Today's episode is the Fake News panel from the Fake Symposium. It was recorded on September 23, 2022.
- Kate Klonick, St. John's University School of Law
- Nathaniel Persily, Stanford Law School
- Judge Robert D. Sack, United States Court of Appeals for the Second Circuit
- Jessica Silbey, Boston University School of Law
- Katherine Strandburg, NYU School of Law and Engelberg Center on Innovation Law & Policy (moderator)
Announcer 0:02
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. Today's episode is the fake news panel from the fake symposium. It was recorded on September 23 2022.
Katherine Strandburg 0:20
It's great to be here and see everyone and to be moderating this really amazing panel of people that we have to talk about fake news. I'm Kathy Strandberg. I'm here at NYU, at the engelberg center, and also at the Information Law Institute, which is probably why I'm on one moderating this panel. I'm not going to do much by way of introduction, because we have four wonderful presenters who are each going to present for eight ish minutes. And then we'll have a discussion. But I just wanted to mention one thing, which is that one of the things about this panel, and maybe it's true, some of the others, too, is that one of the questions that comes up is fake news. What does that mean? What do you mean by that? And in fact, there are a lot of things that we could mean by it. And so we're probably going to be touching on a number of different things that we could mean by it. I think back when we first started planning this symposium, it was kind of a relatively new. I'm planning this simpler. Anyway, that's, that's all I'm gonna say, by way of introduction, I just want to I'm also not going to go into long introductions of the people on the panel, because they're all well known to pretty much everybody here anyway, and you have their bites, but I am going to tell you the order in which they're going to speak. So we're going to, we're going to start with Judge Sack, who has a long history of expertise on everything, First Amendment, defamation, etc. And he will talk about some things that related to that, then we'll have Jessica syllabi, who's going to talk to us a little bit about facts, what are facts and so on. And then after that, we will have chronic, and then we'll finish off with Nate persily. And they are going to focus more on sort of contemporary fake news typing. So that's what we're doing. And I will just turn it right over to judge,
Judge Robert D. Sack 2:14
I'd like to start. Like, maybe they're in there. I'd like to hold them all in contempt. With permission of Jeanne Palmer is my law clerk, senior status. And it's with her permission, that I am going to actually read what I have to say. And the reason that I really you're going to find out once I start, I'm going to be within a six or seven times, I'm using many quotations. And I'm actually going to, I'm going to put quotation marks around it. So nobody thinks I'm stealing it. And I'm also guarding against possible possibility of a brain fog, real effects. And I'm gonna do it. Now, this is going to seem strange. But I'm going to do it using paper. This is when my law clerks come in, I have a new book, wonderful batch of wonderful moments from NYU. And they're just coming in now. And whenever they come in, I show them chambers which are, which are so beautiful. We have to make sure the Senate never knows. But I showed them. And then I show them I have to bet thirds. And now boots on the walls. And I explained to them, this is a see. And so I pull it out, they open it up and seriously breaking the binary nobody's ever actually read the book. But so I'm going to You will excuse me if I read the term fake news, as I use it. For first principally nowadays to a communication that the speaker either thinks is more or simply wishes were not true appearing on a news medium. It's the speaker. It seems to be an epithet directed at the statement and its author rather than a series attempt to describe indication that the more literal less partisan, you are fake news, I think is to describe any purposely falsely purporting to be factual this information rather than Miss Information. If it is fake news, then it is a lie. Bloomberg columnist les Pham, wrote late in December 2016. Quote, fake news was ramping in 2018. No busloads of paid protesters didn't descend on Texas in November, but more than 350,000 people shared news in quotes that they did. made up stories outperformed the real stuff on Facebook with dozens of dubious websites springing up to meet the demand. Pakistan's defense minister fell for fake news. So the America's next national security adviser No wonder politico back named fake news. Its lie of the year in 2016. was returning with me now to 1964 A New York Times co versus Sullivan. They're the Supreme Court held as everybody irrespective of where they come from, and how they've been trained knows that under the First Amendment, a public official can succeed in the defamation action only if he or she proved by clear and convincing evidence that the statement was published with actual malice. Always put actual malice in quotes whenever using doesn't really mean what it sounds like. Actual mouth actual malice was later Later, fine. I mean, knowledge of falsity or subjective awareness or probable for In other words, later on matory statement with this that's fake news. That depends a person names a person is now actionable, even New York, solid, but
