What is “fake news?”

Outside of the context in which it has suddenly and recently become popular, the phrase “fake news” really shouldn’t be such a contentious thing. It’s all over the place, after all. Republicans, Democrats, and Independents all claim to distrust the mainstream media on the whole. But the fact that everyone knows it, and that it’s been around for a while, is precisely the differentiating point which makes how it is being presently used so creepy. The precise phrasing of “fake news”—rather than “false story,” or “lies,” or any number of other synonymous phrases—indicates a consensus-seeking movement trying to rally support for something, rather than to merely describe.

Nietzsche believed that all cowardice disguises itself as morality. George Orwell identified that tendency in the realm of political writing in his 1946 essay on the subject:

In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.

The hashtagification of language in the age of Twitter means that superficially simple phrases often come with an extraordinary amount of baggage. Nearly anything can be turned into a dog-whistle. “Black Lives Matter” is far more than a mere affirmation of the humanity of some 14% of the American population. The desire to make America great again is not nearly as vague and generic as it would appear to someone ignorant of the most recent election cycle. Who is using what phrase, as a war banner in what movement, and in coordinated time with what other circumstances towards what apparent end, all of these add layers of meaning to a phrase as superficially generic as “fake news.”

So what does “fake news” really mean?

Hillary Clinton describes it as “an epidemic” that can have “real world consequences.” Germany threatens to massively fine Facebook for each “fake news” article, leading to a new plan to “combat fake news stories.” CNN even calls “fake news” domestic terrorism.

Them’s fighting words.

“Fake news” is not merely descriptive, but prescriptive. It is a justification for censorship, claiming real-world consequences for spoken words.

The argument is not new, and is actually one I addressed in an older incarnation in my upcoming book In Defense of Hatred, and therefore worth quoting at some length:

Choosing the judge of what counts as “hatred” has always proven to be an impossible task to complete objectively, and the power of deciding was often abused by misinformed judges, or even hateful people themselves.

To add metaphor to analogy, consider the quintessential example of a proper limit to otherwise free speech. The famous supreme court Justice Oliver Wendell Holmes Jr. offered the argument that even the most stringent protection of the plaintiff’s first amendment rights would not allow him to falsely shout “Fire!” in a crowded theater, on the grounds that it would pose a clear and present danger to the surrounding public, and therefore ought to be treated not as speech, but as an action.

There are three important circumstances to remember about this case.

First, the argument was never literal, but an analogy, and a bad one at that. Charles Schenck was not in a theater, nor shouting “fire!” nor causing anything like the “clear and present danger” we imagine in the theatrical thought experiment. His crime was to have disagreed with America’s involvement in WWI, distributing pamphlets to young men urging them to join him in abstaining from the draft.2 Given that the harms to the United States, or to anybody else, were uncertain, ambiguous, and suspended somewhere beyond the moment or the immediate future, it would be impossible to argue that Schenck’s actions constituted either a clear or a present danger, let alone both. If America was harmed by a lack of voluntary soldiers, then surely being in the war constituted an equally valid threat to the soldiers themselves, one worthy of discussion. And the distribution of pamphlets is itself hardly a fast or decisive action. Present dangers, in theory, don’t allow for free speech because there is not time to reason through the arguments for and against (like a real fire, in a real theater). So not only was the Justice’s opinion an argument by analogy, but an argument by bad analogy. It was, in fact, completely illegitimate by the analogy-maker’s own standards for it being analogous at all.

Secondly, the argument was not even an original creation of the Justice’s. It had actually been lifted without attribution from a less reputable and experienced prosecutor. If we are reasoning by symbolism, metaphor, and analogy, then we ought to remember that symbolism works in both directions.  If your foundational argument is a poorly-applied plagiarism—as the argument against free speech in America is—then perhaps your stance deserves some reevaluation.

Finally, even Holmes himself was ultimately unconvinced by his own analogy. He argued for a far more liberal interpretation of the First Amendment eight months later in his dissent from the Abrams case, saying “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Despite retaining the “clear and present danger” precedent, Holmes notably dropped the illustrative metaphor while reversing his opinion on a nearly identical case. If one of the most famous and respected Justices in American history can rescind his opinion on the issue, then it may warrant some reconsideration from us lesser mortals too. The omission of this historical detail should not escape our notice.

