Free Speech, Platforms & The Fake News Problem

10/5/22
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Free Speech, Platforms &
The Fake News Problem
Marshall Van Alstyne
Questrom Professor, Boston University
@InfoEcon
© 2022 Van Alstyne – licensed under Creative
Commons Attribution- ShareAlike 4.0 Int’l
• Define FN Problem?
• Modify §230?
• Make FN costlier to produce than honest?
• Avoid authoritarian decision maker?
• Address private chat groups?
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2017 à 2020 à ???
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“Falsehood diffused significantly farther, faster, deeper, and
more broadly than the truth in all categories of information”
All false news stories 2006-2017
Classified by 6 independent orgs.
False news orange, True news teal
Science 9 March 2018
© 2018 Vosoughi, S., Roy, D., & Aral, S. The spread of true and false news online.
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“A lie can travel halfway around the world before the truth
can get its boots on” – Mark Twain 1919
All false news stories 2006-2017
Classified by 6 independent orgs.
False news orange, True news teal
Science 9 March 2018
Jonathan Swift 1710
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Fake News is Not New
Ed McKernon “Fake News & The Public”
“The news editor has to contend not only with rumor, but with the
market rigger, the news faker, the promoter of questionable projects,
and some of our best citizens obsessed with a single idea.”
1925
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Fake News is Not New
Sedition / Blasphemy / Slander
King / God / Citizen
WWII Cold
War
Big
Spike
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Those who can make you
believe absurdities can
make you commit atrocities
Voltaire (1765) Questions sur les miracles
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Existing Solutions Don’t Work
• Fact Checking (crowds / algorithms)
– Very hard to prove a claim did NOT happen, e.g. Trump
rally with better pic. Truth resides off platform
– Partisan raters (Trump impeachment!). NY State capital
problem (NYC vs Albany). Moody’s credit crisis problem
(biased if FB pays)
– Independence insufficient. Snopes dropped FB for
hiring PR firm using propaganda techniques it fought!
– FB asked for preferential treatment of advertisers.
SERIOUS moral hazard problem if truth available to
those who pay.
• Educate Consumers / Accuracy Nudges
– Context on context creates information overload
– Confirmation bias, selective hearing
– Many distrust those who would “educate” them
• Truth “Chasers” & Improved discovery
– Evidence suggests these have almost no effect (B
Nyhan)
• Tagging & Product Labeling
– Ideologues don’t care; they just hate Hilary
– Recursive. Just discredit the labeler. Constant attacks on
“biased” media
– Content labels do not provide means to re-contact
affected audience (”white male coal miner in
Appalachia” ≠ Ch 5 News)
– Labeling a story as “disputed” caused conservatives to
cry censorship and redouble sharing.
• Ban Content / Person
– Arms race, just return under new ID
– Citizens have right to voice their opinion
– Create martyr or special interest
• Demote stories in news feed
– Like spam, can simply motivate variation to get
through. Arms race.
XX – Arms Race XX – Discredit Rater
XX – Responsibility
on wrong foot
XX – Cheaper to
produce fake news
© 2022 Van Alstyne. @InfoEcon
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Pressing on Concepts
Can we clarify definitions & damages?
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Value of Free
Expression & Value
of Information
How would we know if we had succeeded in
protecting speech?
Is there a 1A equivalent of consumer
welfare standard? (Bork 1978)
Cost-benefit applied to antitrust, torts,
contracts…
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Free Speech Goals
1) Seeking Truth: Knowledge is subject to change – flat earth?
Vaccines? Contrasts, give-and-take provide truths
2) Supporting Free Expression: Communicates needs, wants &
preferences. Offers exploration & affirmation of self, which shapes
culture, which shapes self.
3) Participatory Government: “Once one accepts the premise … that
governments derive ‘their just powers from the governed… the
governed must … have full freedom [to consent]”
4) Stable Social Change: Suppressing dissent drives opposition
underground.
