Clay Calvert*

The presidential election season of 2016 brought with it massive news media hand-wringing, if not outright panic in some quarters, about so-called fake news.[1]  As described by the New York Times, fake news is “widely understood to refer to fabricated news accounts that are meant to spread virally online.”[2]  According to that newspaper, “[m]ost of the fake news stories are produced by scammers looking to make a quick buck”[3] and “[t]he vast majority of them take far-right positions.”[4]  Others, however, contend “[t]he term ‘fake news’ is fuzzy.  It can refer to a multitude of problems, including disinformation, propaganda, [and] conspiracy-mongering.”[5]  It can even sweep up satirical news articles.[6]

Regardless of how it is defined, however, fake news struck palpable fear into the hearts of many.  About one month after her stunning defeat to Republican Donald Trump, Democrat Hillary Clinton labeled fake news an “epidemic”[7] and even called for a federal law to address it.[8]  Her comments came after a shooting in early December 2016 at a Washington, D.C. restaurant was blamed on fake news.[9]  This anecdote seemed to be all the proof that many people needed to believe about the supposedly direct, dangerous, and powerful effects of fake news,[10] especially on political conservatives. For example, the Washington Post blog portrayed conservatives as more likely to be fooled by fake news because “liberals were slightly more predisposed to think critically than conservatives.”[11]

The latent—sometimes spoken—theme is that fake news may have caused Hillary Clinton to lose the election to Donald Trump,[12] although there is no empirical proof of this theme.[13]  A USA Today article, for example, asserted that the spread of fake news “on social media is what a growing chorus of journalists, liberals, and tech leaders (three overlapping groups obviously) at least partially blame for Donald Trump’s election victory.”[14]  Addressing the blame-fake-news paradigm for the New York Times, John Herrman observed that “[f]or many people, and especially opponents of President-elect Donald J. Trump, the attention paid to fake news and its role in the election has provided a small relief, the discovery of the error that explains everything.”[15]  For his part, President Barack Obama stated in late November 2016 that he was “concern[ed] about the general misinformation from all kinds of sources, domestic, foreign, on social media, that make it very difficult for voters to figure out what’s true and what’s not.”[16]

Of course, government efforts to regulate and criminalize purveyors of fake news clash with fundamental notions of free speech protected by the First Amendment,[17] particularly political expression, which lies at the heart of that amendment.[18]  Even deliberate, non-libelous falsehoods can be protected, as the U.S. Supreme Court recognized in United States v. Alvarez.[19]  To punish false speech via legal mechanisms other than defamation[20] and fraud,[21] the government would also need to demonstrate what the Supreme Court has called “a direct causal link”[22] between the speech in question and the problem or harm it supposedly produces.  A mere correlation between speech and harm will not suffice; instead, causation must be proved.[23]  There is, of course, no empirical evidence demonstrating that fake news caused the outcome of the 2016 presidential election to be different from what it would have been without fake news.

Yet, as Harvard University Professor Noah Feldman argues, the call for government action against fake news “reflects a certain crisis of faith in free speech among liberals who are increasingly treating free speech as the problem rather than the solution for a free society.  From hate speech to ‘microaggressions’ to ‘fake news,’ liberals are calling for the government to censor speech.”[24]  This thesis is not new, of course, as it tracks that of former Stanford Law School Dean Kathleen Sullivan more than twenty years ago.[25]

Regardless of political perspective or whether Feldman is correct, the First Amendment protects a vast amount of speech that is both false and worthless, including persistent denials[26] of the Holocaust.[27]  As the late Florida State University Professor Steven Gey wrote in a 2008 article that nine years later seems incredibly relevant for fake news, the government “cannot suppress statements of fact simply because they are demonstrably untrue and may lead astray those who hear the statements and are too lazy or dim-witted to sort out truth from falsehood.”[28]  Indeed, the U.S. Supreme Court in 2010 made it clear that “[t]he First Amendment confirms the freedom to think for ourselves.”[29]