And what if there actually was a fire? As it turns out, WWI was a perfect example of very literal fire in a very crowded theater, (perhaps the closest the analogy ever came to real-life). It was also a war which, in hindsight, America probably could have and should have avoided entirely, but which cost us over 116,000 soldiers, and wounded another 200,000. Having attempted to awaken America to the danger, Schenck was more similar to a firefighter than to an ill-intending prankster. In accordance with the old saying, he was judiciously punished for his good deed.

Looking back, it is easy for us to say that Justice Holmes got the call in Schenck v. United States backwards. But the wrongness of the decision is not as much of a problem as the law itself, which served to ban unpatriotic or seditious speech. What appears to be seditious may in fact be an attempt at protecting the nation, just as the person shouting “Fire!” might, surprisingly, be alerting theatergoers to a very real fire. And yet the example lives on in our collective memories: you cannot shout “fire!” in a crowded theater.

Is sedition itself really so terrible? Our nation would not exist without some rebellious, freedom-loving—even anarchic—instinct. One could say our nation’s founding emotion is sedition, that primal feeling of injustice which prompts revolt, an innate sense that we all have rights and freedoms, granted to us by nature’s God. When you consider the many paths and possibilities—all the forks in the road a nation can take when confronted with creeping assertions by other powers against their liberties—one cannot actually have freedom without some seditious instinct, and a willingness to act upon it when the occasion requires it. Yet if asked, most people would tend to praise the virtues and wonders of freedom without giving that dirty, grey concrete foundation of sedition its due share of credit.

The arguments against hate speech are all claims to clear and present harm induced by the hateful speech. However, they are even more vague and ambiguous than something as visceral as a stampede in a theater. They are, in other words, worse than a plagiarized bad analogy rescinded by its primary user.

In a building clearly and presently filling with smoke, speech that might be attacked as “hateful” can often be more beneficial than kind words. For this reason, it is better not to dismiss the first firefighter who shows up to a burning building, literal or figurative.

Perhaps it might be relevant at this stage to observe that the primary example of “fake news” creating real-world dangers being referenced appears to be extremely suspicious, and possibly even a false flag. It should be no surprise that the people calling for censorship have, coincidentally, appointed themselves to be the arbiters of truth and goodness.

It would be easy to flail about, pointing at the “hypocrisy” of the allegation, what with the New York Times admitting that they failed to report honestly and accurately on the election, and with the Washington Post admitting that they may have fabricated information and spreading fake news. And let’s not forget the most glorious piece of nonsense of the year, courtesy of the NYT:

But that would miss the purpose. “Fake News” is not an assertion of an argument. If it was, hypocrisy would be taken quite seriously, and would be a powerful charge indeed, a reductio ad absurdum voiding the arguments for censorship, and constitute a universal argument for free speech. But they don’t appear to care, and have in fact doubled down on the “Russia hacked the election” story, one which they already conceded was nonsense (see WP link above), but have now reasserted their position on the slightest whiff of confirmation bias, nevermind the obvious conflicts of interest transparent to anyone who bothers to ask “who benefits?”

“Fake news” is not an assertion of fact, but an assertion of authority. Those who make it claim a right over others to determine what is and is not worthy to be called news. But it is worse than that; in the age of the internet, where stories arise from Twitter and private YouTube videos more than from anywhere else, “news” isn’t some clique of organizations that print newspapers and build websites. It’s us. Like what Clay Shirky described in his warning against SOPA and PIPA, the proposition is nuclear: these people want to go anywhere in the world and censor content.

America is more divided today than it was in 1919, under Justice Oliver Wendell Holmes Jr. It is more divided than it was in 2006, when Hitchens defended hate speech, or in 2012, when Shirky defended the freedom of the press and the assumption of innocence. “Fake news” is a war-banner, a brandishing of allegiance in opposition to the other side, which is to be controlled and repressed if necessary, Constitutional rights be damned. If you’re going on about the “hypocrisy of the left,” saying they’re “the real racists,” or mocking their lip-service to diversity and being inclusive, then you are fundamentally missing the intent and purpose of the movement.

I’m not sure if civil war can be averted, but I do believe it can be deferred for a while. Some useful alternatives, to deprive some of the agents of chaos some of their oxygen:

Facebook  – Minds
Twitter – Gab
Google Chrome – Brave
Wikipedia – InfoGalactic