that's earliest February of 2016, which, for these purposes reasonably early, the Washington Post reported that quote, Donald Trump's latest threat against the media came Friday at a rally in Texas. Once elected President Trump promised He will, quote, open up, quote, federal libel laws to make it easier to sue news outlets like the Washington Post, and The New York Times I'm pulling from a candidate, a pronouncement which journalists reacted in, in predictable, har Yatta continued. If he really wants to lower the bar for legitimate libel claims, he does have one recourse through judicial appointments, Trump could theoretically reverse decades of legal precedent that requires a public figure like him to prove actual malice in a libel. Interesting way, and that's not surprising. We've seen none. Trump appointees, promises quest to do. Candidate Trump would say by having New York Times what people were saying. Yes. By having his question by having New York Times versus Solomon, nearly 60 years later simply overrule the sentence from denial of certiorari and Bereshit Berisha, the Lawson in 2021. And again, Coral Ridge ministries versus Southern Poverty Law Center this year, he said, I'm quoting him trying to the proliferation of falsehoods is and always has been a serious matter. Instead of continuing to insulate those remedies like suffering and Solomon and his progeny, we should give them only the protection the First Amendment requires. Protection the First Amendment required. defamatory lies are precisely what solvents actual malice test splinters? Excellent. Question, as Adam Liptak actually questioned a news article about one of the ascension denials. Actually question what is Justice Thomas could have have actually read New York Times. Solid word last word about Solomon. It's best I think, to remember it principally as a civil rights decision, rather definitely decided in 1964 By unanimous court A longtime inside counsel he was for the New York Times it might have bankrupted the times and the Supreme Court not stepped in. Thereafter though, a public official could not win a libel suit without proving the statement. The question was public knowledge of falsity or subjective awareness of probable cause sorry that it was a block. There is plenty and justice Brennan's rather hastily written opinion, one can take issue with likely I've done it myself, which I did in the preface to one additional treatise, and you will ever want to bury anything put it in the preface to a treatment. But the definition of actual malice and warnings I've said came from subsequent Supreme Court case law, not the New York Times against overruling it, Howard, I think would surely be a disaster. Consider this. Sullivan has been the law of the land for nearly 60 years. It's been woven into the defamation law, every state in the US go read a state case, according to a bad state law. According to Lexus, there's some 8000 cases from everywhere in the country that have cited it is at the heart of American law. Imagine what would happen if it suddenly disappeared, my previous employer suddenly disappeared. So I looked at Solomon is as the trellis on which the thick vines of American defamation law have grown for nearly 60 years removed simply removed the trellis and that fear American defamation law. So now
Katherine Strandburg 12:02
I have a new goal for life, which is to try to rise to the level which I probably will never make of Judge Sack with brain fog. That's my new goal in life. And I'm turning now over to the panelists who have to follow him but, Jessica. So Um,
Jessica Silbey 12:17
hi, everybody. I'm Jessica Silbey, I teach at the Boston University School of Law. And I'm going to spend some time telling you a story from a paper I'm writing. That's about early copyright law and how it might shed light on contemporary misinformation questions with regard to what facts are. So. So copyright doctrine says that facts are in the public domain, as most of you probably know, not copyrightable. And IP lawyers, and teachers act as if that's self evident. But nowhere in the 1976 Copyright Act, does it actually say so. So section 102 B, which is where we would expect to see that language that facts are excluded, lists a lot of other things, but not that the legislative history of 102 B also doesn't contain the exclusion of facts, talks about a lot of other things. And the history is over 1000 pages not just for this section, but for the for the act itself spanned decades. And you cannot find a discussion of the fact exclusion there. We feel sure about the non protect ability of facts in copyright law, because the Supreme Court has told us so in the face decision from 1991. But if you reverse engineer this case, and you just have to take my word for it, and the cases on which it realized none of those cases are actually about facts. They're about other forms of public domain material, even though that's what vi says that facts are excluded. So the Supreme Court took cert in Feist to decide a debate a long simmering debate about the sweat of the brow doctrine. And that is that the question is whether labor of authors by itself will protect, protect the work and what fight said is that that's not what copyright is for copyright is not for protecting hard work. copyright protects authorship. So labor no matter how hard, how long, how much it costs, does not matter. What gets you a copyright is originality, whatever that is often described as the intellectual conception of the author. And importantly, facts are not original. So facts don't originate with authorship. They are discovered already in the world. That's what FBI says. Now, I think that's a debatable proposition generally. But let's leave that for a minute because of this panel, fake news. What does spice have to do with that? So Weiss long state answered this debate about sweat of the brow doctrine, and that how hard it is doesn't matter, about protecting ability. And so even if the output is just factual, so and really hard to produce, like maybe a phone book, which is what the case was about, you don't get protection. So there were other issues, other debates at the time about price evaluations for example, billing manuals, Scientific charts, etc. And the argument then, as it is often today in journalism, is it you don't protect the hard work to collect an assemble news, it doesn't get done well. And we're all worse off for it. But how do we pay for it? Most of it is not protected. Now FBI says that public domain and information and facts is too important to keep locked up by copyright. All of these things that Rebecca was talking about. Keeping facts free, by said is not a unforeseen or unfair event. Rather, it's the essence of copyright. And it's a constitutional requirement. Copyright assures authors the rights to their original expression, but encourages others to build freely upon the ideas and information conveyed by the work much to Brian fries, Smith.