Emerson, T. (1962) Toward a General Theory of
the First Amendment. Yale Law Jrnl
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First Amendment Jurisprudence is
Deontological, Categorical
• US Courts: do not balance costs/benefits to decide
speech protection. Category determines its level
• No/Less Protected Categories: Fraud, obscenity,
illegal conduct, true threats, IP theft, commercial
speech, perjury, inciting imminent lawless action
• Deontological: If the rule is right, it should be
followed absolutely (regardless of consequence)
• Fiat iustitia, et pereat mundus: “Let justice be
done though the world may perish”
Immanuel Kant – Methaphysics of Morals 1797
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Proposal: Standard of
Greatest Welfare via Decision Change
• Right of such expansive free expression as allows
each to improve their conditions, as reflected in
decision changes on best available info
(people get the right to influence decisions that affect them)
• Subject only to an equivalent right for others and
responsibility for decision errors induced in others.
• “Best Available Info”: limits attention to particulars
of time and place (no change without limits)
• “The only purpose for which power can rightfully
be exercised over any member of a civilized
community, against his will, is to prevent harm to
others”
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Why is Decision Benefit Valuable?
• Maximum Liberty: consistent with John Stuart
Mill’s conception of liberty (say vs do)
• Applies First Fundamental Welfare Theorem of
Economics: Like the “invisible hand,” each
choosing in their own self interest maximizes info
available to a market and, in equilibrium, reaches
Pareto optimality (exceptions: info asymmetry,
externality, monopoly)
• Captures Free Speech Goals: (1) Seeking Truth (2)
Free Expression (3) Participatory Government (4)
Stable Social Change
Friedrich von Hayek
Vilfredo Pareto
Kenneth Arrow
Adam Smith
Thomas Emerson
John Stuart Mill
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Speaker v Listener Responsibility?
Resource economy & indiv
agency place principal
decision responsibility on
decision maker (listener)
“residual claimant” policy
aligns incentives, improves
effort, raises welfare
Truth: accurate on best
available info
Ambiguity: enough to give
benefit of doubt
Balance: enough to alert
listener of other options
Influence: not unduly
coercive
Change: none from default
Principal Agency Theory Speaker Defense (TABIC)
If claim is unambiguously harmful, without balance, and exercising undue influence so as to change
a decision then responsibility shifts from listener to speaker
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Info_Val = Payoff[Dcsn | informed choice] – Payoff[Dcsn | un-informed choice]
Changes Decision?
No Yes
News
Good VaI = 0 VaI > 0
Bad VaI = 0 VaI > 0
False or incomplete news can cause decision error or harm:
1. “Americans for Prosperity” mailed democrats false date for ballot deadline
2. Colin Powell did die of covid despite full vaccination (but had blood cancer)
True news that is actionable is always valuable, even if it is bad news:
1. CO2 is causing global warming è reduce emissions
2. Test comes back positive for sickle cell anemia è stem cell treatment
BUT then false news that causes no decision error causes no harm
1. 2010: Buy GOOG it’s going $266->$300/share! It’s gone to $2,390/share.
2. Flaming Hot (FH) Cheetos is discontinued! But you don’t like FH Cheetos.
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Issue: It’s not news “fakeness” that matters
1. Much false news doesn’t matter:
• Pluto a planet? Asteroid?
• Ad exaggeration?
• Irony? Comedy? Parody?
• Fake news disbelieved not a problem
2. Much true news does matter:
• Russia used truth to suppress black US votes
• Stolen/shared (very) personal photos, CC
• Misleading half-truths, truth + truth = lie
• True news disbelieved, possible problem!
You cannot own truth, cannot be liable for truth, cannot be dispossessed of truth
è bad focus of law, mechanism design
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The Problem:
To clear communications of information that causes decision
error or negative externalities at scale
Hard: Externalities cause market failures, market failures
require intervention, but government speech intervention is
expressly barred by 1A.
