Fake News and Filter Bubbles: Rethinking Counterspeech in the Age of Social Media

Since the 2016 U.S. presidential election, many pundits and politicians have denounced “fake news” as a new, corrosive force in public discourse. While it is commonly agreed that a well-informed public is vital for democracy, attempts at regulating news can be both legally and morally complicated. Based on precedent set in the 1920s, U.S. courts have since held that the best way to deal with bad speech is through better speech. That is, instead of allowing legislation to dictate what people can and cannot say, courts have relied on vocal opponents to provide “counterspeech” that balances out misinformation and reveals truth to the public. In a recent article in the Federal Communications Law Journal, however, Philip Napoli of Duke University’s Sanford School of Public Policy outlined the ways in which this principle of counterspeech might fail to deal effectively with modern problems in public discourse.

The counterspeech principle, Napoli argued, presumes the existence of a well-functioning “marketplace of ideas” where speech and counterspeech can compete for public acceptance. On the assumption that people value the true and reject the false, when ideas compete in this market, false statements should naturally be eliminated. This conveniently leaves First Amendment protections intact—the government doesn’t need to limit false speech, as the marketplace of ideas can take care of that on its own.

In his article, Napoli argued that this marketplace is now no longer reliable. Technology has radically changed how ideas are spread and consumed, and many of the old assumptions underlying the marketplace of ideas no longer apply.

On the demand side, efficiency in any market requires that consumers are exposed to and able to differentiate between high- and low-quality products. Napoli asserted this is no longer the case in the market for news. Online news aggregators routinely tailor news content to individual users, and this means that each reader might see only a single, skewed viewpoint inside his or her personalized “filter bubble.” Without broader exposure to news outlets and sources, consumers are not participating in a truly competitive market, according to Napoli. Furthermore, when consumers do encounter information sources opposing one another, it can be difficult to assess the truthfulness of each viewpoint. Distinguishing between the credibility of the New York Times and the National Enquirer, Napoli argued, was and remains easy. Distinguishing between many online sources is not.

On the supply side of the marketplace of ideas, the situation is just as bad. Quality journalism, Napoli claimed, is becoming less profitable. It has always been expensive to produce well-researched news, but traditional news outlets could generally recoup their costs by selling advertising space and papers. Now that publishing online is effectively free, commentators and copycat Web pages can reuse a traditional outlet’s original work, drawing viewers and vital ad revenue away from the organizations that paid for the reporting. This causes a drop in the return on investment of original journalism.

The production of fake or sensationalist news, on the other hand, is relatively low-risk and potentially high-reward, particularly if a story “goes viral.” These types of incentives, Napoli argued, have driven a recent decline in the proportion of real to fake news.

In a world of perfect competition, people could stop using certain aggregators—such as Google and Facebook—if they believed those aggregators were showing them narrow or sensationalist news. But people haven’t abandoned such aggregators as sources for news, and Napoli cited imperfect competition as one of the reasons why. In a marketplace of perfect competition, consumers would simply move to another platform. In the internet news ecosystem, however, certain aggregrators have substantial market power and influence. Readers cannot switch platforms without sacrificing ease of use, and journalists must continue to work within the incentive structures set up by a small number of companies.

In the final section of his article, Napoli outlined two possible approaches for addressing the problem of fake news.

The first is through a court-led revision of the counterspeech doctrine. Libel laws already limit false speech where there is the possibility of personal reputation damage that is unlikely to be remedied by counterspeech. This policy of taking irreparable damage into consideration could, conceivably, be extended to news released into an algorithmically mediated system. But this would require that some government-sanctioned agency be able to identify false journalistic statements. Napoli argued that this would be difficult and ethically fraught.

Napoli was cautiously optimistic about a possible second approach: news aggregators such as Google, Facebook and Twitter could take up a “public service ethos” and voluntarily work to filter out fake news absent any sort of government intervention. He pointed out that these companies have already shown an increased focus on fact-checking, and while relying on private corporations for our truth may be problematic, it may also be the “lesser of two evils.” The internet was once praised for promising the deconstruction of the homogeneous viewpoints of the early mass-media era, Napoli noted. Today, we may actually need internet aggregators to act as gatekeepers once more.

Article source: Philip M. Napoli. “What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble.” Federal Communications Law Journal 70(1). (2018): 55-104.

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