So well, copyrights. For copyright lawyers, this just begs the question about what is a fact and what is expression. And this is something that we've been arguing about for a long time, the difference between facts and fiction, facts and fake news. We fight all the time in copyright law about filtering the facts from the expression to identify the scope of the claim, and the strength of the infringement. I'll return again to what facts are in a moment. But what's it turns out? It's a harder question to answer. But I think that copyright history can help. So for journalism, what back what place means is that you can't copy the article exactly. You can't cut and paste the article. But you can use the article to the facts that contains and you can link to the headline instead of writing the article, all of which in theory avoids the hard work of collecting and checking those facts. And that of course, may be part of the problem. But that's not how copyright always was. Paradoxically, copyright law used to be even more generous with expression at a time when journalism encouraged even more copied to the origin of copyrights. Fact exclusion that I'm learning started in the mid 1880s, when the news industry experienced profound changes. It started with many diverse local papers like these which regularly copied verbatim from each other full articles, copy, cutting and paste as a professional courtesy, sharing the labor of the news of these local newsrooms and sending the articles to each other. It was called cabbages in the news industry, a practice on which the industry realized small papers actually fed each other the news pull articles. And then in the 1880s, the industry went from lots of small papers to consolidated news organizations and national news services with the rise of AP Western Union. Right. So this happened in part for a lot of reasons well, familiar aging, communication technology.
Five, the rise of telegraph, improvements of printing, ease railroad transportation, shrinking political subsidies, or newspapers is a huge ship. And what that meant is lead time advantages for stories shrank as distances and time became reversible with more ease. More new stories can be copied more quickly, across greater distances without adhering to the professional courtesies of reciprocity, and delay. And so as competition among newspapers increased, newspapers became more dependent on sales and advertising. Companies and larger associations emerged dominating the market, like the AAP, and the International News Service, who are accused of anti competitive practices and put more pressure on local papers. And from these changes, there were calls for copyright to protect the news in ATA before the publication of current they wanted to protect news and the publication of current events from expropriation. Intriguingly, local newspapers weren't asking for these changes. They didn't want copyrights because they depended on copy. It was these new organizations, these new conglomerates, they were asking for stronger copyrights prevent competition in the new services. And this is how we eventually got ins vs. AP and the hot news doctrine from 1980. But before that, in 1884, AP hired a lobbyist named Henry Waterson to go to DC to the passage of this bill is called the news copyright bill and it would grant short term protection the articles published in newspapers and never got out of committee, but debates about it are relevant for today. These debates concern the lack of creativity and skill in the new news gathering in journalism was not considered the product of skilled labor. Nevermind intellectual conception of an author news was unlike original copyrighted subject matter with with maps and charts, for example, which was described as requiring led the expedition, special tools and expertise, news people were described as hats. In other words, and in an 1884 article in the nation, the news copyright Bill was critiqued in this way. It's absurd to talk of a man who picks up a piece of news or an item as an author at all, the reason why copyright laws are passed is to secure the fruits of original intellectual labor. That the proposed copyright a noose does not do this, anyone can collect news and have any original intellectual effort with very little effort of any kind. Some people do it by listening to keyholes. What was being debated here is whether journalism is a skilled profession or not, and when not, not not being debated is whether it was factual. Hiding in this history of changing technology and competition among news is a story of professional standards to certify quality work. And so what happened at this time is the rhetoric changed, reaching 80 to 1920. So that what newspapers published is the product of skilled work a fact checkers, structured labor of newsroom hierarchy became an essential mechanism for mentorship and cultivating talent, deserving of protection, but not full blown copyright protection. So the legal compromise became wholesale copying was not going to be allowed, but free riding on the accumulation of sorting effects would be in this history ended with fights. But then the question is what kept news quality standards up in the 20th century if copying was allowed like this? The answer is the professional practices that were also being developed at this time. So this is at this time when the rhetoric was changing, you started getting professional schools. 