First Amendment mandates that “Congress shall make no law … abridging the freedom of speech …” Courts have over the years construed the clause in a way that privileges political speech in its various manifestations while ruling to limit the protections afforded to commercial speech. Hence – however limitedly – different regulatory frameworks have emerged to control commercial speech in a variety of arenas. So for example, FDA through its Division of Drug Marketing, Advertising, and Communications sets standards for all drug advertisements. For example, it mandates that “all drug advertisements contain (among other things) information in brief summary relating to side effects, contraindications, and effectiveness.” Similarly any company listed publicly has to comply with a host of disclosure laws about its finances and business practices that dramatically restrict the kind of claims companies can make – at least about their accounts. The principle behind these mandates is the understanding that public good (in case of stock market – investor good) is served when we limit or penalize disinformation. The further pretext for such laws is that such laws are necessary where supply of information is essentially a monopoly of organizations or people with explicit incentives to lie or strategically misrepresent information.
Arguments for setting epistemic standards for speech in the political arena have been criticized in America on a variety of grounds including that such a law will be unduly restrictive and hard to implement, that free speech is necessary for democracy, free speech is a “fundamental” “human right” (absent of its necessity or utility) – it is part of Article 19 of UN Declaration of Human Rights, and free speech promotes search for truth, etc. More broadly, there are two major defenses for freedom of speech – a deontological conception of the sanctity of freedom of speech (expression – more broadly), and an instrumental defense of its merits – its necessity for preserving democratic values and ideals etc. It is hard to contest either of the claims: the claim for normative supremacy is hard to make in face of axiomatic judgments about the “fundamental” nature of these “rights”, and instrumental supremacy is hard to argue given “democratic values and ideals” are so loosely defined that they can be spun every which way, and an incommensurable value attached to any of those parts. But let’s hold this chain of thought for now.
Black’s Law Dictionary, 5th ed., by Henry Campbell Black, West Publishing Co., St. Paul, Minnesota, 1979, defines fraud as, “All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated.”
It is an unsurprisingly vague definition cognizant of the artfulness of the subtlety with which fraud is perpetrated. The law relies on the skill of the prosecutor, and in company’s case – the defense attorney, and the perspicacity of the judge (or) jury to come up with a judgment as to whether fraud was perpetrated. One can come up with a more restrictive definition of the “law” but it would most likely be counterproductive for it would channel effort in perpetrating “fraud” that is still technically legal – much like compliance with tax law through using tax havens – and by taking away discretion from the judges, make it impossible to award judgments against patent cases of fraud. In the political arena, people are justifiably skeptical of arriving at limiting definitions, and at submitting speech to be analyzed by a body with fairly large discretionary limits on interpretation of the “letter of the law”. More nefarious motives undoubtedly exist for such protestations – least of them perhaps include worries that such a law would jeopardize their chances at electoral success. Then there is empirical evidence to suggest that politicians are very skillful at being honest without ever telling the truth. A stylistic narrow minded honesty that includes choice picking of their own life and opposition’s words is currently in vogue, and very hard to guard against. Not to mention the perverse ability to bludgeon the voter with the inconsequential, or ability to strategically shift focus on issues. For example – the 2000 campaign was essentially fought on the grounds of “whom would one like to have beer with?”, or the “Willie Horton” ad used in 1988 election featuring real life person and story – though of limited evidential value – to skillfully convey race and crime cues to the disadvantage of the Democratic challenger, Michael Dukakis.
Quiet apart from the justifications for “freedom of speech” is the claim that we should let the market dictate roughly the proportion of what is heard at what volume, and what isn’t. The supposition is that market will somehow tune up the volume of the speech in proportion to its appeal to people – with no claims made about its epistemic worth. The ancillary argument is that “marketplace of ideas” will sift through ideas in a way that the “best” ideas and opinions rise to the top, and additionally even if someone buys more airtime it doesn’t quiet matter for the public decides whether the idea is in its interest and hence dictates its adoption (popularity). Understandably it is a hopelessly unsupported proposition lacking any merit whatsoever.
The argument that competition alone would be enough to bring the “product” with the “best utility” (economic utility) to come to the top is doubtful at best, and predicated on a host of bizarre wholly empirically unsupported assumptions. The argument is particularly inapplicable to the domain of “public goods” where people have limited incentives to gather enough information, and in systems where information distribution is asymmetric. Anthony Downs expressed worries about “asymmetric information” in his 1957 opus, An Economic Theory of Democracy. There is indeed a steadily increasing penalty for disinformation and the resulting sub-optimal decisions, but given the low efficacy that people feel (among other things), their interest and motivation remains in making themselves more informed low. Given such conditions, we need – more strongly than a regulatory framework governing information dispersal in private economic choices – a similar mechanism so as to mitigate some of the most severe problems.
One of the ways – and one that would be appealing to all political parties and free speech advocates – through which we can mitigate some of the problems in the current information regime would be to mandate release of government information. Transparency has been found to increase attendance of teachers in rural schools, and distribution of funds to people in rural employment scheme in India, attendance of legislators in Uganda etc. FOIA works to a great degree in US and it is arguable that the gravest trespasses occur where the reach of the statute is the most limited – “national defense”. Transparency is effective because it creates opportunities for accountability. It however also foments strategic compliance. For example, as I mentioned earlier – we now have fairly truthful ads that systematically misrepresent issues and positions of opposition. Graver still is the issue that transparency only works to a limited degree in a country where people are apathetic, and media absconding. For example, while America has inarguably the largest trove of publicly available data including statistics on economics, labor etc. – they are hardly ever part of the public discourse. The corrective solution flows directly from the way I describe the problem –creating an aware media that works to highlight these facts and put issues and positions in context.
Let me take a moment to argue that given mass media is currently the dominant way through which people get information, any proposal for instituting epistemic controls has to cover media. Similarly, any proposal for epistemic controls has to not only ensure epistemic superiority of the resulting commentary, but also regulate how it is presented so as to be useful to the masses. In other words, the framework has to take into account the state of the masses, and how they process information. Given the psycho-cognitive research by Kahneman and others, we know that people regularly ignore base rate information in favor of illustrative anecdotes – the way news is traditionally offered. We also know enough through the priming literature that repeatedly bringing up an issue –regardless of context – increases its salience in decision making.
Given the difficulty in mounting such controls, perhaps the best epistemic intervention that we can provide is an educative one. There is ample evidence that if we improve people’s understanding of what constitutes valid and pertinent evidence, and even help inculcate simple skills like numeric literary – we can have a tangible impact on the way people make decisions and how they respond to appeals.