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Fake News and the First Amendment
We Already Have a 
Solution to Fake News: It’s Called the First Amendment Oct 9, 2017 13 min read Fake news isn’t suddenly ruining America, but putting government in charge of deciding what news is fake will. In the wake of President Donald Trump’s victory in the 2016 election, numerous media outlets ran stories claiming […]

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June 29, 2020

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We Already Have a 
Solution to Fake News: It’s Called the First Amendment

Oct 9, 2017 13 min read

Fake news isn’t suddenly ruining America, but putting government in charge of deciding what news is fake will.

In the wake of President Donald Trump’s victory in the 2016 election, numerous media outlets ran stories claiming that many websites had published false stories that helped Trump beat Hillary Clinton.


Since then Left-leaning opinion writers have called for a solution to this alleged epidemic. The New York Times reported in January that Silicon Valley giants Facebook and Google will team up with legacy media outlets to fact-check stories and curtail the proliferation of “fake news.”


However, intentionally misleading news has been around since before the invention of the printing press.


In fact, our Founding Fathers grappled with this very issue when they created our system of government.

They saw that while it was tempting to censor fake stories, ultimately the truth was more likely to be abused by an all-powerful government arbiter than the filter of unimpeded popular debate.

Attempts to weed out factually incorrect news reports can quickly morph into fact-checking and manipulating differences in opinion.

Fortunately, there have been few serious calls in the United States for official censoring of political news or media, in contrast to most of the world, including Europe. Freedom of thought, freedom of the press, and even the freedom to be wrong make America great and exceptional. In addition to preserving liberty, our free-wheeling tradition gives the United States an edge in adapting to the increasingly decentralized media landscape that is a natural product of the Internet Age. Most importantly, it produces a more critically informed populace in the long term.


The Founders and the Free Press

The Founding Fathers were well aware of the power of the press, for good or ill. After all, many of them, such as Samuel Adams, Benjamin Franklin, and Thomas Paine, were newspapermen and pamphleteers.

The revolutionary ideas they disseminated throughout the colonies found eager readers, putting them high on King George III’s enemies list.

Three years after the Constitution was ratified, the American people amended it by adding the Bill of Rights, which included the First Amendment and its protections of the media. However, the Founders understood that a free press was not an entirely unqualified blessing; some had reservations.

Elbridge Gerry, who was present at the Constitutional Convention, lamented how con artists in his home state were manipulating the people. “The people do not [lack] virtue, but are the dupes of pretended patriots,” Gerry said at the convention. “In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute.”

The Founders saw that while it was tempting to censor fake stories, ultimately the truth was more likely to be abused by an all-powerful government arbiter than the filter of unimpeded popular debate.

Benjamin Franklin also warned about the power of the press, which the public must put so much trust in. In a short essay, Franklin explained how the press acted as the “court” of public opinion and wielded enormous unofficial power.

For an institution with so much influence, Franklin noted that the bar for entry into journalism is remarkably low, with no requirement regarding “Ability, Integrity, Knowledge.” He said the liberty of the press can easily turn into the “liberty of affronting, calumniating, and defaming one another.”

The Founders wrote constitutional protections for the press with open eyes, as their written remarks record. Yet, the evils that come through the occasional problems of a free press are heavily outweighed by its benefits. Lies may proliferate, but the truth has a real chance to rise to the top.

Thomas Jefferson said that the most effectual way for a people to be governed by “reason and truth” is to give freedom to the press. There was simply no other way. He wrote in a letter to Gerry:

I am […] for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.

Liars and scandal mongers may occasionally have success in a system without censorship, but truth was ultimately more likely to be found when passed through the people as a whole. Jefferson wrote:

It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. And hitherto the public judgment has performed that office with wonderful correctness.

Despite full knowledge of the media’s often unscrupulous power over public opinion, the Founders chose to grant broad protections to a decentralized press, opting to place their faith in newspapers checking one another with more efficacy and less risk of bias than heavy-handed government crackdowns.

When the Federalist Party passed the infamous Alien and Sedition Acts under President John Adams to clamp down on “false, scandalous and malicious writing” against the government in the midst of the “Quasi War” with France, there was an immense backlash. A few journalists were arrested, but the governing party was crushed in future elections and ceased to exist shortly thereafter. In the United States, press freedom would become an almost unquestioned element of American culture and policy.

Things worked out differently across the Atlantic. In France, a popular uprising, stoked by a rabid press, led to mob violence, tyranny, and oppressive censorship. Revolutionary scribblers initially brought an end to the Old Regime and the royal restrictions on speech, but freedom of the press didn’t last. After the monarchy was crushed, the revolutionaries censored the press even more ruthlessly than had the Bourbon kings. The radicals argued that press freedom was leading people astray and impeding their revolution.