1908 was the first journalism school in Missouri. You also had the development of unions newspaper unions, like the American Society for news editors was founded in 1922, their first task to develop a code of ethics for journalists to produce quality news. So what does this mean for fake news today? I think it means at least three things. One, copyright is not the answer to our problem of quality journalism, more protection, less protection, it's not going to get us more truth or untruth. The second question, I think the second issue is what is a fact. And the social production of badness is a historical, social and institutional phenomenon that depends on the professionalization of people producing and disseminating those facts. This is something that Siva mentioned yesterday. So saying, You're a news organization, and then circulating falsehoods, for example, and not correcting or retracting those, it just makes you not a news organization, according to professional standards. And that may not have been true in 1880. So this is a famous graphic about the news industry in the 1880s. And as depicted here, when the status of what is news was debatable, to look at the corner there was what it says at the question was then not what is a fact? The question was, what is news and it was answered by who makes the news and how it's made. So the third thing, the last thing we learned, I think, from this history, is that you have to broaden beyond news as a professional organization in between 1880s and 1930s. debates were swirling about other kinds of knowledge production. So this is the birth of Social Sciences and Social Studies, and a resistance to Universalist philosophy of the 19th century comes pragmatism, legal realism, sociology, political science, anthropology, Economics, Psychology, they were all developing within universities and other intellectual circles at this time. So the debate about quality news occurred at the same time as other disciplines were being we're being generated. You're debating and contesting knowledge production, at the same time. So from this law, you think about law, we get New Deal legislation based on expertise, administrative law, democratic defaults and institutional. So I think what we learn if we reflect on the current period of sort of a crisis of truth, for example, is a function of institutional authority and professionalization knowledge produced in science, through history, in journalism, or in the law needs to be produced through transparent, understandable and acceptable processes. So before we debate, what's a fact, what's not a fact for copyright purposes or otherwise? The idea is that the institution and professional community that produces it must command deference, it must be legitimate. And so the authentication of truth or facts, or whatever we want to call the pursuit of knowledge is a social process that's sustained by resilient institutions. And we really are not where those institutions today are not resolved. I think part of what we're experiencing today is the contestability of facts on this feels like an existential crisis because these institutions on which we rely, to manage the contestation of facts be at science, law, universities, news, they are being rendered illegitimate in the current political climate. And that's, I think, one explanation
Katherine Strandburg 24:33
of the next step is Kate.
Kate Klonick 24:39
Okay, so I am this has been wonderful. And actually I love Jessica's kind of survey of the history of news because this leads really perfectly in tune. We didn't even coordinate this fully beforehand, just for the record. But I want to talk about basically the recent history of fake news. Who's missing disinformation, not kind of everything that Jessica just talked about that was really focused on the idea that of like yellow journalism and all of these things that have happened for centuries. But and that a lot of us brought up in the last five years as a lot of this was happening. But I want to talk about really, what's happened since. Since we went from that little low point to the I think the term was hockey stick that was used before to the hockey stick point in January 2017. So the graph behind me is from Google Trends, and it shows just how much how much the term fake news has been used, or Googled since 2004, in the United States. And so you'll notice that that spike, that spike is, as I said, before, between October 2016, and January 2017. And I think we all know what happened there to be slightly more anecdotal. In that time period, in the time period between October 2016 and 2017, I happened to be part of a number of kind of very quickly formed conversations that were happening inside academia and between policymakers to address the impact of fake news on democracy and our elections, something that Nate is going to address much more in a second. But one of the more memorable of these conversations was a small confidential roundtable at a very elite law school of about 15 academics and General Counsel of five major newspapers and news organizations. And that was in December 2016. And you might ask what the General Counsel at the newspapers were doing, at a conversation about fake news that might actually seem kind of quaint right now. But actually, the belief was that the answer to fake news, at least in December of 2016, was that it was going to be the answer to fake news was going to be to boost Real News and the journalism industry, which of course, was part of this, but this was truly like what the focus was fake news, the answer to fake news, this cute little term that encompassed so much was real news.
