Does the Concept of Fake News Undermine Freedom of Speech?

A powerful politician falsely asserts that his critics among the media are purveyors of ‘fake news’. Could such assertions undermine freedom of speech?’

In order to assess whether the assertions like that of the politician undermine freedom of speech, one first needs to assess what the point or justification of a freedom of speech principle is. Accordingly, I shall approach this essay in the following manner. First, I shall make two assumptions about the reach and impact of the politician’s assertion. Secondly, I shall examine two consequentialist arguments that seek to justify free speech and assess whether, according to these, such assertions can undermine free speech. Having pointed out that both of these arguments mean that a free speech principle only covers certain types of speech, it will then be considered whether one can ever say that an argument seeking to justify a freedom of speech principle is the ‘best’ or ‘right’ one. It will ultimately be concluded that one’s argument for a freedom of speech principle depends on one’s politics and values. Therefore, whether assertions like the politician’s undermine freedom of speech depends on how one argues to justify a freedom of speech principle, which in turn depends on one’s politics and values.

The assertion

In the above question a ‘powerful politician falsely asserts that his critics among the media are purveyors of ‘fake news’. For the purpose of this essay, I will make two assumptions in regard to this. Firstly, that the politician’s assertion that his or her media critics are spreading ‘fake news’ is a public one, and thereby conveyed to a significant number of the voting population.  Secondly, that some of those who hear his assertion believe it to be true or at least are caused to have some doubt about the reliability and truthfulness of the media critics in question.  In addition to these assumptions, it should also be noted at the outset that the politician’s assertions are described as false, meaning his critics in the media are not in fact purveying fake news.

Freedom of Speech

For the purpose of this essay, I shall use Barendt’s definition of freedom of speech principle as ‘a principle under which speech is entitled to special protection from regulation or suppression’[1]. There are many issues and questions that arise from this. What exactly constitutes speech? Does suppression include acts such as speakers being banned from university campuses? However, here I am primarily concerned with the justification or an argument for a freedom of speech principle.  In other words, why should speech be given special protection? This is because, as mentioned above, to ascertain whether something undermines freedom of speech, one must ascertain what the point or purpose of the freedom of speech principle is in the first place. For example, the Law faculty implements a rule banning students wearing trainers inside of it. The justification of this is to make their students look smarter. The students begin wearing flip-flops instead, and the ban in thereby undermined as the point of it has been undermined and thwarted. Below I shall examine two justifications for a freedom of speech. This is by no means an exhaustive list, but seeks to comprehensively examine two principle theories in the space available.

• The argument from self-government and democracy

This justification for a free speech principle is based on Meiklejohn’s work[2]. His argument is as follows.  He says that a self-governing society is one in which the rulers and ruled are the same people. In this society, men and women are politically free because they are ‘governed-by themselves’[3]. He goes on to argue that freedom of speech is necessary in a self-governing society. Here, while speech can be abridged, freedom of speech cannot[4]. Meiklejohn gives the example of a town hall meeting as self-government in in simplest form. All are welcome to come, all are political equals and all have a right and duty to their own thoughts and to express these thoughts because freedom of speech must not be abridged[5]. However, to open and continue the meeting by way of using a chairman to quiet the crowd and to choose those to speak, speech must be abridged. This is because, according to Meiklejohn, what is essential for the purpose of freedom of speech is ‘not that everyone shall speak, but that everything worth saying shall be said’[6]. All sides of an argument must be heard, because for a society to be self-governing, the men and women in that society must judge ideas and proposals for themselves. Others must not do it for them. Therefore, for Meiklejohn, the justification or point of a freedom of speech is principle is that it is necessary in order to have, support and promote a self-governing, democratic society.

However, there are several things to note about this argument.  Firstly, it is incredibly narrow in scope as the argument only applies for a freedom of speech principle in ‘self-governing society’. Schauer points out that this theory is ‘contingent upon one particular theory of government’[7]. This is a valid point. Meiklejohn’s justification of freedom of speech, even if sound, is only applicable to democratic political institutions. Yet, a freedom of speech principle can exist and indeed, may be useful, in societies which are not self-governing. Even a society governed by a tyrant may have a reason for freedom of speech. For example, a tyrant may want to build a new railway so wants a public consultation or meeting on the best way to do so. This would be his version of Meiklejohn town hall. He or she may do this in order to garner and maintain public support for said railway, but also to ascertain the best method of building the railway.

