To protect political speech we must accept the right to lie.
Speech must not be pre-screened for “accuracy.” In China, uttering the truth is restricted. In America, freedom to expose a lie comes with the right to lie. The First Amendment protects the free interchange of ideas without government constraint. The attempt to screen political speech before it is published is an impossible task, one requiring a vast, intrusive “Department of Truth,” publicly or privately administered.
Those reading the allegations of pundits, politicians and government officials on blogs, Twitter accounts and posts recognize that intentional and unintentional misrepresentation of fact is pervasive.
Congresswoman Alexandria Ocasio-Cortez of New York maintains that Facebook’s Mark Zuckerberg has the duty to insure the truth of political ads posted by his company. Zuckerberg summed up his position in a speech at Georgetown University:
“As a principle, in a democracy, I believe people should decide what is credible, not tech companies.”
He’s right. With limited exceptions, those who post on Facebook have the right to make errors, misinform, stretch the truth and yes … lie. This is not the case where the statement incites violence, libels another or interferes with basic rights such as voting rights. But in the absence of those limited exceptions, Facebook need only insure that the reader knows who, or what entity, is the source of the statement. Once that occurs, the congresswoman can believe or disbelieve the statement, or reserve judgment and investigate its accuracy.
The same technology that allows for lies to speed through cyber space is the same technology that can enable the proper vetting of the statement. Once vetted, to paraphrase a California jury instruction: If you learn that the statement was intentionally false, you can disbelieve anything else this source, pundit, political campaign or editorial has to say.
Freedom of political speech requires the citizenry to read critically, and to withhold judgment on allegations that are made to influence opinion or elections. We have the duty to call out the most egregious, vicious and dangerous lies. But we can’t stop them from being uttered unless they constitute an immediate threat or call for violence.
It is too easy, under the pretext of seeking “the truth” for our precious right of speech to be monitored by state agents and institutions.
Another pillar supporting political speech is to recognize that money is essential to project political points of view through existing mass-media outlets. Twitter’s chair, Jack Dorsey, like the congresswoman, is also concerned about media disinformation. His response: Prohibit the posting of all political ads on the Twitter platform. His argument: “A political message earns reach when people decide to follow an account or retweet. Paying for reach removes that decision, forcing highly optimized and targeted political messages on people. We believe this decision should not be compromised by money.”
No, money isn’t speech. But without it, you can’t make the speech reach … unless you are a celebrity, pundit or incumbent. Did Ms. Ocasio-Cortez earn “reach” when she went from Bronx activist to Congresswoman and acquired 5.2 million Twitter followers? Is any misrepresentation by her on Twitter less problematic because she has attained “reach”?
In today’s America, a celebrity or politician can project a political point of view on Twitter — accurate or not — without paying for it. Why then should an opposing view be stifled because money was essential to state that point of view? Doesn’t Dorsey help secure political incumbency by shielding it from the scrutiny of paid ads?
The President has 20 million Twitter followers. Does he need protection from paid political ads? Democrats and Republicans are spending hundreds of millions of dollars to influence the public’s political direction. To pretend money isn’t or shouldn’t be part of the free-speech equation in our political system is a delusion. Prohibiting the purchase of political ads prevents most Americans from impacting and participating in the political process as individuals or as members of groups.
Congresswoman Ocasio-Cortez believes that those judging speech will have the integrity, the ability or impartiality to fairly judge the speech. Dorsey believes that the “purchase” of speech taints its legitimacy. They are both wrong. We must continue to promote the free flow of political speech and resist placing impediments in front of that speech.
Longtime South Pasadena resident Joseph Charney was justice deputy for former L.A. County Supervisor Zev Yaroslavsky, and is also a retired deputy L.A. district attorney, L.A. city attorney and adjunct professor of trial advocacy at Loyola Law School.