So as we all know, this has become less of a focus in the intervening years, the focus shifted to social media companies and the role they play mostly in fake news dissemination, which I think is mostly correct. In that time, there have become many more taxonomies for fake news, if you're interested, Claire Wardle was, as I'm sure it has been mentioned many times, has like the definitive kind of taxonomy about myths and disinformation and everything else, this helped to kind of break down the problems that we're dealing with give us more kind of targeted solutions about what we could do around this. But nevertheless, during this period of time, I will say that there was a little bit of a maybe continues to be a little bit of a moral panic around fake news, a little bit of a feeling that there was all of this was going to destroy democracy, that all of these things, whether we'd seen them before or not, we're going to basically, that we're going to basically, bring down elections, bring down the nature of truth, bring down facts bring down the rule of law. I'm here to basically argue that even if that was a moral panic, it had purpose. And this graph is kind of showing you why the moral even if there was a moral panic over fake news, even if we don't have solutions for right now, I think that phenomenologically, what has happened is that there has been a massive education about epistemology, that has essentially happened in the general population because of the conversation around fake news. And this is basically coming down to the idea that because we now have the term fake news, because it is talked about even because it is manipulated by politicians, and by certain and certain members of of, you know, public figures and things like that, that the idea that everything you see, everything that you experience on the internet, but just generally, is not necessarily indicative of reality and needs to be plumbed, and looked up and questioned and analyzed is actually of great use to society. And so my kind of intervention here is that whether or not I think that around the edges, we have found some really wonderful. I think that we have found some really wonderful interventions about slowing down fake news. We have learned so much from psychology and cognitive science, but how we process information and then utilize those and slowing down the friction of how we spread things, and how we label things and how that changes our entire approach to consuming information. But I am basically saying that the biggest intervention was one that was not targeted at all It was really actually, the, the idea that people had this huge public service announcement, essentially, around around this issue, and that the problem has, in many ways self resolved, or is on its way to self resolving, in part because you are having an education process of the public about questioning the nature and the rapidity of their sources in truth. And so that is my slightly optimistic take. But it is also a little bit of a controversial take, because I think that it is, I think that there is still a little bit of a moral panic around a lot of this. And I don't think that it's wrong, necessarily. I agree with all of the panelists like you're today. And I think that there's lots of these issues. But I do think that it's probably less than an issue, then we, that we, it's less of a new issue than we've seen before, for all of the reasons that Jessica illuminated. And I think that we are on our way to solving it, actually, without necessarily legal interventions that are very highly questionable, especially in light of First Amendment constraints in the United States. And I am really, that's it. So this is a very short talk. But this is basically the provocation and setting up date for even more publication. All right,
Nathaniel Persily 31:22
so now let me provoke. So let's title this talk about why a lie detector on the internet is not.
Katherine Strandburg 31:35
So,
Nathaniel Persily 31:37
but but I'm gonna start in a very different place than where Kate ended, which is, I think disinformation is a huge problem. I think that the widespread beliefs and false claims is destabilizing for democracies. I think that whether it's false beliefs regarding COVID, climate change, election fraud and administration, they are rampid deeply held in the United States by over 30% of the population, depending on which lie we're talking about. And they are of concern. But the problem is too bit too big to diffuse too ingrained in contemporary politics for many of the interventions that we've tried to implement to address them. And in part, this goes a little bit back to Jessica's point about the the reason we cannot address it is because there is a loss of authority and credibility in institutions at the same time. And so it's almost impossible to deal with the disinformation problem unless you have a trusted referee for information. And unfortunately, we have outsourced that power to internet platforms, whose incentives and capacities are not well aligned to deal with this problem. And I think most of them would, would prefer to have other institutions deal with it. So let me in my, in my seven minutes give you 10 myths. The first is, well, how big is this problem? And how would we know? Because there are billions of pieces of disinformation, out there at any given time. But in some ways, that's not the right question to ask, because the question is, how much of our information diet, whether it's the average person or the tails, and the distribution is fake, or false. And I think one of the challenges here is that
for most people, especially if you talk about their their digital news consumption, actually news is a very small share of it, right. And we tend to think that everybody's Facebook newsfeed is like the people in this room. And actually, it's probably by the most liberal definition of what you might call news, it's probably 3% or so of their feed. Okay, and it's actually been decreasing over the last few years. Now, that's not there are tails in the distribution. And one, one takeaway I want you to take away from this doc, is that the tails are really what matters, that the concentration of these beliefs on the on the tails of the distribution is where we, the internet companies, and those who are talking about this problem, the need to focus, mostly what's happened. Now, if you look at people's online consumption of information, right, if you look at for example, the way Facebook has changed, its newsfeed is to move toward friends and family content, right and away from a lot of the things that would be termed fake news. But secondly, and this I think, is really important from the standpoint of regulation as well as thinking about it from the sort of libel standpoint, which is that while we are awash in lies, 90% of lies are harmless, right? So that if you were