Professor Gey added that “[i]ntellectual paternalism is contrary to the government’s role” because the First Amendment must encompass:

a deep skepticism about the good faith of those controlling the government.  We instinctively assume that the government does everything for a political reason.  If the government punishes the expression of factual falsehoods—such as Holocaust denial—it does so because the statement of such facts are bound up with political perspectives that the government seeks to undermine.[30]

Ultimately, as if presciently predicting the controversial rise of fake news in 2016, Gey concluded that “purveyors of nonsense are merely incidental beneficiaries of the ideological agnosticism mandate that has characterized the expansion of First Amendment protections during the twentieth century.”[31]  The agnosticism mandate encompasses the notion that “collective political control of speech is inconsistent with democratic self-governance not because it will lead to more social evils in the form of bad political results, but rather because free speech regulation undermines the very character of the democratic political system itself.”[32]  In brief, while fake news possesses no political or social value, allowing the government in the realm of politics—the realm in which today’s concerns about fake news fester and flourish—to define what is true and false improperly vests temporary political majorities with authority that contradicts democratic self-governance.[33]

What has gone missing throughout the news media’s discussion regarding fake news is a theory from the field of communication research called the third-person effect.  This article, in interdisciplinary fashion, thus infuses this important concept and the body of research that comes with it into the current discussion about whether the government should regulate fake news.

More than twenty-five years ago, communication scholars Jeremy Cohen and Timothy Gleason argued for “an interdisciplinary approach to communication and law”[34] that would provide “a means of raising basic questions about communication assumptions inherent in the law”[35] and determining “suitable means for identifying those assumptions and for testing both their scientific and their legal validity.”[36]  This article adopts that call to action and illustrates, as described below, that the failure of lawmakers to account for the third-person effect might lead to censorship of expression—in this case, fake news—when it is unnecessary.

What is the thesis of the third-person effect?  In a seminal 1983 article, Columbia University Professor W. Phillips Davison observed that:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others.  More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.[37]

Distilled even more succinctly, Davison opined that “[i]n the view of those trying to evaluate the effects of a communication, its greatest impact will not be on ‘me’ or ‘you,’ but on ‘them’—the third persons.”[38]  With regard to First Amendment issues such as that involving fake news today, Davison wrote that “[t]he phenomenon of censorship offers what is perhaps the most interesting field for speculation about the role of the third-person.”[39]  He pithily and somewhat waggishly noted that:

[I]t is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited.  Even the censor’s friends are usually safe from pollution.  It is the general public that must be protected.  Or else, it is youthful members of the general public, or those with impressionable minds.[40]

Subsequent to Davison’s 1983 article, a body of research consisting of more than one hundred peer-reviewed articles regarding the third-person effect has developed.[41]  This research suggests there are two facets to the notion of third-person effects.  The first is a perceptual component called the third-person perception, which “predicts that people exposed to persuasive communication tend to see it as having a greater effect on others than on themselves, especially so when messages are presumed to have undesirable social consequences.”[42]  A 2003 article notes that “[t]he perceptual component of the third-person effect has proved to be a robust finding in empirical research.”[43]

Importantly—and dangerously—for purposes of regulating speech, that same article reports that:

In several recent studies, for example, data indicate that the majority of people in representative samples reported a greater influence on others than on themselves for pornography, for misogynic rap music, and for violence in media.  In all three studies, support for restrictions on such media content was stronger among those who perceived a greater self-other discrepancy.[44]

In brief, as a 2015 article observes, “[e]xtant studies have supported the perceptual hypothesis”[45] in several scenarios, thus supporting Davison’s original belief that “people tend to believe that others would be more influenced by the media contents than themselves.”[46]

The second component of the third-person effect is behavioral rather than perceptual.  That behavior is the act of speech censorship.  As a 2016 article notes, “third-person effects literature shows that a belief in media effects has potential behavioral outcomes, such as attempts to counteract or censor the offending media.”[47]  In other words, “people who exhibit third-person perception will be more likely to support restrictions on these messages.”[48]