One can be liable for decisions or externalities
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1. Too Much Pollution: Those who do not internalize externality harms produce
too much. There is overproduction of misinformation.
2. Too Little Correction: Attempts by courts to use the market of ideas to “sort
things out” will fail. Markets do not self-correct market failures.
Ø Goals: This research seeks to i) internalize externalities and ii) decentralize
interventions such that no one party exercises control
Ø Result: A utilitarian metric of decision change that 1) protects irony & parody,
2) provides press “breathing room,” 3) delineates counter speech, 4) offers a
welfare test of protecting speech (Alvarez, NYT v. Sullivan, Brandenburg)
Implications
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Solutions from Choice
Architecture
Firms might voluntarily adopt them
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Solution 1 of 6 :
Join Decision Rights & Knowledge of Harm
Option 1: Pull outside
information into platform
✘ Creates a powerful central
platform
✘ Does not ensure incentive
alignment
✘ Infinite variety of externalities
suggests many missed
Option 2: Push inside information
out where externalities occur
ü Creates competition,
decentralization
üSolves secrecy problem. Clinton or
Biden can address messages
whispered by Russians
üDecision Potentiation. Informed
parties can choose to act to undo
damage
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Mechanism 1: Beyond transparency (buyer ID,
contact, spend & content), enable counter
speech access so harmed parties can undo
damage among recipients
• Drives Decisions of 3rd parties & recipients
• Need not ID recipients
• Platform simply sells more ads
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Access + information helps undo harm
Doesn’t change liar incentives
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Solution 2 of 6 (reverse amplification):
Add Friction to Liars Not Just their Lies
Mechanism:
• If reputation is sterling, number of followers and speed of news sharing are
unlimited, but…
• If caught lying, followers are limited and dissemination is delayed. Friction applies
to author of lies, not just specific lies. (If halved, 88M -> 1 after 27 lies!)
• Ex post verification far easier than ex ante. Puts burden on source to be truthful
• Ideologues need media access to disseminate views. Reputations quickly lost
and slowly gained suggest even ideologues behave better. Puts determination of
truth on source – vastly simpler problem
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Reverse amplification changes liar incentives
Not business compatible. Not change platform incentives
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Solutions Derived from Pigou
Firms not motivated to adopt them
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“We did not take a broad
enough view of our
responsibility...”
Mark Zuckerberg
Joint Commerce & Judiciary Committee
Privacy Concerns & Russian Disinformation
April 10, 2018
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“Facebook prioritizes
profit over well-
being... The result has
been more division,
more harm, more lies,
more threats ... In
some cases, this
dangerous online talk
has led to actual
violence that harms
and even kills people”
Senate Committee on Commerce, Science,
and Transportation, Oct 5 2021
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To solve an externality problem…
…tax a negative externality until
the private marginal cost equals
the social marginal cost.
Most societies tax alcohol for this
reason (to deal with associated
damage or crime)
Arthur Cecil Pigou
“The Economics of Welfare”
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Solution 2 of 6: A Pigouvian Tax on Ads
A progressive digital ad tax …
1. Shifts business model from ads to
subscriptions, cuts incentive to track
2. Favors startups and small firms. Two
small firms face lower tax than merger.
Also helps competition policy.
3. Avoids government judging content
Paul Romer – Nobel 2018
But strength is also weakness…
1. Avoiding content, taxes engagement not harm
2. A subscription firm harboring antivaxx disinfo,
conspiracy theories & false election stories
pays no tax. Totally clean ad-based firm does. © 2022 Van Alstyne – licensed under Creative
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Solution 3 of 6: A Pigouvian Tax on
Externalities
Mechanism:
• A tax (or subsidy) applied to the channel, in proportion to the negative (or
positive) externality causes that channel to internalize the damage (benefit) and
reduce (increase) it
• Start narrowly – foreign election interference, crime, terrorist recruiting, sex
trafficking, voter registration lies
• Passes “strict scrutiny.” There is compelling constitutional interest in free and fair
elections. Putin has no right to speak in US elections. Start with illegal content
• Internalizing damage, a platform puts friction on liars not just their lies
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Scale problem: 500M+ messages each day?!?