to try to, as I say to bring a lie detector to the internet, most of what you are sussing out or preventing is irrelevant and not something that we care about. And so that we need to refocus our thinking about the problem of fake news toward the problem of harm in general, right? Because most is even on the news side, most, most false claims are not the kinds of things that we need to worry about. And so therefore, the fake in some ways, this is sort of very academic discussion, that that we are having as a country, which is like, Oh, if only we could figure out the line between truth and falsity, which is kind of testable, and we can, you know, prove things, then we would solve this problem. But actually, as I'll say in a second, it's not really that that line is almost irrelevant to the question of the harm that the particular news item is causing. So third, most disinformation is actually not false. All right, that seems like a very hard thing. It seems a counterintuitive thing to say, because true statements can promote disinformation. And so consider three statements based on on the lies that I was talking about the beginning. The COVID vaccine can cause death, scientists disagree as to whether climate change is manmade, the 2020 election was marred by fraud. Okay, each one of these things you can say they're not false statements. All right, they're exaggerations. Maybe, right. They're emphasizing certain things. Even if you go back go back in sort of the one of the area's that's been studied the most look at claims about President Obama's citizenship. I've often when I've talked to news organizations talked about Well, here are three potential claims. President Obama was not born in the US. Second, President Obama, Donald Trump says President Obama was not born in the US. Third, liberal pundits disagree with Trump claim that President Obama was not born in the US, one of those statements is false, the next two are true, they all have the exact same impact on the listener in terms of generating the false belief. So if you have a regime that is there to try to regulate the line and police the line between truth and falsity, you're actually not getting at the problem that you want to solve. Fourth, the status of a new story as disinformation is actually very difficult to discover when it matters. Because virality is the kind of coin of the realm now in the modern political communication ecosystem. The you know, the only time it makes a difference really, for us to police, the line between truth and falsehood is in that first 24 to 48 hours when a claim is made. And that is the most difficult time to verify things as true or false. And let me just reference a set of papers that I'm doing with at with the Social Media Lab here at NYU run by Josh Tucker at which is really the best in the country. You got to get more into law school, I want them they should be hanging out more with law professors. But we gave 90 average people and six professional fact checkers,
news stories, fresh new stories every day one from a liberal site, one from a conservative site, one from like, a trashy fake news site to see how good they would be in sussing out whether the claims were true or false. And people are really bad at that. Okay, in that it when it matters, right. So it's so most of the studies here are looking at things like, you know, it was the moon landing fake, right, or some of these these historic claims. But we found that and then what's even worse is that when you tell them how to search, to do research, they find confirming evidence for the false claims. All right. And so if we are going to think about, again, a regime in which we are going to try to deal with the problem of fake news, you have to deal with it when it matters, and that's particularly difficult, because also as we saw, whether it's a Hunter Biden laptop story, the Chinese lab theory on fake news on COVID, right, that disinformation, especially or misinformation or stuff, that's unconfirmed it at the front end can sometimes end up being true, right. And this this plagues the platforms as they tried to do enforcement here, six satire and news coverage, it is extremely difficult to distinct much of the false beliefs can be generated by satirical descriptions and snarky coverage of people statements. And what we see is that news coverage of false claims is what often will amplify them. So if you take like the pizza gate, or even Q Anon, right Q anon was actually not a thing significantly until the New York Times started covering it. All right, and and if you look at Pizza gateway, it was very, very sort of unfamiliar, obviously, that was a violent incident. So they had to cover it, but that ended up really propagating The false claims the story of Q anon. And it's, and we're not going to live in a world where we think the coverage of false claims should be regulated. Seven. Even if you try to control the supply of disinformation, the demand still exists. And most, here's where the research is on the sort of supply and demand of fake news, which is that most of it is sought out by people, right? So we all have the kind of stereotype of that uncle of ours who's on Facebook, who's just, you know, looking at something and I'm, boom, they're seeing, you know, that that bleach is going to solve COVID. Right. And, but that's actually not really where most people are arriving at fake news, when you look at Brendon Nyan has a great study of YouTube, looking at where people are getting the problematic going to the problematic sites, instead, they're either subscribing to or they're searching out for. And so if if people are actually looking for and trying to satisfy that need for fake news, by trying to find it on the internet, there's very little you can do in terms of policing, the truth false line, in order to address it. Last few points. Controlling disinformation cannot be done in a politically neutral way. And that is what makes it almost impossible for these platforms to both on the one hand, say that, hey, look, we're not taking sides in the political debate for Democrats and Republicans. But if one side lies more than the other, then then their ambitions to be both neutral, but then also to police. The political debate for political for disinformation is almost impossible. And then finally, and this this is, I think, a little bit in tension with with what Kate said, we are getting better at figuring out what's false on the internet, people have because of the moral panic become a little more skeptical of false claims that they encounter online. But they are now also more distrusting of true things that they see online. And that's, that's the collateral damage of the fake news panic, which is that, yes, we might be better able to figure out when people are lying to us, but we're becoming less able to figure out when they're saying something that's true.
