The Problem of Free Speech in an Age of Disinformation

On May 16, 2017, Fox News posted an article that drew on a report from the local Fox station in Washington, laying out a conspiracy theory about the death of Seth Rich, a staff member at the Democratic National Committee who was apparently the victim of an attempted street robbery. The story falsely implicated Rich in the Russian hacking of committee emails, which were released by WikiLeaks during the 2016 presidential campaign. Sean Hannity amplified the lies about Rich on his Fox News show that night and the former House speaker Newt Gingrich repeated them on “Fox & Friends” a few days later. The falsehoods spread to conspiracy websites and social media. Fox News retracted its false report online a week later, but “Fox & Friends” did not; Hannity said on his radio show, “I retracted nothing.” An ABC affiliate owned by the Sinclair Broadcast Group, a conservative owner of local TV stations, then aired another report on the Rich conspiracy theory, which the local Fox station covered, giving it life for another news cycle.

In a 2018 book, “Network Propaganda,” Yochai Benkler, a director of the Berkman Klein Center at Harvard, and two researchers there, Robert Faris and Hal Roberts, mapped the spread of political disinformation in the United States from 2015 to 2018. Analyzing the hyperlinks of four million news articles, the three authors found that the conservative media did not counter lies and distortions, but rather recycled them from one outlet to the next, on TV and radio and through like-minded websites.

The dearth of competition for factual accuracy among conservative outlets leaves their audiences vulnerable to disinformation even if the mainstream news media combats it. People are more likely to believe fact-checking from a source that speaks against its apparent political interest, research shows. In the eyes of many conservatives, news outlets like The Washington Post, The New York Times and CNN do not fill that role when they challenge a story that Trump and Fox News promote.

Mainstream publications also make mistakes or run with a hyped narrative. The repeated front-page coverage that The New York Times gave to Hillary Clinton’s use of a private email server, after breaking the story, shadowed her defeat in 2016. It was also skewered by press critics — an example of how competing outlets challenge and correct one another (even if the system sometimes fails in real time). This “reality-check dynamic” in the mainstream and left-leaning media, Benkler, Faris and Roberts write, “still leaves plenty of room for partisanship.” But the standards of journalism, however flawed, appear to “significantly constrain disinformation.”

In the past, ensuring a vibrant free press made up of competing outlets was an express aim of federal policy. From the founding until the early 20th century, Congress lowered the cost of starting and running a newspaper or magazine by setting low postage rates for mailed copies. The advent of radio raised questions about how to foster competition and public access. “Lawmakers of both parties recognized the danger that an information chokehold poses to democratic self-government,” says Ellen P. Goodman, a law professor at Rutgers University. “So policymakers adopted structures to ensure diversity of ownership, local control of media and public broadcasting.”

In 1927, when Congress created the licensing system for exclusive rights to the broadcast spectrum, so that radio broadcasters could secure a place on the dial, lawmakers told broadcasters to act “as if people of a community should own a station.” The 1934 Communications Act similarly required anyone with a broadcast license to operate in the “public interest” and allocated spectrum based on ensuring that local communities had their own stations. In 1949, the Federal Communications Commission established the fairness doctrine, which interpreted operating in the public interest to require broadcasters to cover major public-policy debates and present multiple points of view. And in 1967, Congress created and funded the Corporation for Public Broadcasting, whose mission is to “promote an educated and informed civil society,” and reserved broadcast spectrum for local NPR and PBS stations.

During these decades, broadcasters were held to a standard of public trusteeship, in which the right to use the airwaves came with a mandate to provide for democratic discourse. Broadcasters made money — lots of it — but profit wasn’t their only reason for existing. “The networks had a public-service obligation, and when they went to get their licenses renewed, the news divisions fulfilled that,” says Matthew Gentzkow, an economist at Stanford who studies trust in information. The model coincided with a rare period, in American history, of relatively high levels of trust in media and low levels of political polarization.

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