Election law expert Nathaniel Persily has written an interesting article about the Internet and the 2016 election. The problems Nate (and others) see in 2016 will inform the debate about free speech now and in future elections.

Persily notes that the 2016 campaign saw an “online explosion of campaign-relevant communication from all corners of cyberspace.” Here’s his description of the Trump campaign’s social media efforts:

Employing traditional web-based communication, event promotions, new apps, native advertising (in which web ads are designed to look like articles in the publication containing them), and new uses of social media, the campaign launched 4,000 different ad campaigns and placed 1.4 billion web impressions (meaning ads and other communications visible to individual users)…the campaign targeted 13.5 million persuadable voters in sixteen battleground states, discovering the hidden Trump voters, especially in the Midwest, whom the polls had ignored.”

Trump himself tweeted a great deal, having 13 million followers by election day. But the mainstream media also picked up the tweets and prompted wide discussion and attention to them. Trump garnered about $4 billion in free media during the primaries and the general election, an astonishing sum. The new media thus drove the agenda for the mainstream media; in the past, the latter shaped the agenda for everyone.

From a First Amendment perspective, 2016 saw more speech by more people than previous elections. The election also showed that you can win the White House without dominating fundraising, an outcome that weakens the case for campaign finance regulation. Both results seem good for free speech.

However, Nate Persily is a learned and sensible analyst, and his concerns about 2016 merit our attention.

He writes, “Those who worry about the implications of the 2016 campaign are left to wonder whether it illustrates the vulnerabilities of democracy in the Internet age, especially when it comes to the integrity of the information voters will access as they choose between candidates.”

In particular, he worries about “fake news” understood as propaganda.

Propaganda can overlap with satire, profit-seeking fake news, and conspiracy theories, but it involves much more: It is the deliberate use of misinformation to influence attitudes on an issue or toward a candidate. Fake news as propaganda can originate from any node on the diffuse party network and campaign organization described above. It can come from official campaign organs, unofficially allied interest groups, friendly media organizations and websites, foreign actors, or even the candidate himself. In the age of social media, fake news ricochets among these different campaign nodes, moving online and offline as the campaigns, their supporters, and the media repeat stories in the news. The complexity of the network that produces and retransmits fake news often makes it hard to pinpoint the source of a false claim. This is all the more true when the candidate himself retransmits or creates false claims through his social-media account. [italics added]

Lies, the other word for fake news, distorts voter decisions:

False stories create a blanket of fog that obscures the real news and information communicated by the campaigns. The available academic evidence suggests that viewers have considerable difficulty distinguishing between real and fake news, and that trust in the media is already at an all-time low. The prevalence of false stories online erects barriers to educated political decision making and renders it less likely that voters will choose on the basis of genuine information rather than lies or misleading ‘spin.’

Of course, lies have always been a problem for voters and democracy. What to do? Maybe nothing. Persily notes: “We do not yet know how big an effect fake news had on the 2016 campaign.” He cites an early study that indicates fake news did not change the election; television remained very important and the most important source of news for voters, who were no more likely to believe fake news than placebo stories.

In any case, the courts and the First Amendment say keep government out of speech regulation and allow voters to decide what is true and what is not. I often meet people who believe the government should repress untrue political speech. (Ohio even set up a truth commission for that purpose, later learning they had violated the First Amendment). To be clear, Persily is not proposing Congress censor “fake news.” But the nature of online political speech in 2016 (and the outcome of the election) may encourage the thought that “something ought to be done” about false and ugly speech. Free speech advocates should be prepared.

Persily also wonders whether fake news might “demobilize voters by fanning cynicism regarding the candidates and the election.” Maybe the actual turnout in those elections could have been higher but it was about the same as 2008 and 2012, elections that “had seemed to confirm Internet utopians’ belief that digital tools enhance democracy by expanding citizen empowerment and engagement.”

The Internet’s ability to deliver targeted information also may engender “bubbles, filters, and echo chambers that shelter people from information that might challenge the messages sent to them by campaigns, partisan media, or social networks.” Bubbles are bad no doubt, but forcing people to consider views they dislike or abhor seems worse. No doubt we will hear much about “improving” debate in days to come. The quality of public debate, however, is not a purpose of government or within its ambit.

Persily thinks anonymity (including anonymous speech) poses dangers beyond fake news. It enables foreign powers to intervene in U.S. elections, and it allows trolls to “commit racial and sexual harassment.” Anonymous speech and anonymity has a long history in American politics. It has been both protected (in voting and in some speech) and not protected (with campaign contributions). We should expect a renewed debate about anonymity, a debate that will be worth having for no other reason than the alternatives are so much worse for free speech.

Persily looks closely at private responses to 2016. Twitter, Google, and Facebook have all taken actions to reveal and presumably eliminate fake news or ugly speech. He thinks these actions and those likely to come from these businesses are unlikely to match the scope of the problem, primarily because the need to make money cuts against troubling customers.

As private firms, the Internet giants are less restrained in limiting speech. The First Amendment applies to the U.S. government at all levels, not to U.S. businesses. However, I would worry that the line between public and private here will not remain bright. These companies may avoid angering politicians and thus crack down on dissent. But if they crack down on speech in response to the demands of their customers?

Finally, Persily says 2016 shows “the liberating, anti-establishment potential [of the Internet] can be harnessed by demagogues who appeal to the worst impulses of the mob.” But what limited demagogues before the Internet, assuming they had much less influence? Nate argues that the influence of demagogues rose as that of political parties and the mainstream media fell. He doubts parties and the media can once again limit the worst impulses of the mob. But both institutions have lost the confidence of many if not most Americans. What is needed are new or reformed institutions that can foster a measure of faith from the public while preserving the free part of freedom of speech.