Katherine Strandburg 42:29
Okay, that was really wonderful and very thought provoking. So I want people to start thinking of your questions. And in the meanwhile, I want to give the panelists, anybody who would like a chance to respond or think about comment on what the other panelists said. And so I will let you do that in a volunteer way. If anyone who would like to do it just dive right in. No, nobody wants to nobody. Okay, so let's go to the let's go to, let's go to the to the audience and some of whom I can't see because I'm behind the screen.
Amy Adler 43:05
Any. Thinking about the tension between Kate, Nate, and wondering if you could address I think a lot of news lately has focused on the Facebook algorithm and that shift in the Facebook algorithm as a huge problem, not necessarily in generating fake news. But in I guess, the way I'd put it is if we could, if we could correct algorithms, how much would it help this problem?
Kate Klonick 43:38
Yeah, I think that that's a great question. I also, I am being provocative like with this, I want to like really just reiterate, since I'm on the record, we recorded that it's not that I don't agree with everything that needs said about the problem of disinformation and misinformation. It's just speaking to the very, very broad brush of fake news and kind of everything that's happened coming out of that, that I was mostly addressing. But to your question about the algorithm, I do think that they there is a significant amount of things that we do not know about the down ranking and the kind of invisible content moderation that happens through the algorithm. And we're starting to have more visibility into this. But mostly, this has to be reverse engineered for by researchers through scraping and other types of things. And one of the things and Nate can speak to this more because I think we are in complete agreement about this. One of the things that absolutely needs to happen is it's not as if and I really want emphasis emphasize this. It is not as if in this algorithm. It is truly an algorithm and it's just like a math equation, right that balances these things and ways these variables differently. The outcomes are or our people are like the engineers that build them are able to see and measure these they have Facts in broad strokes. But that does not mean that they necessarily know the individuals that they're targeting or can measure those types of ideas are necessarily cross referencing those trends that they're seeing that they're creating with the algorithms with certain vulnerable populations in the way that a social science researcher could bring that kind of bearing to these problems. And so I think that this is one of the areas that we just need a ton more empirical work on me.
Katherine Strandburg 45:32
So I think you're I just
Kate Klonick 45:40
really quickly want to say that that demand problem really highlights this problem in this business model that like that yellow journalism or any like has existed forever, and continues to exist. I mean, it's one of the things about surveillance capitalism, Shoshana, Zubov offs, you know, incredibly foundational book. But one of the things that I think is really interesting about this blame that social media is driving outrage in order to drive clicks in order to drive ads is like, well, that's also what newspapers have been doing for like, all of time in history. I mean, it is literally the you supply the photos all supply the war, kind of Pulitzer, and Hearst, like battles. And so I mean, so this is, and it's all in all of it is actually, if you continue to plumb that like all of that is because of consumer demand, people want sensationalism and want to read those things. And so anyways, this is just kind of stopping at those initial levels and not going to the levels of demand that Nate was talking about, I think is a mistake.
Katherine Strandburg 46:41
I actually wanted to kind of connect as I'm listening to you, I'm connecting this up to what Jessica was saying, because part of the whole demand issue is also an issue of institutional institutional breakdown, or, you know, it used maybe I don't know if it used to be, but hypothetically, it used to be that you could read the National Enquirer and you Yeah, you knew that's National Enquirer. And it was fun and all that, then you could watch the six o'clock news. And you knew that that was like the real news. And people trusted that more. So it seems to me like there's this connection between this tracing things to demand and this breakdown of what are the institutions that kind of helped determine what the facts are?
Kate Klonick 47:26
Yeah, to go back to that December 2016 meeting that I kind of teased about before, like maybe the answer to fake news is actually real news. Like it's all comes, you know, it like that that initial impulse was maybe Correct. Actually, I think that's an important.
Nathaniel Persily 47:44
What does social media do? You're talking about? And so that if you walk up to the the checkout line in a supermarket, and you see Hillary Clinton involved in secret pedophilia scandal, right, you say, Well, I know what's, what news is there. But when you're receiving it in your newsfeed, right, all of the cues that we have in the real world for veracity and progeny right are ripped away, so that then you're, you're viewing something, and it's, it's, you know, right next to New York Times story or something like that. And so that's, that's been one of the real challenges. That's why some of the, you know, the labeling research has been sort of pushing in that direction to try to, you know, clarify things, but as you may know, that the early labeling research was like, you know, this is fake, you put you put a big red flag on it, then people are like, Oh, it's fake. Let me read any right, you know, and so you have these these different risks of backfire? I think we've solved that problem. But that was that was one of the first things. Problem. So
Jessica Silbey 48:47
when you if you label something fake, whether it's an institution that can test facts and help you sort to from from falsity, and then that institution that was supposed to help you decide, what's the National Enquirer versus what is the New York Times whatever, is actually starting to render legitimate by the social media ecosystem, you just lose the structure through which to understand how to analyze what you're seeing, it is a matter of cues and labeled, that's also those those cues and labels sometimes undermine the very institutions that are.
