Misinformation, Fake News, and the First Amendment


I doubt anybody would claim that misinformation is a good thing, or that fake news are necessary for a healthy competition in the political arena. Yet, misinformation and disinformation are some of the most destructive issues of our time. Ready access to the Internet, which is one of the most important achievements of humanity, coupled with ad-money-hungry social media, have given rise to a phenomenon which wouldn’t be too unrealistic if we called it “survival of the most outrageous.” From teenagers trying to swallow spoonfuls of cinnamon to engineered videos of famed individuals performing unethical acts, the online stage invites the craziest amongst us to present their most outrageous thought products and get rewarded by clicks and likes and comments, and possibly a small share of the media’s ad revenue. And in this competition for attention, who cares about the truth and facts?

If the competition for attention through stating or presenting outrageous falsehoods were limited to the online pastime activities of teenagers, one could probably disregard it as a seasonal fashion trend, and would hope that it dies as quickly as it rose. Unfortunately for anyone who cares about facts and truth, that has not been the case. In the unprecedented political circus that we have had the misfortune of witnessing, elected representatives compete to steel the trophy of the most outlandish and demonstrably false statements from each other. From statements about Jewish space lasers causing wildfires in California, to accusations about Judge’s daughter displaying, on their social media pages, picture of former president behind bars, to the most outrageous claim that FBI agents were instructed to assassinate the former president when executing a search warrant, most politicians, pundits, and opinion show hosts, if not some news anchors, actively participate in the competition. The prize, of course, is more successful fundraising for politicians, and larger viewership and ad revenue for news outlets.

Despite the lucrative market created -thanks to the social media for serving as a testbed- for the most outlandish and outrageous statements regardless of their truth, no one admits to be participating in the misbehavior. Everyone seems to be complaining about the spread of misinformation. Some have even made complaining about fake news part of their daily routines. And probably this is one of the very rare issues that everyone, regardless of their political preference or affiliation, agrees to be a detriment to the society, and something that needs swift and decisive actions to control and/or eliminate.

Like many others, I have been thinking about this issue, and especially about how governments prevent and/or limit falsehoods from entering official records. I remembered how, every year, when signing tax forms, I feel the weight of responsibility for my statements (and am compelled to review the forms one more time, to make sure that I am not inadvertently making an incorrect statement), when I read the lines right above the signature line, saying “Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.” I also remembered how witnesses in a trial are asked to swear under oath to “tell the truth, the whole truth, and nothing but the truth,” and that they can be charged with perjury if they are found to have lied under oath. There is no doubt that these mechanisms are not perfect and foolproof, and obviously there have been many cases of tax evasion and perjury under oath. Nevertheless, it is undeniable that they have prevented false information from entering official records and documents in a vast majority of cases.

Now, imagine a world in which, at some point of our lives, e.g., when obtaining our first driver’s license (or maybe when obtaining US visas for those traveling to the country from abroad), we were all sworn, under oath, and under penalties of perjury, to “tell the truth, the whole truth, and nothing but the truth, for the rest of our lives.” Don’t you think that it would be a better world than the one we live in right now? Wouldn’t we all think twice before making an outrageous and attention-grabbing statement, to make sure that it is actually factual and not fictional? Wouldn’t that rid us from a majority of fake news and misinformation? So, I am asking again, don’t you think that it would be a better world than the one we live in right now? And, is it really too far-fetched and implausible? I submit that it is not.

I know, some will raise questions about its conflict with the First Amendment, or that it could serve as a powerful weapon in the hands of authorities to persecute innocent citizens. I disagree. Allow me to explain:

Of those who raise concerns about potential conflict with the First Amendment, I ask: do you believe the founding fathers’ intent for introducing the First Amendment was to protect the spread of falsehoods and misinformation? Or was it to protect freedom of citizens to criticize the wrongdoings by the government, and all branches of it for that matter, without the fear of retaliation and prosecution? Can we really justify resorting to the First Amendment to protect the spread of fake news and false information? And how about all those tax forms and possibly other forms that we complete and file every year? Can we claim that the requirement to declare, under penalties of perjury, that the statements therein are correct, to the best of our knowledge albeit, is against our First Amendment rights? Or can someone who is about to sit at the witness stand in a trial, refuse to swear under oath to tell the truth, and claim that it violates their First Amendment rights?

I believe the founding fathers did not intend, by introducing the First Amendment to the Constitution, to free us from being responsible for what we say. They did not intend to facilitate and empower corruption in the society, by enabling us to freely lie about anything and everything. It was rather meant to make every single one of us feel more responsible, by way of protecting our speech, to stand up against injustice, wrongdoings, and falsehoods. If one believes the above, and does not intend to knowingly spread misinformation, then they would not feel restrained by being under oath at all times.

And to those who believe a requirement of being under oath at all times could serve as a powerful weapon in the hands of authorities to persecute innocent citizens, I say: we already have many examples of situations in which we are required to be under oath or declare statements under penalties of perjury, as mentioned above. Do you believe that those systems have failed? and that the authorities have used those mechanisms to control or persecute innocent citizens? If the answer is no, then why do you think it would be any different if we were to be under oath at all times?

I know many will opine that this is such a radical and impractical proposal. It is even very likely that the loudest opponents of this proposal will be those who are, ironically, the most vocal critics of fake news. But how about we let this be a litmus test of genuineness of us all when we complain about misinformation and fake news. Let’s see who opposes this proposal, and how they try to justify their opposition, and that they really need to not be under oath at some times. Maybe this way we can finally identify the real sources of fake news and misinformation.


2 responses to “Misinformation, Fake News, and the First Amendment”

  1. In light of the recent bill signed into law in Louisiana that requires the Ten Commandments to be displayed in every classroom in public schools and colleges, and the widespread support for it from GOP including from its current leader and front runner as the nominee for the presidential election, and considering the fact that lying is considered a sin in almost all branches of Abrahamic religions especially Christianity, mostly based on the 8th (or 9th in some branches) commandment that says “Thou shalt not bear false witness against thy neighbor”, it seems to me that at least one of the two major parties should not have any problem with the above proposal of everyone being under oath at all times. On the other hand, the constant attacks that the other party members receive based on false claims and misinformation, should be a strong motivation for the blue party to also be in line with adopting a proposal like this. At this point it seems like a no-brainer to me that this proposal serves the objectives of both major parties, and most likely the independents as well. So, why not just pass a law to summon everyone living in the United States (legally or illegally) to the state or federal courts and put us under oath for life. And do the same for everyone obtaining their first driver’s license or entrance visa to the US from this point on.

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