Lawsuits unpredictable, expensive & slow
Favors incumbents over startups
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Solution 4 of 6: Relax Total Immunity
(Section 230) to flow rate of pollution
Mechanism:
• Use statistical message sampling to assign accountability, NOT individual messages
• Doctors don’t take all your blood to check cholesterol, they take valid samples
• Want 90%, 95%, 99.99% accuracy? Central Limit Theorem solves scale problem.
Works even for “half truths”
• Progressive pollution rate easily adjusts to startups, e.g. FB 1%, Startup 3%
• Social “dial”: different societies can weight false positives and false negatives
differently
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“Not only do we not do something about combustible election misinformation in
[Stop-the-Steal], we amplify and give them broader distribution. Why?”
Facebook Employee Nov 5, 2020
“We’ve been fueling this fire for a long time and we shouldn’t be
surprised it’s now out of control”
Facebook Employee Jan 6, 2021
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Problem: One speaker provides spark. The platform fans the fire, composes
the group, and adds accelerant, amplifying 1,000x, 10,000 or 88M times.
How do we protect user speech but assess platform liability for added harm?
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Fair Attribution
Scientist creates invention value = 1
VC builds a business around it, magnifying value 1,000x
VC wants (1000)/(1+1000) share of value. Fair?
Give each party their share of each increment for which indispensable
Increment 1 = 1 Scientist indispensable => 1 to Scientist
Increment 2 = 1000 Both indispensable => 500 to S, 500 to VC
=> S : !"#$$
!"!$$$
VC : #$$
!"!$$$
Whether outcome is a good or a bad, same formula holds
=> #$$
!"!$$$
or #$$$
!"!$$$$
or %%&
!"''&
to P
Scenario:
Shapley:
Solution:
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Magic: No Amplification, No Free Speech Harm
Suppose we charge P for its "##
$%$###
share of 1000 damage (< ½), what happens?
If this is unprofitable, P stops amplifying. Because both parties are indispensable,
the full 1,000 disappears!
Leaving only the original spark, i.e. the free speech
So long as we charge P ad price + ℇ, boosting lies is unprofitable and we don’t
need to estimate size of harm. By CLT, this is highly predictable.
Suppose P wants to amplify as its speech? Then it may do so, despite damage of
1000, for price of its own ads paid to society.
Q:
A1:
A2:
A3:
No Amplification, No User Speech Harm
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Separates the rules defining fake news (legislature), from adjudication
of fake news (judiciary), from the fake news interventions (executive).
Proposal: News orgs collectively serve as legislators. Juries/fact-
checkers as adjudicators. Social Media platforms like Facebook serve
as executors.
Governance
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Structure as self-governing trade association or standards body. If
industry fails to self-govern, federal government imposes such “meta
governance” as necessary to induce self-governance. We’ll tax all ads
unless you voluntarily tax bad ones.
Decentralized – Pigouvian mechanism where no one party decides, no
money shades decision, no one has incentive self-interest bias
1A Compatible?
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Solutions Derived from Coase
Firms should voluntarily adopt them
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Problem of Fake Political Ads
We’ve made the decision to stop all
political advertising on Twitter globally…
Oct 30, 2019
We don’t fact-check political ads…
Oct 17, 2019
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Problem of Fake Political Ads – Extremes
Prevents our political discourse Pollutes our political discourse
No Political Ads Lies in our Political ads
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Question: Which Claim is More Credible?
Claim: We’ll protect your bike from theft!
$22.99
(no warranty)
$34.99
90 Money Back Guarantee
3 year warranty on locking
mechanism
$79.95
Lifetime warranty
$2,500 Insurance if your
bike is stolen
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Solution 5 of 6 : Honest Ads Market
Mechanism: Allow claimants (PACs, advertisers) the option to “guarantee” their
claims. The guarantee is a resource, forfeit if the claim is false and returned if true.…
1. Shifts liability to author. No one knows basis for claims better than author. Liars
don’t want to guarantee. Honest claims are free to guarantee!