Secondly, this argument would only mean even within democratic societies only a small range of speech would be protected. This is because this argument for a freedom of speech principle means that, as Barendt points out, the principle would only cover political expression[8]. Schauer writes that under Meiklejohn’s theory freedom of speech would need to be protected for two main reasons[9]. Firstly, so the electorate can be provided with the information need to exercise its power and make intelligent decisions. Secondly, so they can criticize government officials and hold them to account.  Yet, in many democratic societies protection is afforded to non-political speech. For example, hate speech, pornography and art. Neither of these fall within the two reasons described previously. The electorate would not need to hear or use malicious racial abuse in order to make decisions or criticize politicians.  Nor, as Barendt points out[10], would speech that advocated for a change in the governance of society be protected, for example, a movement from a democracy to a socialist republic. Therefore, this justification for a freedom of speech principle is narrow in what speech it covers and does not provide any reason for the principle applying to pornography, art and political speech advocating alternatives to democracies at it often does in liberal democracies.

A third point can be made about this justification. If a democratic self-governing society is the basis for a free speech principle, then democratic agents of that society surely should be able to regulate free speech? Indeed, as Barendt points out, a government may think the the values of self-governing society can best be preserved by suppressing free speech.[11] Schauer argues that ‘the very notion of popular sovereignty supporting the argument from democracy argues against any limitation on that sovereignty, and thereby argues against recognition of an independent principle of freedom of speech’[12]. This is an important point. For a democratic society to be truly self-governing, there cannot be limits on their ability to self-govern. Therefore, to be truly self-governing they cannot be prohibited from legislating to regulate or prohibit some speech.

Taking this to be the justification of a free speech principle, it must now be considered whether a cry of ‘fake news’ in the context above undermines this version of the free speech principle. A helpful way to do so is by using Meiklejohn’s town hall analogy. A woman is chosen to speak in the town hall making a truthful criticism of a town member who is a prominent politician. After she has concluded, a cry of ‘fake news’ from this powerful politician, leads many in the room to believe her speech to be false, essentially making anything she says redundant. Her cry may be ‘heard’ by the other town members, but it is soon disregarded. They have not heard any substantive rebuttals from the prominent businessman, but have instead rejected the woman’s ideas. Does this undermine a freedom of speech principle that is justified by the above argument? Not necessarily. This is because the criticisms that he calls ‘fake news’ may not be anything to do with politics. They may be claims about his private life and habits that he is attempting to silence. For his call of ‘fake news’ to undermine this conception of freedom of speech, the politician would need to be calling political speech ‘fake news’. Moreover, he would need to do so in a self-governing, democratic society, rather than another form of society. Therefore, for the politician’s assertion of ‘fake news’ would only undermine freedom of speech if they were said in a democratic self-governing society and were directed towards political speech.

• The argument from truth and knowledge.

This argument is based on Mill’s work in his book, On Liberty[13]. Mill’s view is that the justification of a free speech principle is to secure and promote knowledge. He sets out the argument as follows for why opinions, be they true of false, should not be suppressed in the following way. Firstly, in regard to a right or true opinion, if this is suppressed the human race is denied the opportunity to correct their own erroneous views. There is always a chance that opinion which an authority tries to suppress may be true and to refuse to ever hear the opinion ‘assumes our own infallibility’[14].  Secondly, if the wrong opinion is silenced, the human race is denied the opportunity to gain a clearer view of the truth, which would be produced when they it collided with the erroneous opinion. This, Mill says, is because even if the the silenced opinion is wrong it may contain a portion of the truth. The prevailing opinion rarely contains the whole truth, and we can only find the remainder of the truth by way of the clash of different opinions. This is why we have opposition parties to the party in power in politics. Thirdly, even if the prevailing, received opinion is the whole truth, without opposition it will be held as a prejudice. People will have no understanding of its rational grounds.  Fourthly, people will lose any real belief or heartfelt conviction in these true received opinions if there is no opposition. The opinion becomes a ‘dead dogma’[15]. Therefore, for Mill, the justification for a freedom of speech principle is that it promotes and secures knowledge. The suppression of both right and wrong opportunity denies humans the opportunity to promote and secure knowledge and truth.

Again, there are several points to be made about this argument as a justification of freedom of speech. Firstly, as with the above argument, this one too only has a limited breadth. Barendt points out that this argument would likely not cover speech that does not ‘assert any coherent proposition or make a claim which could ever be objectively tested’[16]. For example, a statement of personal abuse such as ‘this person is the ugliest man who has ever existed’.  This is not necessarily a weakness, but does mean the breadth of the principle is narrowed in a similar way to how a free speech principle based on the argument from democracy only applies to political speech. It also, as Barendt says, fails to explain protection that is given to personal abuse and pornography in many societies[17].