Maximilien Robespierre, leader of the Jacobin party, called journalists “the most dangerous enemies of liberty.” Robespierre and his allies in the French government created a state-sponsored newspaper to counter what they saw as the media’s lies. Then, seeing that even that was not enough to prevent alternative opinions from growing, began to arrest and execute those who opposed the policies of the government. Robespierre’s “Reign of Terror” gripped France for more than a year, during which 16,594 official death sentences were handed out.

In the mid-20th century, the American press became more centralized and the country opened its media sector to many of the same problems that had plagued European media.

Calls for liberty ended with censorship and ultimately the guillotine for unbelievers. Clearly there was a difference between the American and French regimes and cultures, both nominally standing for liberty, but arriving at radically different ends.

A Frenchman who was a keen observer of both systems explained why freedom of the press worked out so differently in these sister republics.

Tocqueville, the United States, and France

Alexis de Tocqueville caught on to why liberty of the press worked so much better in the United States than in his home country. One system was almost entirely free from suggestions of government censorship and the other perpetually in danger of falling prey to the “instincts of the pettiest despots.”

Americans understood, wrote Tocqueville in his book Democracy in America, that creating a government body with the power to assess the truth in media would be far more dangerous than any system of press freedom. They instinctively knew that:

Whoever should be able to create and maintain a tribunal of this kind would waste his time in prosecuting the liberty of the press; for he would be the absolute master of the whole community and would be as free to rid himself of the authors as of their writings.

In other words, the creation of such an official “court” to oversee media truth would logically end in absolute tyranny. Tocqueville concluded that “in order to enjoy the inestimable benefits that the liberty of the press ensures, it is necessary to submit to the inevitable evils that it creates.”

Fortunately, America had a diverse and highly decentralized press from the beginning. Not so in France, which had a highly centralized press both in terms of geography and number of media organizations. Therefore, Tocqueville wrote, in a centralized media environment such as France, “[t]he influence upon a skeptical nation of a public press thus constituted must be almost unbounded. It is an enemy with whom a government may sign an occasional truce, but which it is difficult to resist for any length of time.”

France never really changed. It continued a cycle of crackdowns on the free press as new regimes took power. Instead of decentralizing the press of the monarchical regime, each successive set of revolutionaries seized the central apparatus for their own purposes. In 1852, when the Second Empire under Napoleon III took power, the government said
that censorship would be implemented for public safety.

A petition message to the legislative body concluded: “As long as there exists in France parties hostile to the Empire, liberty of the press is out of the question, and the country at large has no wish for it.”

Though President Trump has caused concern by calling members of the press “enemies of the people,” his threats against the press come through mockery and rebuke rather than official sanctions. Presidential media hating has been around since George Washington was in office, but there have been few serious proposals to actually crack down on reporting.

By contrast, the press is treated quite differently in France, where citizens are placed on a 44-hour legal media blackout on the eve of elections. As USA Today reported, in the days leading up to the French presidential election, the media were warned not to report on data leaks from candidate Emmanuel Macron’s campaign. The French election commission said that the leaks likely contained some fraudulent data, i.e. “fake news,” and any reporting on it or even passing it along on social media could lead to criminal charges.

franceELECTION DOCUMENTS for French presidential candidates Emanuel Macron and Marine Le Pen. (credit: ERIC GAILLARD/ NEWSCOM)

Jim Swift of The Weekly Standard pointed out the obvious: “This is censorship, plain and simple. In the Internet Age, reporters and citizens around the globe can share information—be it about the Macron hack or not—on Twitter, Facebook, or on their websites. The French press and citizenry? Repressed.”

But The New York Times praised the reporting ban, and emphasized the benefits of the centralized French system over the more freewheeling ones in Britain and the United States. In a recent article, The Times noted:

The contrast may have been amplified further by the absence of a French equivalent to the thriving tabloid culture in Britain or the robust right-wing broadcast media in the United States, where the Clinton hacking attack generated enormous negative coverage.

“We don’t have a Fox News in France,” said Johan Hufnagel, managing editor of the Left-wing daily Libération, according to The New York Times. “There’s no broadcaster with a wide audience and personalities who build this up and try to use it for their own agendas.”

A similar scandal occurred in the United States when Wikileaks published thousands of emails from the Democratic National Committee that cast the Clinton campaign in a negative light. Yet, there was no censorship of the information; the American people would not have stood for it.

Who has the better system? Since the adoption of the U.S. Constitution, France has gone through five republics, two empires, and four monarchies. Despite the bumptious nature of American politics and media, it would be foolish to bet on France’s fifth republic outlasting America’s first.

Americans have been lucky to have a decentralized media through most of their history and a culture that strongly embraces the idea of a truly free press. Those arrangements have had a long-lasting impact on American institutions and have made the country resistant to authoritarian impulses. However, in the mid-20th century, the American press became more centralized and the country opened its media sector to many of the same problems that had plagued European media.