2. Politicians may lie if they wish. Whistleblowers in totalitarian regimes can
disseminate truth. It just becomes expensive
3. It’s an option. Honest authors are motivated to signal they have integrity liars
don’t. This changes cost structure. It becomes cheaper to create facts than
fictions. Also, business model compatible for social media.
4. Total market decentralization
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Media Liability
Print 1914 (FTC)
• Liable for ad lies
• Editorial
discretion over
all ads
Broadcast 1934 (FCC)
• Liable for ad lies except
for candidates for
public ofc
• Editorial discretion
over all ads except for
candidates for public
ofc (must take)
Internet 1996 (§230)
• Liable for no lies
• Editorial discretion
over all ads
Proposed (fair) Legislation
Tom
Steyer
Pillow
Guy
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Socially Optimal Liability
Advertiser or publisher/platform (P/P) should hold liability – not users. Why?
a) Advertiser authored the ad
b) Socially efficient to check 1x while receiving payment (low cost avoider)
Proposal:
a) P/P holds liability for all ads they accept
b) Editorial policy leaves them free to reject / accept any ad
c) BUT if advertiser warrants a truthful ad, P/P must accept and
liability shifts to advertiser
not 10,000x with no payment (hi cost avoider)
✓ – Fair
Across P/P
Media
✓ – Socially
Efficient
Costs
✓ – P/P maintains
editorial discretion
when holds liability
✓ – Advertiser may reach any audience,
over editorial policy, at cost of assuming
liability – truth ↑, polarization ↓
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Utilitarian Solutions to
Deontological Problems
Changes to bad law or laws that are self-contradictory
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Washington League for Information
Transparency & Ethics v Fox News
• Claims: WASHLITE sues Fox News for propagating false info on health
effects of precautions, for claiming COVID-19 pandemic is a hoax, and
violating deceptive practices of Consumer Protection Act (CPA)
• Seeks: retraction and to bar further dissemination of misinformation
• Court dismisses citing US v. Alvarez (false statements not unprotected).
CPA was not implicated as there was no trade, anyway trumped by 1A
• Appeals Court affirms, adding policy concerns receive strictest scrutiny
under 1A and thus protection “no matter how outrageous” … but goal is
“laudable”
• Fox News continues disseminating misinformation
• Deontology: “Let justice be done though the world may perish”
21-05-27)
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Solution 5 of 6 – Test: Decision Change
OLD: WASHLITE v. Fox practice
1. Aimed to establish false facts
2. Aimed to override editorial discretion
3. Establish trade for deceptive practice
John Stuart Mill
NEW: Change Default Decision?
1. Full freedom of expression, no ex ante constraint
2. What decision implicated? How default changed?
3. Decision: take precaution against spreading virus
during pandemic?
4. Default: US Surgeon General, NIH, Whitehouse
Coronavirus Task Force (Dr. Fauci), CDC, WHO
5. Change? © 2022 Van Alstyne – licensed under Creative
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Change: Data Science Causal Links Between…
1. Viewing Hannity (top Fox News) increased COVID-19 mortality
(Bursztyn et. al “Misinformation During a Pandemic” NBER w27417)
2. Viewing Fox News reduced social distancing compliance
(Simonov, et. al “The Persuasive Effect of Fox News: Non-Compliance with Social Distancing”
https://ssrn.com/abstract=3600088 )
3. Viewing Fox News reduced mask & sanitizer consumption
(Ash, et. al “The Effect of Fox News on Health Behavior During COVID-19”
4. Viewing Fox News lowered vaccination rates [not for flu!]
(Pinna, et. al “Cable News & COVID-19 Vaccine Compliance” SSRN:
5. Hypocrisy: opposing gov vaccine mandate/testing, embracing
own employee vaccine mandate/testing (Bauder, D. “Fox’s Vaccine
Criticism Focuses Att’n on Own Policy” AP News, Sept 16, 2021)
Coronavirus
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What of personal agency for one’s own choices?
