off platform um where it becomes bait for criticism of the very attitude that the woman was was laughing about holding and to me this I was able to to get to the bottom of this but most users couldn't or or wouldn't because it was much harder to find that original video and to understand the full context than it was for me to just go Google accounts of pyramids before Napoleon but there's no reason that our video editing tools at the platform level can't include more robust information about what this video originally was and where it came from you might not be able to include the whole rest of the video people want to cut things but there's no reason you can't include a transcript alongside it a full transcript tag to the file that moves forward even when you cut it down or some kind of chain of custody as as things move from one platform to another um you know not everything is hyperlink today I think platforms often encourage you to upload things to keep it there to bring the views to their platform um but some form of of Link tracking um some way to add that additional context that was so easy to find in the pyramid example but so hard in the Tik Tock dog video would combat a lot of what makes viral online misinformation that relies on that loss of context uh much easier to to solve as a consumer first I have to say don't come after my dog I love my dog um but as a consumer I am thinking about how much of my day already goes into all of the material coming into my inbox in some old-fashioned ways into my mailbox magazines and things the newspapers and while I like your idea in theory I just can't see how I would begin to process all of these lines of information about what I'm looking at um um you know there there are just human brain limitations as well as uh time and um capacity uh limitations um so I'm also concerned you know decades ago the Supreme Court said once a lie is out there the truth can never catch up with it and they said that in the defamation context and that is even more true today because if you go on one platform and you say please take down this horrible statement or this deceptive statement by the time it's taken down somebody else has communicated it in many many other tweets or X's or whatever you want to call them and somebody else has moved it to YouTube or to Blue Sky and it's just out there and you're never going to catch up with it so uh you know I sound very pessimistic I am very engaged with Jeff's project that we find constitutionally sustainable responses but it is such a difficult problem there's so much more that I would love to dive into but before we turn over to audience questions shortly I have to ask because it wouldn't be a tech policy panel in the year 2023 if I don't bring up artificial intelligence and AI uh this seems to be the the kind of elephant in the room these days and so I'd love the panelist thoughts on how should we think about about concerns around misinformation and artificial intelligence is it as simple as Will's kind of example of what already exists when it comes to videos that can be edited and we and his example of of what was going on with his experience or is this some kind of new novel challenge that's going to require a new way of thinking about truth and misinformation well I think we need to be very careful about where we place the burden to deal with AI misinfo and I think starting off we may be putting it in the wrong place on the generative AI tools themselves which has problematic implications for speech or the use of these tools uh for expressive purposes coming out of peak platform World maybe 2016 2018 we have a set of expectations attending disin how to combat it who should combat it which might make sense for Facebook when they have a distribution network with 2 point some billion people in it we didn't have these expectations back when Photoshop came out in the late 90s and now as these generative tools come out and allow us on paper to create all sorts of wild images true false otherwise um you know maybe intended to mislead or simply intended for fun um we need to be very careful about taking expectations for platforms expectations that might be reasonable for distribution networks and placing them onto generative tools which aren't doing the publishing when I create an image in Dolly whether it's real fake whatever it's not automatically published anywhere I have to take it and upload it it to some platform or send it to someone and I think the onus to combat disinfo or slow the spread of false images should come in there not landing on Dolly to prevent me from creating a false picture of Napoleon building the pyramids in the first place yeah I mean I think it'll be great in 30 years when the Supreme Court addresses the question uh to get some answers but I I think there are some unique there's some unique issues and I mean I I come at it a lot from the defamation Arena and there have been a lot of really interesting questions about you know if AI defames you when you query your name um and it's bound to it has defamed people it has a lot of false information I when chat GPT came out I asked it for my bio and it said that I was an admiral who was the head of the Navy jagore which is a national security threat if that was the case but I mean that obviously is not defamatory but for other people there's much worse things they say they were involved in scandals um in terms of I I think the damage question especially if AI has a certain reputation of making these errors I think it raises some interesting just common law defamation questions as well uh I think you also have the section 230 issue which there was like a few weeks when I just every day I was getting a call from a reporter asking does section 230 cover AI like well it I mean that's there's not a yes or no answer especially because courts haven't weighed in but it's very case specific so um I think the one other issue for AI which is going to be really fascinating and this comes up in the sort of the foreign malign intelligence or information operations as well is that the Supreme Court has held there's a right to receive information so um I mean this goes back to the 1960s but even if you were to impose regulations on what AI can produce because you find that the AI doesn't have First Amendment rights um it still gets to what about the person who would be receiving it and what would their rights be so I mean that's a long way of saying that I I think that this is going to take a while to get sorted out but um I I think there are some other considerations that aren't being discussed as much just a couple of quick things um so Jeff touched on who's The Speaker with rights under the First Amendment and that's the the sort of starting question is it the person who set up the AI system is it the person who asked the question or instructed the AI program to spit something out making Jeff and Admiral congratulations uh or is it the person who then publishes the information by which I mean not your technical publisher but puts it out there to share with the