As one scholarly article puts it, “[a]dvocates for censorship seem particularly likely to be overestimating the effects of media on others—the ‘gullible’ public.”[49]  The authors of that same article concluded that their own empirical study “support[s] the third-person effect hypothesis and offer[s] evidence of its relationship with the censorship phenomenon.  A significant part of the apprehension caused by media effects results from the overestimation of its effects on others.”[50]

And what about messages on Facebook, where so much concern has centered regarding fake news?  A 2015 article published in the revered journal New Media & Society found “significant support for TPE [third-person effect] in the context of social media.”[51]  The danger for censorship, in turn, seems particularly strong in the area of politics because the third-person effect “increases with ego-involvement.”[52]

The implications of the third-person effect for the regulation of fake news should, by now, be clear.  People who scream and cry for its regulation by the government likely believe that they are not influenced or impacted by fake news in any way.  They are too smart for that.  Instead, it is only the foolish and simple-minded “others”—dare one even say the non-elites or, perhaps, the huddled masses in so-called fly-over states?—out there who surely will be duped by it.  Therefore, the logic goes, it should be censored in the name of promoting a healthy and hearty democracy.  This logic, of course, provides a rich vein of research for communication scholars to mine in the near future.  But, for now, it should make those calling for censorship take caution in their tone.

A survey conducted by the Pew Research Center in early December 2016 found that “[a]bout two-in-three U.S. adults (64%) say fabricated news stories cause a great deal of confusion about the basic facts of current issues and events.”[53]  And yet most of those surveyed believed they would not be fooled by fake news—consistent with the third-person effect.[54]  In particular, the survey found that “Americans express a fair amount of confidence in their own ability to detect fake news, with about four-in-ten (39%) feeling very confident that they can recognize news that is fabricated and another 45% feeling somewhat confident.”[55]  In other words, 84% of those surveyed were either somewhat confident or very confident that they would not be fooled by fake news, but 64% believed fake news still causes a great deal of confusion.  It fits the third-person effect perfectly—I won’t be fooled by fake news, but others will.

The bottom line is that the third-person effect today stands as “a venerable member of the family of concepts that mass communication scholars regularly address.”[56]  This article has attempted to introduce lawmakers, legal scholars, and the judiciary to the importance of this concept as it applies to current frets and worries about fake news.

If it does nothing else, this article hopefully quells what some might view as hysterical concerns about the impact of fake news on the voting population.  And if it does something more than that, then this article should give lawmakers serious reason to take a thoughtful and deliberate pause before proposing any bills aimed at the censorship of fake news.  This article thus resides, as Cohen and Gleason put it, squarely at the intersection “where law is based on behavioral and social assumptions about communication.”[57]  Regardless of one’s political views, the neutral and objective peer-reviewed social science research regarding the third-person effect should not be ignored when it comes to evaluating the necessity—or lack thereof—of regulating fake news.

—–

Recommended Citation: Clay Calvert, Fake News, Free Speech, & the Third-Person Effect: I’m No Fool, But Others Are, 7 Wake Forest L. Rev. Online 12 (2017).

 

* Professor & Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Fla.  B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University.  Member, State Bar of California.

[1]   See, e.g., Jim Rutenberg, Journalism’s Next Challenge: Overcoming the Threat of Fake News, N.Y. Times, Nov. 7, 2016, at B1 (“The internet-borne forces that are eating away at print advertising are enabling a host of faux-journalistic players to pollute the democracy with dangerously fake news items.”) (emphasis added); Margaret Sullivan, Sick of the News? This is No Time to Tune Out., Wash. Post (Dec. 8, 2016), https://www.washingtonpost.com/lifestyle/style/sick-of-the-news-this-is-no-time-to-tune-out/2016/12/08/97ff1e70-bd61-11e6-91ee-1adddfe36cbe_story.html (asserting that the United States today is confronting an “era of fake news causing real trouble”) (emphasis added).