Are there not other sources of information?
1. Ethics: Deontology in its pure form (Kant), not as practiced by courts,
requires telling the truth, reserving particular scorn for hypocrisy. No one
can set their own rules contrary to those for others and be practicing a
universal law. Hypocrisy lies at the heart of immorality under deontology.
2. Data Science: Controlled for alt news sources using Fox’s own audience
(Hannity v Tucker), location treatment / control using cell data, purchasing
controls, etc. … precision well “beyond a reasonable doubt.” Pharma
already uses “market share liability”
3. Coase/Calabresi/Melamed: Damage is a function of both parties’ choices.
If a “negative good” can be traded, assigning property rights restores
efficiency. BUT, if transaction costs are high, then assign liability to low cost
avoider (else moral hazard), here the party producing misinformation. The
alternate, all viewers checking all claims, is an absurdity of inefficiency.
Free Will
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Irony
1) Even staunchest free speech absolutists, Justices Douglas & Black, took
pains (Brandenburg v Ohio) to defend and carve out the extreme speech
exception of “falsely shouting ‘Fire!’ to cause a panic”
2) A news organization is falsely shouting “Not Fire!” when there is one yet
the courts are defending them after citizens get burned.
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Antitrust Paradox
Legal intervention intended to protect consumers and free trade markets
artificially raised prices by protecting inefficient firms from consequences of
competition
è Competition law changed dramatically in the 1980s
First Amendment Paradox
Legal intervention intended to protect citizens and free idea markets artificially
raises harms by protecting those pushing falsehoods from the consequences of
acting on those falsehoods
è Can free speech law do the same?
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Applications
US v Alvarez 2012, NYT v Sullivan 1964, Brandenburg v Ohio 1969
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Free Speech: United States v Alvarez 2012
Deontological 1A – category?
• Alvarez claimed to be military veteran with
Congressional Medal of Honor at water board
hearing (total fabrication!)
• Convicted under Stolen Valor Act
• Appeals Court overturns Supreme Court
affirms – falsity alone is not an unprotected
class
• Declined to add new category of false speech
for military honors
Implicated Decision?
• Self intro at water board? (Kennedy)
è No decision. No change on water issues
• “I won a Purple Heart – for killing babies ”
veteran / non-veteran claim at Vietnam
protest march (Sotomayor)
è Whether claim true (veteran) or false (non-
veteran) same decision: Support war?
è Irony used for emphasis not deceit
è Change: reduce support (or question default!).
No recipient harm from decision error!
• Apply for VA benefits ($1.4M)? Claim on
resume? (Alito, Scalia, Thomas dissent)
è Change: Claim unjust reward. Harm!
è Change: Hiring decision. Harm!
è Commonwealth v Crawford 2021
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NY Times
vs.
Sullivan
(1964)
Fighting
$500K against
NYT
Completely
Changed Press
Accountability
Standard
Fighting
$300M against
all press
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NY Times v Sullivan (1964)
False Claim Historical Event
Sang My Country ‘tis of Thee Sang National Anthem
Martin Luther King arrested 7x Martin Luther King arrested 4x. Charges: loitering, speeding, perjury
(bogus tax claim), interfering with commerce (Montgomery bus boycott)
9 students expelled for leading demonstration at capitol 9 students expelled for demanding service at a lunch counter
Students protested expulsion by refusing to register Students protested expulsion by boycotting class
Truckloads of police ringed campus armed with tear gas and
shotguns
Police deployed near campus in large force 3x
Dining hall padlocked to starve students Unregistered students denied meal tickets
? MLK home firebombed 2x, endangering wife and child
? Martin Luther King acquitted of perjury
? Sullivan published statement of intent to use police to “take whatever action
might be necessary to disperse [negro troublemakers]” demonstrating at capitol
for their civil rights
? Sullivan was active member of Ku Klux Klan
? Sullivan persuaded Alabama Governor to close Alabama State College for Negros,
used force to break their lunch counter protest.