Moreover, there are weaknesses in the argument itself. Firstly, Barendt argues that Mill’s argument can be criticised because of its assumption that publicising possible true opinions is ‘the highest public good’[18]. Barendt makes a convincing case for his criticism. Many societies decide other values are more important and protect them accordingly. For example, banning homophobic or racial hate speech. This is because the societies in question are prioritising equality and sensitivities above absolute freedom of speech. Barendt says that a government is entitled to prioritise ‘public order considerations’ over the development of knowledge, in cases where it is worried that inflammatory speech may cause disorder[19]. Indeed, Schauer points out that some opinions are suppressed for reasons unrelated to their truth or falsity[20]. For example, of an experiment which results shows that men are marginally better than women at a specific game. The results are suppressed as it is feared that sexists will place too much prominence on their results. Of course, I accept there will be times when publishing true opinions is deemed to be the highest public good. Yet, Mill is wrong to assume that this will always be the case.  

In addition to this. Barendt points out that Mill makes an assumption that that freedom of speech necessarily leads to the discovery of truth and the bettering of knowledge[21]. While, Barendt says, this may be true in learning environments like universities, it is hard to say the same about the whole of society. This is a fair criticism. Humans, as Mill himself is keen to point out, are not infallible. There is nothing to suggest that given both sides of an argument, a human would always reach the ‘true’ or ‘right’ conclusion. Indeed, history shows this not to be the case. Barendt gives the example of the Nazis coming to power in Germany, despite there being ‘relatively free political discourse’ prior to their election[22]. Therefore, it is not clear that just because all opinions are heard that the truth will necessarily be discovered.

Taking this to be the justification of a free speech principle, it must now be considered whether a cry of ‘fake news’ in the context above undermines this version of the free speech principle. The question states that the politician ‘falsely asserts’ that his critics are purveying ‘fake news’ (i.e. their criticisms are true) and an assumption of this essay is that a significant number of people believe this cry of ‘fake news’ to be true.  It can therefore be argued that the powerful politician is effectively ‘suppressing’ a right opinion, or the truth. The citizens over which he provides are not getting the the chance to correct their erroneous views. Free speech is undermined. However, this would only be the case if the criticisms related to a claim that could be objectively tested. As the question states that the politician ‘falsely’ states that his critics are spreading ‘fake news’ it is likely in this case that they are making claims that can be objectively tested. For example, the size of a crowd at a politician’s speech.

Which argument for a free speech principle, if any, is the ‘right’ one?

Taking into account the above, it seems that there are two determining factors in working out whether the politician’s assertions undermine freedom of speech. Firstly, what argument one uses to justify a freedom of speech principle and secondly, what the criticisms that that the politician calls ‘fake news’ relate to. If one uses the argument from democracy and self-governance, if the criticisms relate to political expression then the cries of ‘fake news’ will undermine freedom of speech. If one uses the argument from truth and knowledge, if the criticisms could be objectively tested then the cries of ‘fake news’ would undermine freedom of speech. For the above reasoning, it seems likely that his critics are making such criticisms. To answer the essay question more concretely, one would ideally be able to identify one of the many arguments for a free speech principle as the ‘best’ or ‘right’ one. However, as shown above, both arguments that I have highlighted have their weaknesses. The argument from democracy and self-government does not address the problem that for a society to be truly self-governing, there cannot be any limits on their sovereignty, such as a free speech principle preventing them from regulating speech. The argument from truth wrongly assumes that truth will always be the highest value public good and that the availability of all the opinions will cause the truth to be discovered.  From the above, it would be difficult to conclude that there is a single justification for a freedom of speech principle, from which we could decide whether or not the politician’s assertions undermined free speech. Other theories justify a freedom of speech principle on the basis of securing and promoting human dignity and equality[23], or autonomy[24]. These, however, are not free from criticism either.[25] It is therefore difficult for one to say which argument for a free speech principle is the ‘best’ or ‘right’ one, and in turn difficult to say whether or not the politician’s assertions would undermine freedom of speech.