[2]   Jeremy W. Peters, Wielding Claims of ‘Fake News,’ Conservatives Take Aim at Mainstream Media, N.Y. Times, Dec. 26, 2016, at A11.

[3]   Editorial, The Digital Virus Called Fake News, N.Y. Times, Nov. 20, 2016, at SR10.

[4]   Id.

[5]   Margaret Sullivan, Feds Should Stay out of Fight Against Fake News, Wash. Post, Dec. 16, 2016, at C1.

[6]   Abby Ohlheiser, How the War Against Fake News Backfired, Wash. Post (Dec. 7, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/12/07/how-the-war-against-fake-news-backfired.

[7]   Paul Kane, Hillary Clinton Attacks ‘Fake News’ in Post-Election Appearance on Capitol Hill, Wash. Post (Dec. 8. 2016), https://www.washingtonpost.com/news/powerpost/wp/2016/12/08/hillary-clinton-attacks-fake-news-in-post-election-appearance-on-capitol-hill/.

[8]   See id. (reporting that Hillary “Clinton voiced support for some federal legislation to address the ‘fake news’ issue,” and adding that “[s]he did not make clear what legislation could combat the problem”).

[9]   Cecilia Kang & Adam Goldman, Fake News Brought Real Guns in Washington Pizzeria Attack, N.Y. Times, Dec. 6, 2016, at A1.

[10]   See id. (asserting that “[t]he shooting underscores the stubborn lasting power of fake news”); Barton Swaim, An Indictment of ‘Real’ News, Wash. Post, Dec. 13, 2016, at A17 (“‘Fake news’ is the name many journalists now use for fabricated Internet-based news stories, many of them generated from sites in Eastern Europe and Russia, and the pizzeria scare has encouraged many of them to conclude that Web-based rumor-peddling is a threat to the republic.”).

[11]   Christopher Ingraham, Why Conservatives Might be More Likely to Fall for Fake News, Wash. Post (Dec. 7, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/12/07/why-conservatives-might-be-more-likely-to-fall-for-fake-news/.

[12]   See Jason Horowitz, Spread of Fake News Provokes Anxiety in Italy, N.Y. Times (Dec. 2, 2016), https://www.nytimes.com/2016/12/02/world/europe/italy-fake-news.html (reporting that “[a]nalysts in the United States have suggested that Moscow injected fake news into social media sites there as a powerful weapon to influence the November election”); Jon Swartz, Jessica Guynn & Elizabeth Weise, Facebook, Google to Take Fake News Seriously, USA Today, Nov. 16, 2016 (noting that Google CEO Sundar Pichai claimed “that fake news might have swung enough votes toward President-elect Donald Trump to influence the election”); David Zurawik, Fake News a Symptom of Sickness in Media Ecosystem, Balt. Sun (Nov. 18, 2016), http://www.baltimoresun.com/entertainment/tv/z-on-tv-blog/bs-ae-zontv-fake-news-20161118-story.html (reporting on “a group of Facebook employees questioning the role fake news on the site played in the election”).

[13]   James Warren, Did Fake News Help Elect Trump? Not Likely, According to New Research, Poynter (Jan. 18, 2017), https://www.poynter.org/2017/did-fake-news-help-elect-trump-not-likely-according-to-new-research/445724/.

[14]   Steve Deace, Untrustworthy Journalists Left Us Vulnerable to Fake News, USA Today (Nov. 23, 2016, 4:37 PM), http://www.usatoday.com/story/opinion/2016/11/23/fake-news-trump-facebook-journalism-steve-deace-column/94348136/.

[15]   John Herrman, Fixation on Fake News Overshadows Waning Trust in Real Reporting, N.Y. Times (Nov. 18, 2016), http://www.nytimes.com/2016/11/19/business/media/exposing-fake-news-eroding-trust-in-real-reporting.html.