? White mob attacked civil rights protesters with clubs and chains before police
arrive. Sullivan conspired with mob leader to delay police arrival.
Lester Bruce Sullivan
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NY Times v Sullivan (1964): SC Dilemma
Broaden
Intent
Problem 1 Test Truth: Factual errors were present, some claiming Sullivan’s police had committed
acts they had not done
Problem 2 Test Negligence: NY Times had not checked ad against articles of its own reporters that
would have corrected certain errors
Problem 3 Test Character: Attach to Sullivan events in which he had not participated and had not
actually occurred (ring campus with shotguns or starve protesters into submission)
Problem 4 Test “of and concerning Sullivan”: Dispatches this case but not $300M worth of other
cases (governor had initiated sham perjury charge as state attorney general)
Supreme Court Solution – Test Intent: Did they mean to publish falsehood? Was there actual
knowledge of or reckless disregard for falsity (“actual malice std”) à press “breathing space”
False
Positive
False
Negative
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Justice Clarence Thomas (2019)
• NYT v Sullivan is ahistorical for long history of common law libel (not valid)
• Allows false narratives about public figures e.g. Pizzagate, (McKee v Cosby 2019 denial of cert)
• Return decision to states
Justice Neil Gorsuch (2020)
• NYT v Sullivan made sense in 1964, not now: editors vs amp w/o fact check
• Optimal legal strategy is to publish without investigative fact-checking
• “Those exercising freedom of the press had a responsibility to get facts right or
answer in tort for the injuries they caused” (Berisha v Lawson 2020 dissent)
• “Actual malice” standard has become “effective immunity from liability” à need to
revisit
Professor Elana Kagan (1993)
• Rather than informing public debate it has come to promote false statements of fact.
“…the legal standards adopted in Sullivan may cut against the very values adopted in
the decision” (1993).
Solutions?
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NY Times v Sullivan (1964): Full Information
False Claim Historical Event
Sang My Country ‘tis of Thee Sang National Anthem
Martin Luther King arrested 7x Martin Luther King arrested 4x. Charges: loitering, speeding, perjury
(bogus tax claim), interfering with commerce (Montgomery bus boycott)
9 students expelled for leading demonstration at capitol 9 students expelled for demanding service at a lunch counter
Students protested expulsion by refusing to register Students protested expulsion by boycotting class
Truckloads of police ringed campus armed with tear gas and
shotguns
Police deployed near campus in large force 3x
Dining hall padlocked to starve students Unregistered students denied meal tickets
? MLK home firebombed, endangering wife and child
? MLK acquitted of bogus perjury charges by all white AL jury
? Sullivan published statement of intent to use police to “take whatever action
might be necessary to disperse [negro troublemakers]” demonstrating at capitol
for their civil rights
? Sullivan was active member of Ku Klux Klan,
extended police force with KKK members
? Sullivan persuaded Alabama Governor to close Alabama State College for Negros,
used force to break their lunch counter protest.
? White mob attacked civil rights protesters with clubs and chains before police
arrived. Sullivan conspired with mob leader to delay police arrival.
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Decision Test: Decision Change?
Is misrepresentation (falsity or incompleteness) sufficient to alter the default decision?
Implicated Decisions:
1. Support civil rights movement and legal defense fund of MLK?
2. Discontinue or refuse to enter into advantageous relationship with Sullivan?
Civil Rights Supporter
1. No
2. No
No change è No harm. We have “breathing space” for falsehoods without effect
Segregationist
1. No
2. No
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Brandenburg v. Ohio (1969)
At armed Klan rally …
“If our President, our
Congress, our Supreme
Court, continues [sic] to
suppress the white,
Caucasian race, it’s possible
that there might have to be
some revengeance [sic]
taken.”
