Counter-lies: Disinformation and the Marketplace of Ideas

Abstract

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truth-finding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity.

However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by accuracy. False facts and those who spread them are not easily corrected. And some participants, through the dissemination of knowingly false information, seek to frustrate not just the process by which others seek to justify their beliefs, but also their faith that belief justification is even possible.

This Article offers a novel but needed corrective to First Amendment theory by taking a social epistemology approach to considering actors’ motivations in the knowledge production system. In so doing, it introduces and theorizes the concept of counter-lies: disinformation concerning verifiable facts that is shared with the intent to deceive one into believing their mistaken beliefs are true. Despite counterspeech theory, counter-lies do not contribute to the search for truth, nor are they amenable to correction through collision with other ideas. The result of this disconnect is the overvaluation of knowing lies.

Like Mill, its progenitor, the marketplace theory of the First Amendment has failed to take seriously the epistemic duties that an effective truth-seeking process requires, and what happens when those duties are breached. The question is what role knowing and demonstrably false statements should play in a First Amendment theory that keeps those issues properly in view.

Keywords: First Amendment, Constitutional Law, Disinformation Studies