An explanation for this difficulty can be found in the work of Stanley Fish who famously declares that there is ‘no such thing as free speech’[26]. His argument is that freedom of speech is ‘not an independent value, but a political prize’[27]. There is no ‘natural content’ to freedom of speech[28]. Instead, it is given a content that serves the political purpose of the person invoking it. Freedom of speech, for Fish, is not a general principle but one understood by the exclusions that give it its meaning. For example, saying all speech is tolerated apart from that which which promotes Nazism. It is the exclusion of speech promoting Nazism that gives freedom of speech its meaning here. It is what remains when one has decided what types of speech are not allowed. The value of a freedom of speech principle is thereby produced by its exceptions. Fish’s argument can be further demonstrated by using the argument set out above that the justification of a free speech principle is to promote truth. Fish argues that by specifying a good here (truth), one can then argue that a particular form of speech may undermine the realisation of this good[29]. For example, speech encouraging the establishment of a tyranny, or speech deliberately intended to prevent one reaching the truth – these are the exceptions. These exceptions and the line drawn between what speech is acceptable and what should be regulated are in turn influenced by one’s politics.  A free speech principle can therefore have no objective natural content (i.e. seeking to promote knowledge and truth), instead the principle will reflect the political views of the person espousing it.  Fish states that this is because for consequentialists free speech means ‘free speech so long as it does not subvert our core values’.[30]

Yet it is perhaps too strong to conclude that there is no such thing as no such thing as free speech. Rather, I would suggest that there is no objective free speech principle. There is no ‘right’ or better justification for a free speech principle. It is better to conclude that one’s conception of a free speech principle will ultimately depend on one’s values and politics. This explains the reason that a freedom of speech principle is invoked in so many different contexts in modern day society. Whether the politician’s assertions undermine or do not undermine free speech will depend on what one believes the justification of a free speech principle to be. This in turn depends upon one’s core values (democracy, truth and knowledge, autonomy etc) which is a political choice. It does not mean that there is ‘no such thing as free speech’, but that a free speech principle does not have a fixed content or justification as one’s conception of free speech will ultimately depend on one’s views and politics. Therefore, it is impossible to give a concrete yes or no answer as to whether the politician’s assertions undermine freedom of speech. Instead, this will depend on how an individual chooses to justify a freedom of speech principle.  

Conclusion

In conclusion, whether an assertion by a powerful politician that his critics among the media are purveyors of ‘fake news’ undermines free speech or not, depends upon what one thinks to be the justification of a free speech principle. This is in turn dependent on one’s political views and values. Accordingly, a free speech principle has no objective content and it cannot be said for certain whether cries of ‘fake news’ like that of the politician will undermine free speech. For example, if one chooses the argument from democracy and self-government, then the cry of ‘fake news’ will undermine free speech if the criticisms being made were political ones. Whereas, if one chooses the argument from truth and knowledge, then the cry of ‘fake news’ will likely undermine free speech.

[1] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 7

[2] Alexander Meiklejohn, Free Speech and its Relation to Self-Government, (Harper 1948) ch1

[3] Alexander Meiklejohn, Free Speech and its Relation to Self-Government, (Harper 1948) 16

[4] Alexander Meiklejohn, Free Speech and its Relation to Self-Government, (Harper 1948) 19.

[5] Alexander Meiklejohn, Free Speech and its Relation to Self-Government, (Harper 1948) 22.

[6] Alexander Meiklejohn, Free Speech and its Relation to Self-Government, (Harper 1948) 25.

[7] Frederik Schauer, Free Speech: a philosophical enquiry, (CUP 1982) 35.

[8] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 18.

[9] Frederik Schauer, Free Speech: a philosophical enquiry, (CUP 1982) 36.

[10] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 19.

[11] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 19.

[12] Frederik Schauer, Free Speech: a philosophical enquiry, (CUP 1982) 41.

[13] John Stuart Mill, On Liberty, (first published 1859, CUP 1989), ch2.

[14] John Stuart Mill, On Liberty, (first published 1859, CUP 1989), 53.

[15] John Stuart Mill, On Liberty, (first published 1859, CUP 1989), 37.

[16] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 10.

[17] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 10.

[18] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 8.

[19] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 9.

[20] Frederik Schauer, Free Speech: a philosophical enquiry, (CUP 1982) 23.

[21] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 9.

[22] Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 9.

[23] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard 1996), ch8.

[24] Thomas Scanlon, ‘Freedom of Expression and Categories of Expression’, (1979) 40 U. Pitt. L. Rev 519

[25] See Eric Barendt, Freedom of Speech, (2^nd edn, OUP 2007) 14-16.

[26] Stanley Fish, There’s No Such Thing As Free Speech, and it’s a good thing too (OUP, 1994) 90.

[27] Stanley Fish, There’s No Such Thing As Free Speech, and it’s a good thing too (OUP, 1994) 90.

[28] Stanley Fish, There’s No Such Thing As Free Speech, and it’s a good thing too (OUP, 1994) 90.

[29] Stanley Fish, There’s No Such Thing As Free Speech, and it’s a good thing too (OUP, 1994) 19.

[30] Stanley Fish, There’s No Such Thing As Free Speech, and it’s a good thing too (OUP, 1994) 19.