Clarence Brandenburg
convicted under Ohio statute
banning advocacy of
“violence or unlawful
methods of terrorism” in
pursuit of “industrial or
political reform”
Supreme Court overturned, introducing new test, intersection of two categories: speech (1) directed at
inciting or producing imminent lawless action, and (2) likely to incite or produce such action
Tighter than (•) tendency to cause sedition or lawlessness (•) gravity of evil discounted by improbability
(•) clear and present danger
62

10/5/22
32
Brandenburg v. Ohio (1969)
At armed Klan rally …
“Shoot to disable”
Insufficiently protective of
speech?
False Positive: Intervenes
when should not
Supreme Court overturned, introducing new test, intersection of two categories: speech (1) directed at
inciting or producing imminent lawless action, and (2) likely to incite or produce such action
Transpose to Tulsa,
Oklahoma massacre of 1921
Transpose to Russian illegal
invasion of Ukraine 2022
63
Decision Test: Decision Change?
Should speaker advocacy of violence be protected speech? Is it more moral?
Implicated Recipient Decision:
1. Shoot to disable (not kill)?
Default: No harm occurring
1. Recipient Decision: Inaction (no change)
2. Recipient Decision: Disable (change)
=> Change from default BAD
Categorical test (end state), the deontological view, cannot determine value.
Decision change test (end – start), the utilitarian view, can determine value.
Default: Grievous Harm Occurring
1. Recipient Decision: Inaction (no change)
2. Recipient Decision: Disable (change)
=> Change from default GOOD
64

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33
Solution 6 of 6: Move from test of truth, or
imminence, or intent etc. to decision change
Mechanism:
• Separate intervention from remediation (and intent)
• Allow market intervention concerning facts causing decision errors & externalities
• Allow remediation based on intent
• Immaterial Falsehoods have “breathing room” … as do irony, parody, viewpoints, etc.
• Market can clear itself of false facts
• Test: Free Speech Decision Change ≈ Antitrust Price Change. Not price level but
increment that matters (SSNIP test of monopoly power)
• Fewer false positives and false negatives!
65
Disinformation is a form of pollution. It’s a hard problem because (1)
we’ve focused on truth or imminence or intent not decisions, and (2)
we lack/forbid institutions for addressing externalities
Using government risks totalitarianism. Using attention-based media has wrong incentives.
Business model compatible solutions exist. Externality solutions (1) Pigou and (2) Coase
can be decentralized. Markets can clear themselves of falsehoods, preserving press
“breathing room,” if we focus on decision change, properly assign liability, and stop
intervening in markets
XX – Arms Race XX – Discredit Rater XX – Responsibility
on wrong foot
XX – Cheaper to
produce fake news
✓ – Avoids
Arms Race
✓ – Peer jury ✓ – Responsibility
on liar
✓ – Cheaper to
make honest news
66

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34
Summary: Proposed Solutions
1. Pair knowledge of harmful externality with access to means
of resolution. Transparency + counter speech to undo damage
2. Let honest claimants warrant their content
3. Add friction to liars and not just to lies
4. Pigouvian tax on ad. Pigouvian tax on harmful externality.
Start narrowly, apply to crime and sovereign interference.
5. Relax section 230 to apply to a population of messages of
sufficient significance.
6. Move from test of truth, category, or intent to decision
change
1. Incentive
Compatible
2. Compatible
3. Not Really
Compatible
4. Not Compatible
5. Requires
legislative chg
6. Requires
Judicial change
67
“Proposal: A Market for Truth to Address False Ads
on Social Media”
“The Price of Lies”
“Platforms, Free Speech & the Fake News Problem”
http://ssrn.com/abstract=3997980
Van Alstyne, M. W. (2020). Communications of the ACM, 63(7), 23-25.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3563256”
https://thinkers50.com/blog/the-price-of-lies/
Thank You!
68

Free Speech, Platforms & The Fake News Problem

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