The slides accompany a conference given at the Centre for Ethics at the University of Toronto given on January 23rd 2019.

1. Misinformation and
Freedom of Expression
Étienne Brown
SSHRC Postdoctoral Fellow
University of Oxford/University of Toronto

2. Background
• Growing concern over the negative impact of
misinformation on the democratic process
(Levy 2017, Rini 2017).
• Debate about how liberal democracies should
tackle the problem posed by fake news:
• change in individual cognitive habits
• algorithmic design
• legal prohibitions

3. Macron’s 2018 law
against fake news
• Adopted by the Assemblée nationale
on November 20 2018.
• Empowers French judges to order the
removal of fake news from websites,
including social media, within 48 hours.
• The French senate has refused to ratify
this law: it is incompatible with our
freedom to communicate.

4. Outline
• Question: Should liberal democratic states coerce
social media into removing fake news from their
platform?
• 1. A social epistemological argument in favour of
the legal prohibition of fake news.
• Conclusion: There are serious reasons to prohibit fake
news.
• 2. Misinformation and free speech: an objection
against the legal prohibition of fake news.
• 3. Expression and autonomy: a response to the free
speech objection.
• Conclusion: Legal prohibitions against misinformation are
compatible with free speech.

5. 1. A social epistemological argument in favour
of the legal prohibition of fake news

6. Defining “fake news”
• Definition: the deliberate presentation of false or
misleading claims as news, where the claims are
misleading by design (Gelfert, 2018).
• Fake news:
• either aims to instill falsehoods in its target audience
(for example, in order to discredit a political
opponent)…
• …or because the way it is deliberately operated is
objectively likely to mislead its target audience, its real
goal being (for example) the generation of clickbait
through sensational claims that attract an online
audience.

7. Epistemic dependency
• Mutual epistemic dependence: Individuals have a
basic interest in relying on each other’s testimony to gain
knowledge that allows them to fulfill their individual
needs and aspirations.
• Quote: “Given our mutual epistemic limitations and the
complexity of the environment in which we find
ourselves, we depend upon one another’s beliefs,
knowledge, and reactions to our beliefs to construct a
reliable picture of our world, so that we can navigate
through it and understand who we are and where we are
situated” (S. Shiffrin, Speech Matters, 2014: 9).

8. Expert testimony
• Experts play a central role in epistemic
dependence. The existence of sincere and
reliable experts relieves us from a substantial
epistemic burden.
• Experts provide us with information that we are
rationally warranted in not acquiring or verifying
ourselves.
• Experts contribute the social division of
epistemic labour.

9. Expertise, journalists and fake
news
• We are engaged in a mutually beneficial form of epistemic
dependence with journalists:
• They provide us with reliable information about the
world.
• Having access to this information facilitates the pursuit
of our individual interests.
• The wrong in fake news: Individuals and organizations
that diffuse fake news knowingly undermine the expertise of
journalists.
• They give us reasons to stop relying on the expertise of
journalists…
• …or at least to accept the epistemic burden of verifying
the truth value of their claims.

10. Why prohibit fake news?
• They do so by faking the expertise of journalists:
deceitful fake news is not the work of liars but rather
of impostors.
• Originators of fake news show disregard for our
basic interest in engaging in a mutually beneficial
form of epistemic dependence with journalists.
• The prohibition of deceitful fake news protects
our basic interest in engaging in this mutually
beneficial form of epistemic dependence against this
disregard.

11. 2. The free
speech objection

12. The free speech objection
• Even if legal prohibitions create desirable social results
(e.g. safeguarding the social division of epistemic labour),
they are incompatible with our individual right to free
speech.
• This is a deontological objection to consequentialist
forms of reasoning: the protection of individuals’ rights
trumps the promotion of society’s epistemic welfare.
• “Rights appear to be something we can reason about, and
this reasoning process does not appear to be merely a
calculation of consequences” (Scanlon 1978, 5).

13. A. The interests of
speakers
• Individuals who (wittingly or unwittingly)
diffuse fake news are pursuing legitimate
interests.
• 1. Their legitimate interest in self-
expression: individuals have an
interest in sharing their understanding
of themselves and of the world.
• 2. Their legitimate interest in freely
associating with others: promoting
specific content in social media
facilitates association with like-minded
individuals.