Katherine Strandburg 49:30
Already don't know your name.
Unknown Speaker 49:30
No, it's fine. Thank you. I have a question regarding the demand argument. So I feel like it could probably rub down to the question, what came first the chicken or the egg? So maybe, if people were given alternatives, better alternatives, better information, maybe the demand wouldn't be like that. So perhaps someone wanted to stay like I'm not somewhat not like a specific person, but maybe it would if the algorithm was different than if the it was filtered more and properly. Maybe then it would all change. But I feel like that will not happen. Because it's much easier to keep the mass, this enormous amount of people just consuming fake news over and over again, and not really having any time to filter and think about it.
Nathaniel Persily 50:18
Except that most people are consuming true news, you know, most of the time. And and so we, you know, it is a big problem. But it is a problem for a particular subsection of the population. I mean, I do worry a little bit about the discussion of this in the elite circles about oh, these people cannot figure out truth from falsity. And because I know there is more news of more true news is available at your fingertips now than at any point in human history. And so if you want it, you can certainly find it. And most of the time, it's even being fed to you by the algorithms, and so, like there, so then then part of the question is, are people who are not on Facebook? Do they have more for as an example, Facebook or other platforms like that? Do they have more or less sort of tendency to believe false stuff, then? Then people who run it's not the case, right? If anything, you sometimes find it the opposite, because older people end up being more likely to, you know, tune in to Fox News and some other legacy media institutions. So that if you if you survey on on questions of truth and falsity, it's pretty similar. Now, but let me say just one pitch, since I've written a piece of legislation that that standing in the Senate right now called the platform Accountability and Transparency Act, which is that I want, I'm willing to be proven wrong on this. This is like I want I we need to get access to data that the platform's have. We that, you know, all of these assumptions that we're making are based on a lot of external tests, as well as what they say. I've been trying for seven years since I moved to Stanford to try to get data out of Facebook to work with in the social science community. There's a program we did with Harvard called Social Science one. And so I think that the jury is still out on a lot of these questions. But I think that the sort of burden of proof has shifted a bit that we need, we need more data and more access. kind of
Katherine Strandburg 52:16
run it, we're kind of running a little bit low on time. But I actually did want to I know Jessica has something that I also actually wanted to say something too, which was that, as I was also listening, one of the things that I was thinking about was kind of circling this back to judge Sachs remarks at the beginning, because one of the biggest concerns of stifling news is to make it too easy to demonstrate that something is defamatory, or libel. And that's why we need that actual malice standard. And so maybe we kind of I'm interested to see whether you agree with this, my interpretation of what you're saying what you were saying, but we need to be kind of worried about that trying to develop an algorithm or some method or something of doing this, basically, because we go right back to the problems that we hope have been dealt with by solving the solving case. I don't know if you agree with that, or
disagree completely.
Judge Robert D. Sack 53:18
No, no, no, no, no. Easy understanding. I find this utterly fascinating one, there are wonderful things about being old. And one of the wonderful things about being old is I don't understand this and not know, I might, I had an I had a very interesting habit, I can't book about it, except to say what it was had a variant. Last week, the question was about the ability of the city to fire one of the employees because of what they said. But they said it on a Facebook private, a private group. And I was quite fascinated. And I started out the arguments before you start on explain to you I was on Facebook for about four days, my wife and I got so tired of finding out what my relatives thought for thought of being gluten free. That I got off, and I've never gotten back. And therefore, if you don't mind, would you? I've read through all your stuff. You assume that I know what a Facebook, whatever it is pages. I have no idea. So maybe the presider will give you an extra three or four minutes to explain the facts. So I'm delighted to explain why donors. I do have a question though. You had this. You had these three things you have to remind me what they were. One was the original Fake News. Second was the rote repetition we level Oh, yeah, that
Katherine Strandburg 55:11
was which was possible.
Judge Robert D. Sack 55:13
Yeah. Well I was gonna say is that is seems to mean actually the difference isn't that it's the mindset and you one is entitled to think hold responsible in a different way the person obviously makes it up and the person says that person just made it up. Same also they wanted to bake and it's not. And lastly in order to really give people some information that's in the egg
Announcer 55:59
The Engelberg Center Live! podcast is a production of the Engelberg Center on Innovation Law and Policy at NYU Law is released under a Creative Commons Attribution 4.0 International license. Our theme music is by Jessica Batke and is licensed under a Creative Commons Attribution 4.0 International license