New Yorker’s Famed Fact Checking Crew Apparently Unaware Of The 1st Amendment?


from the it’s-literally-the-1st-amendment dept

The New Yorker magazine is famous for its fact checking effort. Indeed, the New Yorker itself has written multiple pieces about how ridiculously far its fact checking team will go. And when people want to present the quintessential example of how “fact checking” should work, they often point to The New Yorker. Of course, I don’t doubt that the magazine does more of a form of fact checking than most any other publication out there, but that doesn’t mean they’re necessarily that good at it. Remember, it once published an article that heavily implied that a game I helped create to better understand the role of technology in elections, was actually created by a billionaire nonsense peddler to relive the glory of influencing elections.

Anyway, recently, the New Yorker had a provcatively titled article, How Congress Can Prevent Elon Musk from Turning Twitter Back into an Unfettered Disinformation Machine, by John Cassidy. I clicked with interest, because while I don’t want Twitter to turn into an “unfettered disinformation machine,” I even more strongly don’t want Congress determining what speech is allowed on any website — and I’m pretty sure that the 1st Amendment means that Congress can’t prevent Musk from turning Twitter back into an unfettered disinformation machine. If he wants to, he absolutely can. And there’s nothing Congress can or should do about it, because if it can, then it can also do that for any other media organization, and we have the 1st Amendment to stop that.

Bizarrely, Cassidy’s article doesn’t even mention the 1st Amendment. Instead, it points to the (already extremely problematic) Digital Services Act in the EU, which is taking a very paternalistic approach to content moderation and internet website regulation. It is a sweepingly different approach, enabling governments to demand the removal of content.

Regulating content in a manner consistent with protecting free speech may be a trickier proposition, but the E.U. has just provided a road map for how it could be done: by putting the onus on social-media companies to monitor and remove harmful content, and hit them with big fines if they don’t. The Digital Services Act is “nothing short of a paradigm shift in tech regulation,” Ben Scott, the executive director of the advocacy group Reset, told the Associated Press. “It’s the first major attempt to set rules and standards for algorithmic systems in digital media markets.”

Musk would surely object to the U.S. adopting a regulatory system like the one that the Europeans are drawing up, but that’s too bad. The health of the Internet—and, most important, democracy—is too significant to leave to one man, no matter how rich he is.

It’s not that it’s a “trickier proposition,” it’s that the 1st Amendment literally would not allow a law like the DSA to exist here (or, at least, not for long until a court tossed it out as unconstitutional). Reno v. ACLU exists. You’d think that the New Yorker’s fact checkers might have come across it. Or at least, the 1st Amendment.

I get that people are worried about what Musk might do with Twitter. I get that people are frustrated about what they perceive as the rampant flow of mis- and disinformation (even though I’m pretty sure most misunderstand it and how such misinformation actually flows.) But this weird rush to simply throw out the 1st Amendment (or, in this case, to ignore it) is especially bizarre coming from a media organization that heavily relies on the 1st Amendment to do what it does.

There’s this unfortunate belief among too many people that if something is “bad” it must be “regulated.” But when it comes to speech there are really important reasons why it can’t be regulated — in part because any attempt to regulate it will be widely abused by the powerful against the powerless. We know this because it has happened basically over and over again throughout history.

We’d get much further in this world by recognizing that there are other approaches to dealing with bad stuff in the world — especially bad speech — than demanding that the government step in and make it illegal. Because when you do that, you create massive problems that you can’t just fact check away, no matter how good your fact checking department is.

Filed Under: 1st amendment, content moderation, content regulation, digital services act, dsa, elon musk, free speech, john cassidy, new yorker


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