Bhagwat on The New Gatekeepers?: Social Media and the "Search for Truth" @UCDavisLaw @JournalSpeech

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing The New Gatekeepers?: Social Media and the 'Search for Truth' in the Journal of Free Speech Law. Here is the abstract.

One of the most notable, and noted, consequences of the spread of social media is the collapse of sources of information that are broadly trusted across society. This is a troubling development, it is argued, because trusted communicators are needed if we are to maintain a common base of facts, accepted by the broader public, that is essential to a system of democratic governance. As consensus on facts collapses, so too does democracy. Why do we find ourselves in this situation? The crucial insight here is that through most of the 20th century, trusted communicators were also the gatekeepers of knowledge and news. These gatekeepers—the institutional media—tended to be highly concentrated, and sought to develop reputation as “objective,” nonpartisan figures—as epitomized by Edward R. Murrow and Walter Cronkite of CBS. The key point to understand, however, is that the public trusted media gatekeepers because they had no choice—there were no significant opposing voices to question or undermine that trust. And because these gatekeepers overwhelmingly tended to reflect the views of the political center, there were simply no opportunities for the public to question consensus facts or to become aware of what the institution media was not telling them. Eventually, of course, this system of institutional concentration and consensus collapsed. While the decline in trust in the media dates back to the 1970s, there can be little doubt that the internet put a final end to institutional media’s dominance. In a world in which every citizen became a potential publisher, people suddenly had a choice of what voices to pay attention to. For similar reasons, the range of opinions expressed publicly became massively more diverse, and so consequently did factual world views. And political polarization ensures that people embrace those world views that reflect their own preexisting views and biases. Hence the collapse in consensus. The loss of faith in institutional elites and the institutional media has created an intellectual atmosphere of existential angst. The primary response to this angst has been to place enormous amounts of pressure on the new gatekeepers—which are surely social media platforms, given their dominance in funneling public discourse—to replicate the role of the 20th century institutional media. The question I am raising is whether, leaving aside the (dubious) constitutionality of regulating social media, is it even a good idea to try and push social media to be gatekeepers who determine who is, and is not, a trusted communicator. I will argue that it is not, for several reasons. First, social media have no economic incentives to act as responsible gatekeepers. Second, social media firms have absolutely no expertise or training that would enable them to be either effective gatekeepers of truth, or identifiers of trusted communicators. But third, and finally, I would question whether any gatekeepers are a good idea. Leaving aside the difficulty of identifying “truth,” my question is, are gatekeepers and deference to designated “experts” (i.e., trusted communicators) really the best way to identify “truth” and, conversely, misinformation? I think not, and I think that First Amendment principles support my view. First, there is a deep tension between this institutional conformity and Justice Holmes’s notion of the “marketplace of ideas”: “that the best test of truth is the power of the thought to get itself accepted in the competition in the market.” In an institutional system of conformity and concentration, from wherein will emerge competition among ideas? Relatedly, the Supreme Court has insisted since the time of Louis Brandeis that when faced with false or dangerous speech, “the remedy to be applied is more speech, not enforced silence.” Gatekeepers are anathema to competition and are quintessentially silencers. In short, perhaps the collapse of gatekeepers and trusted communicators is not such a terrible thing after all. And instead of trying to recreate a bygone era, perhaps we should be thinking about how to reinvigorate the marketplace of ideas, and public discourse, that surmounts political polarization.

Download the article from SSRN at the link.