Some glamorize the era in which a few television companies and big newspapers became media gatekeepers, similar to the model that currently exists in France. This nostalgia for “more responsible” journalism ignores the fact that some of the most egregious fake news blunders were perpetrated by an unchecked centralized press. Perhaps the worst offense of all came from The New York Times.


The New York Times and the Fraud of the Century

Today, a 30-foot-long bronze wall stands in Northwest Washington, D.C., and on this wall is the simple image of a wheat field. It is a monument to the victims of The Holodomor, a monstrous genocide committed by one of the most ruthless and authoritarian regimes in human history.

In 1932, Soviet dictator Joseph Stalin, frustrated that he could not crush Ukrainian nationalism, ordered that grain quotas for Ukrainian fields be raised so high that the peasants working the fields would not be left with enough food to feed themselves. NKVD troops collected the grain and watched over the populace to prevent them from leaving to find nourishment elsewhere.

As a result of these policies, as many as 7 million Ukrainians died of starvation in 1932 and 1933.

But while Stalin was conducting an atrocity with few equals in human history, The New York Timeswas reporting on the regime’s triumphs of modernization.

Pulitzer in hand, Walter Duranty proceeded to perpetrate perhaps the worst incident of fake news in American media history.

Walter Duranty, the Times Moscow bureau chief, won the 1932 Pulitzer Prize for Correspondence for his 1931 series of articles on the Soviet Union. Pulitzer in hand, he proceeded to perpetrate perhaps the worst incident of fake news in American media history at a time when Americans relied on the Times and a handful of other large media outlets to bring them news from around the world.

Duranty’s motivation for covering up the crimes taking place in Ukraine has never been fully ascertained. However, it undoubtedly gave the Bolshevik sympathizer better access to Stalin’s regime, which routinely fed him propaganda.

While privately admitting that many Ukrainians had starved to death, Duranty sent numerous reports back to the United States praising the good work of the Soviet government. He reported that there had been some deaths from “diseases due to malnutrition,” but called the suggestion that a widespread famine was taking place “malignant propaganda.”

These reports were highly influential in the United States and had enormous impact on U.S.-Soviet relations. Historian Robert Conquest wrote in his book, The Harvest of Sorrow: Soviet Collectivization and the Terror-Famine, that due to the perceived credibility of The New York Times, the American people accepted the fraudulent accounts as true.

THE DISPOSSESSED KULAKS in front of their confiscated home, Ukraine. THE DISPOSSESSED KULAKS in front of their confiscated home, Ukraine. (credit: ALBUM / FINE ART IMAGES / NEWSCOM)

Sally J. Taylor wrote in her book Stalin’s Apologist that Duranty’s reports helped convince President Franklin D. Roosevelt to extend official diplomatic recognition to the Soviet government in November of 1933. She wrote: “[A]lmost single-handedly did Duranty aid and abet one of the world’s most prolific mass murderers, knowing all the while what was going on but refraining from saying precisely what he knew to be true.”

Though Duranty’s reporting was a lie, The New York Times never questioned its authenticity and dismissed charges that their reporter was cooking up false reports. Famed British journalist Malcolm Muggeridge wrote of this willful self-deception in his autobiography:

If the New York Times went on all those years giving great prominence to Duranty’s messages, building him and them up when they were so evidently nonsensically untrue […] this was not, we may be sure, because the Times was deceived. Rather it wanted to be so deceived, and Duranty provided the requisite deception material.

In the more centralized national media landscape of the mid-20th century, a fraudulent story like that published in the Times was both more likely to be believed and less likely to be debunked.

The Truth Cannot Be Centrally Planned

But America’s evolving media landscape is again moving toward decentralization. And, fortunately, the First Amendment is a mighty weapon against the suffocating and stultifying suppression of speech that frequently occurs in other nations.

The system the Founders created and intended for the United States was one that they hoped would lead our civilization to the truth. We have acquiesced to the fact that there will always be a great deal that the smartest and the wisest simply don’t know. No earthly, impartial arbiter has the capacity, or should have the capacity, to determine absolute fact for us—especially in the realm of politics, philosophy, and man’s relation to man.

For all the uncertainty and chaos that an unfettered media seem to engender, Americans have been best at ultimately veering closer to the truth than any other people. The First Amendment is one of the greatest of many gifts the Founding generation bequeathed us and has been a truly defining feature of American exceptionalism with few comparisons around the globe.

Through all the angst over fake news, fraudulent journalists, and media hyperbole, the American republic will survive. In the end, fake news peddlers will only damage their own reputations and bring doubt on their reporting. Fortunately, our freedom isn’t dependent on the musings of the White House press corps. It hinges on the Constitution and the liberty it was created to protect.

Mr. Stepman is a contributor to The Daily Signal, the multi-media news outlet of The Heritage Foundation.