14. B. The interests of
audiences
• Democratic citizens have a fundamental
interest in being treated as autonomous
agents by their government.
• Laws that aim to protect the mental
environment of citizens against deceptive
speech (or other kinds of speech) do not
meet this requirement.
• They imply that citizens are unable to decide
what to believe by relying on their own
cognitive resources (i.e. that they are not
autonomous rational agents).

15. Scanlon’s view
• “There are certain harms which, although they would not
occur but for certain acts of expression, nonetheless cannot
be taken as part of a justification for legal restrictions on these
acts”
• “These harms are: (a) harms to certain individuals which
consist in their coming to have false beliefs as a result of
those acts of expression; (b) harmful consequences of acts
performed as a result of those acts of expression, where the
connection between the acts of expression and the
subsequent harmful acts consists merely in the fact that the
act of expression led the agents to believe.”
-A Theory of Freedom of Expression (1971)

16. 3. Expression and
autonomy: responding
to the free speech
objection

17. Autonomy and free speech
• Philosophical tendency to consider that the fewer restrictions
over speech there are, the more autonomous citizens are.
• We mistakenly assume that having been exposed to a
certain kind of speech, an audience is always free to
decide how to react: what belief to form and what
attitude to adopt.
• This is overly simplistic: having access to more speech does
not necessarily make one more autonomous; some speech
effectively undermines autonomy.

18. What is autonomy?
• Rational self-government: “The capacity
to be one's own person, to live one's life
according to reasons and motives that are
taken as one's own and not the product of
manipulative or distorting external forces”
(Christman, 2015).
• Reason-responsive requirement: an
agent is in a position to appreciate the
reasons that she has to do certain things
considering the goals she freely sets for
herself.

19. E.g. Sarah and the Green
Party
• E.g. Let us say that in country x, the Green
Party proposes regulations that would be the
most efficient to protect the environment. If
Sarah strongly desires to vote for the party that
will most efficiently protect the environment,
then she has a reason to vote for the Green
party.
• Forms of speech that make it more difficult for
her to appreciate this reason (as well as other
reasons that she has) decrease her level of
autonomy.

20. Fake news vs. autonomy
• As an instance of misinformation, fake news is a form
of speech that decreases personal autonomy.
• It does so by interfering with our capacity to
appreciate reasons; we could even say that they create
fake reasons.
• E.g. Wanting to protect one’s children’s health, but
believing that vaccines are dangerous.

21. How does fake news work?
• See (Levy, 2017) for a general discussion.
• Truth effect (Dechêne et. al, 2010).
• We tend to treat information from unknown sources
as credible (Rapp, 2016)
• We sometimes acquire beliefs from fictional sources
(Prentice et. al, 1997) even when we know they are
fictional (Marsh and Fazio, 2006).
• We sometimes fail to recall the source of
information (Marsh et al., 2016).
• Fake news engenders strong emotions such as
disgust (Vosoughi et. al, 2018; Peters, Yashima an
Clarke, 2009).

22. Fake news and false
advertising: an analogy
• The U.S. Federal Trade Commission enforces
truth-in-advertising laws according to which “all
advertisements must be truthful, not misleading,
and, when appropriate, backed by scientific
evidence.”
• Like fake news, false advertising hinders our
capacity to appreciate the reasons we have to
purchase (or not to purchase) a product or
service.
• By doing so, it decreases our autonomy.

23. What about the
interests of speakers?
• Legal prohibitions against fake news also
affect the autonomy of speakers, including
those who unwittingly share fake news.
• Yet, social media platforms provide them
with alternative ways of expressing their
point of view.
• Prohibitions against fake news are not
prohibitions of specific content, they are
prohibitions of a certain technique of
expression.

24. Summary
• Question: Should liberal democratic states coerce social
media into removing fake news from their platform?
• Main claims:
• They have reasons to do so considering the importance of
testimony for the pursuit of our individual interests.
• Philosophers who endorse the autonomy defense of free
speech have reasons to accept legal regulations against
deceptive speech.
• There may be a different kind of reasons to oppose such
prohibitions, for instance considerations of efficiency.

25. Thank you