recipients uh so that's that's sort of the first step uh my offthe cuff reaction is probably the publisher but there are steps before that as well well um in every case of a new kind of media going back to at least the 19th century uh the court has been asked to throw the First Amendment out and come out with a different form of analysis because this is just so dangerous and every time the court has declined and said no you know the first amendment applies to all modes of communication and I suspect that that's where they're going to come out now even though the details may be trickier than with these some of these other forms because and I'm no expert on AI or computers but I do think that uh from everything I read it is harder and harder every day to figure out what is fake in Ai and to distinguish it uh for the people with the technical uh equipment and skills and not just for the recipient of the information um so we may need some new tools that are consistent with with First Amendment Doctrine great well I would like to turn to some audience Q&A at this time uh for those of you who are in the room with us I am going to ask that you please uh speak clearly and directly into the microphone and that you also announce your name and affiliation uh before you ask your question so go former govern uh we talked about the hole where people go in like if you're o and you stay there 24 hours a day no outside light ever comes in um when is there a point at which we can say the market place of ideas is it's an obsolete concept it no longer applies I I I don't think it would turn on you know how much of any one market good some uh listener decides to consume um you know I think we can look at at lots of other products that people over consume whether it's video games or certain kinds of food and we don't see those markets as broken just because someone's preferences are are a little out of whack um I do think that shows us something about disinfo and how we should approach it um or where the responsibility for acting on it should should lie that Jeff gets into in his book um we rarely uh believe or certainly don't listen to for 12 hours a day to misinformation that we don't already agree with um and and so when we're looking at how people act after em bibing misinfo um we need to understand that you know they had a reason to believe hold hold these um views in the first place and their actions are their for on them in the same way as choosing to consume this sort of media for hours on end is is on them I'd like to turn to one of our online questions to to make sure I'm kind of evenly dividing the the time here uh this question ask there's of course the famous statement if the truth shall make us free if this is accurate then what must we as users do to seek and find truth what is the relation to the growing amount of electronic communications to knowing truth and is language still Ade adequate for finding truth or has our world become much more intricate than words can handle how much time do we I say I'll let you answer that you know I I agree that we must all individually seek truth and try to acquire the the tools for that some of them are things that have been talked about a long time which some are in Jeff's books you know learn critical thinking read widely read things or maybe watch things that challenge your views um you don't have to do that all day long but check them out um and read skeptically and um try to speak truth which includes not only what you say about your own beliefs but uh challenging others in in Civic discourse now these are all skills that are appear to be widely lacking right now uh but the search is certainly worth it Willer Jeff any any thoughts on the search I don't think there's a legal answer to that yeah I I agree it's not as much of a legal issue I mean I'm a former journalist and in my first job out of college in 2001 was at a metropolitan newspaper that at the time had about 400 journalists and now I think it might have 40 and I think it's impossible to look at the misinformation debate without looking at what's happened to institutional media because there was when we talk about the importance of trust um it's not just in government it's that there was a trusted local source that would go to your kids sports game and cover them and go to City Council meetings and um there are thousands of communities that are known as news deserts now where you don't have anyone covering covering the city council and you might just see a post from one of their friends on Facebook or something like that so I think that that's again I mean the only way that becomes a legal answer is if we start talking about government subsidies and tax credits which I think are very worthy of discussion um not terribly popular and I think both among politicians and journalists because there's concerns about independence but I think it's a real crisis that we have to deal with I guess I would only add that in a relative sense text has been around for quite a while and video and recorded audio are incredibly new mediums even if we've had them for all of our lives so the guess you would say vocabulary that we have for critiquing something like emotionally manipulative text or Hal truth in text is far more developed than anything we've come up with for critiquing manipulative podcasting or live streaming or even produced published film um so I expect as a society um that we'll get better at that as time goes on in the same way as we've honed literary criticism over literally hundreds of years um but it it will take time I'll turn to another question from our our audience um hi this is I'm gonna address this one to Katherine uh oh my name is Deborah we I'm a lawyer I used to do a lot of free speech advocacy but I haven't really been following the case on the guy with the meme who was uh prosecuted if you could talk about that and then you know since you raised the issue of in Europe they're arrested for satire is it happening here now and for will I want to ask the question of um since you raised the issue of how many less cookbooks we'd have if they had to go out and check all the mushrooms themselves um just because I know KO folks love Donald Trump so much I'm G to ask if don't you think the same thing happened with Donald Trump Jr who was when when they were uh I I'm not following these cases closely but charged or or Pro not prosecuted I don't think it was criminal for listening to their accounting firm and they were saying oh the accounting firm was wrong same thing with Jenna Ellis who listened to to the legal information from the people that she knew so those are my two questions I'm sorry I'm not sure what the question was your question if if you could just talk about are you familiar with that case where somebody was arrested with the meme for the satire because you were saying how in in we have the First Amendment here which protects satire and opinion but in Europe they have more restrictive laws and I'm pointing to this case and asking you if those restrictions are coming here even erroneously um