Fake News Must Remain Legal

Last week my esteemed colleague Luis Granados penned an article for TheHumanist.com that sought to build the basis for tougher legal consequences for creating and spreading fake news, a topic in vogue since the debacle that was the 2016 presidential elections. And while cutting down on fake news sounds like a no-brainer, the consequences of further restricting speech, even stupid and misleading speech, would likely be disastrous.

“Beauty is in the eye of the beholder” is a common and oft-repeated idiom, but I’d argue that truth could easily by substituted for beauty in this context. Each human being has a different version of truth, from our individual perspectives on religion and the nature of our existence to our understanding of current events. This sentiment isn’t an endorsement of the post-modernist relativism which holds that there are no objective truths, or that knowledge derived from an empirical approach to the world, such as that afforded to us by the scientific method, remains inherently subjective and therefore unreliable. But it is important to acknowledge, especially when it comes to news reporting, that one man’s fake news is another man’s objective investigative reporting, and that it is likely impossible to find a neutral and detached arbiter who could determine which news is “fake” and which is “real.”

It’s important to distinguish fake news that has a financial incentive—or libels or defrauds someone—from fake news that is merely a person’s perspective on current events. The former, as Granados rightly notes in his article, is already prohibited through our defamation and fraud laws, and the consequences from violating these laws should perhaps be strengthened as he desires. But the latter, while still potentially harmful to society, must remain a protected activity unobstructed from legal consequence and government censure.

Ideological “fake news,” the type without an explicit financial or defamatory nature, is to my mind the simple erroneous interpretation of current events by an individual, often because they are blinded by their political, philosophical, or religious beliefs. But because current events are so multi-faceted and dynamic, it is of course impossible to prove clearly what the cause or impact of events truly are or will be, which is exactly why ideological fake news must be allowed. Essentially, news reporting can never be completely objective or comprehensive in the scientific sense, as there are simply too many variables to study and understand and no means to isolate and study these variables as we can with more scientific undertakings.

This doesn’t mean that those who push what we view to be erroneous perspectives on current and past events should be given the same respect or credence as more mainstream and journalistic sources; it means we must recognize that news reporting is not a rigidly objective or even largely empirical undertaking, and that, as in most cases, there exists no easily distinguishable truth to be understood and disseminated.

Things get even more complicated when we discuss how exactly ideological fake news would be regulated. Would the government set up a body or commission to regulate fake news? Who would serve on the committee, and who would get to make appointments to the committee? How would the implicit biases of both those who nominate individuals and those who serve on it be counteracted to ensure that the committee wouldn’t merely engage in viewpoint discrimination? How would such a committee react to potentially damaging reporting on government maleficence that relies upon anonymous sources and educated guesses about government actions, as the government may be obstructing important information from public view?

All of this is to say that ideological fake news, while annoying and even misleading, is inherently impossible to regulate, and that attempts to do so would be essentially subjective and prone to abuses of power. Instead, society should focus its energies on teaching skepticism and inquisitiveness, so that Americans are better prepared to evaluate the news sources they come across and less likely to be taken in by reporting that is more style than substance.