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The First Amendment in an era of social media

The First Amendment, which guarantees free speech, has long been the lifeblood of our democracy. Yet free speech is based on two expectations: that, even when people are biased, their facts are generally truthful; and that the opinions and ideas that circulate, however disturbing or discriminatory, are attributable to identifiable individuals.

During the past three years, President Trump’s use of Twitter to attack the news media for “fake news” has occurred alongside an exponential growth in social media, which has enabled the spread of partisan information and disinformation whose sources are often not clear. This new world of extremist views, often loosely tethered to facts, has raised the stakes for determining what news is protected by free speech, even if it appears biased, and what news is demonstrably false, but presented as factual with the intention of deceiving the public.

For most Americans, “fake news” debuted as a frightening part of the 2016 elections. Russian social media posts, disguised as American accounts, attempted not only to influence the election in favor of Donald Trump, but to heighten Americans’ distrust in our institutions, especially our elections, and to divide us by race, religion and political views. 

The use of social media to spread disinformation and extremist views is important because two out of three American adults have come to get some of their news on social media. According to a Pew survey released in September of 2018, 43% of Americans get at least some news from Facebook, which also owns Instagram; 21% get some news from YouTube, which is owned by Google; and 12% get some news from Twitter. Just as important, social media is able to target its “news” to those highly engaged partisans most likely to use social media for information and to believe what they read. 

Despite efforts by the technology companies to curtail fraudulent news, Russia and a growing number of other countries continued to influence the 2018 midterm elections by posting misinformation on social media aimed at attacking individual candidates, dampening turnout, stoking distrust in the voting process and amplifying distorted narratives about particular events. 

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What has changed over the past three years is the increasing use of disinformation by American political activists — about voting, political opponents and current events. This was most conspicuous during now- Supreme Court Justice Brett Kavanaugh’s confirmation hearings and in the 2018 coverage of Central American migrants coming toward our border. As a new report by PEN, “Truth on the Ballot: Fraudulent News, the Midterm Elections, and Prospects for 2020,” concludes, we are threatened by a new domestic “normal,” in which the end justifies the means and bogus news promulgated by American politicians, activists and reporters is considered “a distasteful but not disqualifying political tactic.”  

The number of misleading political news stories on social media has already surged in advance of the 2020 elections. Fake news stories that went against Democrats and liberals made up 62% of the fraudulent stories on Facebook so far in 2019 and drew 104 million viewers. Of the fraudulent stories on Facebook in 2019, 29% went against Republicans or conservatives and were seen 49 million times, according to Avaaz, a global advocacy group that tracks misinformation.  

Caught between the contradictory pressures to protect free speech, to remove misinformation and to avoid the accusation of being a global censor, Facebook has revised its algorithms for detecting fake news (a fraught project); partnered with third-party fact-checkers; and shut down accounts whose authors appeared fraudulent. Although taking down pages and ads posted by inauthentic sources supposedly avoids the problem of interfering with free speech, critics say that Facebook is not always clear as to why it is deleting a page. Moreover, determining whether the accounts are purchased by the persons or organizations they purport to be is not always easy. 

As our country prepares for an impeachment trial, three years of attacks on our fact-checked mainstream media, along with a steady stream of hyper-partisan social media output, is grievously apparent. Many Americans either do not believe or care about evidence that our president held back military equipment from Ukraine as a bribe to secure dirt on his presumed 2020 opponent, Joe Biden. It is this widespread lack of trust in both the news and our government that threatens our democracy and will have to be rebuilt by whoever becomes our next president. 

Carol Ascher, who lives in Sharon, has published seven books of fiction and nonfiction, as well as many essays and stories.

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