they should not be coming here you should not be app analis to thate are you just just give us the details cuz I may think are we talking about Ricky V yeah okay um will to give a what's his other name um it was supposed to be sarcastic it was something to do with the government and I he he's actually he's actually in jail now it was somebody who wrote a sarcastic meme on social media in jail here yes that's okay I'm not familiar with fact that he was jailed I knew of mes that were taken down so I'll I'll I'll handle that okay thank you will I'm Sor so fellow named Ricky vaugh or Su anonymously going as Ricky vaugh on Twitter back in around the 2016 election uh posted a series of memes alleging that you could text to vote for Hillary Clinton and he was charged I believe with um a a conspiracy to violate civil rights by interfering with with people's right to vote uh by misinforming them about how to cast a vote um and he's not in jail yet he has been sentenced but he's going to appeal um so this is this is a First Amendment case that's uh you know might end up at the Supreme Court if not just the district court level before too long um I think it is in a way a you know kind of the the New Frontier of First Amendment law I know what you're talking about I'm so sorry um and and I just want to distinguish that a little bit because it appears from uh some Supreme Court Doctrine and lower court Doctrine and this is in Rick Hazen's work about elections it is illegal and can be illegal under the First Amendment to misinform people about the mechanics of voting because it deprives them of their vote so if you tell them your uh polling place has been changed and you have to go from Chicago to Detroit to vote or even across town and they get there at the end of the day and they discover that's not where they're voting or you tell them you can vote online just click here that is a crime it's electoral interference it is not protected as free speech it's not like saying you shouldn't even bother to vote because there's no difference between the candidates so I'm sorry well yeah no I mean I I'm um more willing to to at least if not give him the benefit of the doubt um wall off that that kind of prosecution more from a cost benefit standpoint than anything else uh these sorts of jokes around you know Republicans vote on Wednesday whatever have been going around for years and years and Prosecuting I think anybody but especially stepping in and finding a right-winger to prosecute where there were tick toks floating around around on the other side now whether they were shared as widely or distributed with the same intentions who knows but it feels like the benefit to our society in punishing him and prohibiting that kind of speech is pretty minimal where the the sense of unfairness that it creates is potentially much more harmful to our our Democratic process um at the end of the day I think we can handle that kind of false speech as a as a political culture um but we'll we'll as it moves through the courts I I I think we've got to get to another round of questions I'm I'm sorry I know I'm I'm not familiar with the kind of what was passed to Trump Jr around his business dealings um we can chat later so I I do want to end with a a question from online before I wrap this up and I asked the question about AI as an emerging technology and how this debate over misinformation might come into play there Jeff your book does an excellent job of course tracing the history of of how this debate has occurred in the past but online we have the question of could some of these debates about uh regulation of misinformation online spill over as a back door to censorship offline of books or newspapers Etc yes would you care to elaborate yeah I mean I I think that the and I mean the Supreme Court in 199 7 very forcefully articulated that the internet receives the full scope of First Amendment protections that a book publisher or a newspaper does uh and while the federal government was trying to say no it's more like a broadcaster where the FCC can impose more regulations and um so I I think at least as of now I think that any of any of the current cases that are pending before The Supreme Court we have a few involv solving the internet they could have impact beyond the internet I think what actually could become more dangerous and I'm I'm actually quite concerned about it is if the Supreme Court in any of these cases reconsiders that 1997 ruling and says the internet actually is more like broadcast it's so because it's so pervasive that we need to impose more regulations and I think because the internet's so Central I think that could have really severe impact on our ability to receive information will and Catherine anything to add um I think the difference in speed between the online world and the the offline will always present a problem for um attempts to generally regulate say the the right of reply or creating opportunities to immediately publish counter speech online versus off off um in order to be effective online in in getting that notice up there you need to move at a speed that would be um you know a newspaper can't publish a special edition just to to correct something but online that's very much what what you're doing what you might expect a publisher to do um and so there's certainly danger of of spill over um but really thinking about how a regulation intended for one meeting or one uh speed of velocity of communication might affect the other is is the way to go here r on something that Jeff talks about in his book that the disparity of uh resources and ability to reach large numbers of people uh is not really that we saw in classical media with response to things like defamation is not really diminished on the internet though we might have initially thought it would be um uh because people have different um levels of contact uh so if you're Britney Spears or Kim Kardashian and you put out your answer you're going to reach millions of people if you're me you're not um and if you're somebody who doesn't get to appear at Ko you're going to reach maybe even fewer people than I do um so U where it once took money and ads and all kinds of things uh we still don't have equal opportunity to respond and so I think the classical Doctrine is is in place uh much more than the concerns that that will is pointing to well thank you so much for an excellent conversation around an important and timely topic if our audience could join me in in thanking our panelist for for being here and once again the book is liar in a crowded theater freedom of speech in the age of misinformation and it is available now wherever fine books are are sold um for those of you who are with us in person please join us upstairs in the Georgia Yer Conference Center for lunch and I hope that we continue to have this important conversation thank [Applause] [Music] you [Music] you B for [Music] e e

Channel: The Cato Institute

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Id: klxWYjVWWJo

Length: 76min 21sec (4581 seconds)

Published: Wed Nov 08 2023