[16]   Gardiner Harris, As Obama’s Tour Ends, He Says U.S. Involvement Abroad Must Not, N.Y. Times (Nov. 21, 2016), https://www.nytimes.com/2016/11/21/world/as-obamas-tour-ends-he-says-us-involvement-abroad-must-not.html.

[17]   The First Amendment to the U.S. Constitution provides, in pertinent part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  U.S. Const. amend. I.  The Free Speech and Free Press Clauses were incorporated more than ninety years ago through the Fourteenth Amendment Due Process Clause as fundamental liberties that apply to state and local government entities and officials.  See Gitlow v. New York, 268 U.S. 652, 666 (1925).

[18]   See, e.g., Citizens United v. FEC, 558 U.S. 310, 349 (2010) (“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (observing that when it comes to First Amendment freedom of speech, “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office”).

[19]   132 S. Ct. 2537, 2547 (2012) (declaring unconstitutional, on First Amendment grounds of being an impermissible content-based restriction of speech, a portion of the federal Stolen Valor Act of 2005 that made it a crime to utter a “false statement made at any time, in any place, to any person” about winning a Congressional Medal of Honor).

[20]   An individual whose reputation is harmed by fake news may have a viable cause of action for defamation.  See What Legal Recourse Do Victims of Fake News Stories Have?, NPR (Dec. 7, 2016, 7:04 PM), http://www.npr.org/2016/12/07/504723649/what-legal-recourse-do-victims-of-fake-news-stories-have (quoting Professor Derigan Silver for the propositions that “[f]ake news sites are clearly a situation where they’re engaging in a defamatory statement, a false statement about another that damages that person’s reputation” and that such a scenario “is certainly actionable”).

[21]   See United States v. Stevens, 559 U.S. 460, 468 (2010) (identifying fraud as one of several categories of speech that are not protected by the First Amendment).

[22]   See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011) (asserting there must be “a direct causal link” between the speech and alleged harm in order for a statute to pass strict scrutiny review).

[23]   See id. at 800 (remarking that the studies relied upon by California lawmakers “purport to show a connection between exposure to violent video games and harmful effects on children,” but “do not prove that violent video games cause minors to act aggressively (which would at least be a beginning),” and that the studies California relied upon “show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game”).  See generally Clay Calvert & Matthew D. Bunker, An “Actual Problem” in First Amendment Jurisprudence?  Examining the Immediate Impact of Brown’s Proof-of-Causation Doctrine on Free Speech and Its Compatibility with the Marketplace Theory, 35 Hastings Comms. & Ent. L.J. 391, 403 (2013) (addressing the importance of the difference between causation and correlation within the context of the Supreme Court’s ruling in Brown).

[24]   Jonathan Turley, The Real Danger of Fake News, Jonathan Turley (Dec. 26, 2016), https://jonathanturley.org/2016/12/26/the-real-danger-of-fake-news/.

[25]   See Kathleen M. Sullivan, Discrimination, Distribution and Free Speech, 37 Ariz. L. Rev. 439, 440 (1995) (“It used to be that censorship was associated with the right and free speech libertarianism with the left.  Now we hear new calls for speech regulation from the left, and increasing endorsement of free speech from the right.”); Kathleen M. Sullivan, Resurrecting Free Speech, 63 Fordham L. Rev. 971, 973 (1995) (writing that “[i]t used to be that censorship was associated with the right and free speech libertarianism with the left.  But today, in so many controversies, those political poles have switched.  Now we hear new calls for speech regulation coming from the left and increasing endorsement of free speech from the right.”).

[26]   See Jeff Gammage, When Fact is Dismissed as Belief, How to Prove the Holocaust, Phila. Inquirer (Nov. 13, 2016, 3:01 AM), http://www.philly.com/philly/news/20161113_When_fact_is_dismissed_as_belief__how_to_prove_the_Holocaust.html (reporting that denial of the Holocaust, in which “the Nazis systematically exterminated six million European Jews in the 1940s,” today remains very “real – and insidious, experts say, particularly in a modern ‘soft core’ approach that skirts outright denial but distorts established fact in a way that subverts historical truth”).

[27]   See Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 Fla. St. U. L. Rev. 1, 2–3 (2008).

[28]   Id. at 21.

[29]   Citizens United v. FEC, 558 U.S. 310, 356 (2010).

[30]   Gey, supra note 27, at 21–22.

[31]   Id. at 22.

[32]   Id. at 19.

[33]   As Gey aptly encapsulated it:

Politicians are not scholars, and politicians’ claims of factual veracity should never be taken at face value—even when there is independent evidence that the government is actually correct.  This is not to say that the politicians are always wrong; it is to say that determinations of right and wrong should not be in the hands of politicians.  Id. at 22.

[34]   Jeremy Cohen & Timothy Gleason, Social Research in Communication and Law 13 (1990).

[35]   Id. at 12.

[36]   Id.

[37]   W. Phillips Davison, The Third-Person Effect in Communication, 47 Pub. Opinion Q. 1, 3 (1983).

[38]   Id. (emphasis added).

[39]   Id. at 14.

[40]   Id.

[41]   See Guy J. Golan & Anita G. Day, The First-Person Effect and Its Behavioral Consequences: A New Trend in the Twenty-Five Year History of Third-Person Effect Research, 11 Mass Comm. & Soc’y 539, 540 (2008) (“During the past 25 years, the third-person effect (TPE) has been widely investigated by scholars as evidenced by more than 100 peer-reviewed journal articles and dozens of conference papers.  It has been argued that the TPE has emerged as one of the key theories in media effects research.”).

[42]   Guangchao Charles Feng & Steve Zhongshi Guo, Support for Censorship: A Multilevel Meta-Analysis of the Third-Person Effect, 25 Comm. Reps. 40, 41 (2012).

[43]   Albert C. Gunther & J. Douglas Storey, The Influence of Presumed Influence, 53 J. Comm. 199, 200 (2003).

[44]   Id. (emphasis added) (citations omitted).

[45]   Guang-Xin Xie & Jessie M. Quintero Johnson, Examining the Third-Person Effect of Baseline Omission in Numerical Comparison: The Role of Consumer Persuasion Knowledge, 32 Psychol. & Marketing 438, 439 (2015).

[46]   Id.

[47]   Brett Sherrick, The Effects of Media Effects: Third-Person Effects, the Influence of Presumed Media Influence, and Evaluations of Media Companies, 93 Journalism & Mass Comm. Q. 906, 907 (2016).

[48]   Xigen Li, Third-Person Effect, Optimistic Bias, and Sufficiency Resource in Internet Use, 58 J. Comm. 568, 569 (2008).

[49]   Hernando Rojas et al., For the Good of Others: Censorship and the Third-Person Effect, 8 Int’l J. Pub. Opinion Res. 163, 164 (1996).

[50]   Id. at 182 (emphasis added).

[51]   Mina Tsay-Vogel, Me Versus Them: Third-Person Effects Among Facebook Users, 18 New Media & Soc’y 1956, 1965 (2015).

[52]   Scott A. Reid & Michael A. Hogg, A Self-Categorization Explanation for the Third-Person Effect, 31 Hum. Comm. Res. 129, 129 (2005).

[53]   Michael Barthel et al., Many Americans Believe Fake News is Sowing Confusion, Pew Res. Ctr. (Dec. 15, 2016), http://www.journalism.org/2016/12/15/many-americans-believe-fake-news-is-sowing-confusion.

[54]   Id.

[55]   Id.

[56]   Richard M. Perloff, The Third-Person Effect: A Critical Review and Synthesis, 1 Media Psychol. 353, 354 (1999).

[57]   Cohen & Gleason, supra note 34, at 15.

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