The problem of quickly spreading misinformation is a critical issue of our time. In the United States our right to free speech is one of the most fundamental, both in our cultural imagination and jurisprudence. It's very difficult to abridge free speech, even for speech acts that obviously harm others or society as a whole.

However it's easy to make the case that people have a right not to be defrauded, at least regarding topics that are material to their wellbeing. Many statutes and cases make fraud illegal, and it's obvious this is an essential part of a functioning government that "promotes the general welfare."

But speech is enshrined in the constitution, and the right to be defrauded isn't. These two things obviously run counter to each other, and although courts have routinely found that free speech doesn't protect fraud, we're on much shakier ground when the act isn't active fraud perpetrated knowingly against a specific person. "Untrue claims that harm everyone in society" probably won't be put into the "fraud" bucket by courts. We can perfectly handle lies deemed slander or libel, but we don't have an obvious framework for misinformation.

I think we should change this. It's become progressively more obvious that our society can barely function if we can't agree on some reasonable shared facts. We don't have to even extend this to every factual realm, but in the same way we can't have a society where the air and water is poisonous, or all the medicines or toys in the stores could kill you, we can't have a society where people can spread obvious lies with absolutely no legal pushback of any kind. Just because the fraud is coming from the inchoate blob that is the media and populace doesn't mean our legal framework is powerless to stop it.

There's a general principle in United States law that any abridgement of a fundamental right must be narrowly targeted to only address a sufficiently large and obvious public interest, without unduly abridging the right. Similarly the abridgement must be commensurate with the degree of public interest.

My proposal

What if we could fight back against misinformation in a way that didn't abridge the misinformed speech at all? What if we merely imposed a requirement to broadcast corrective counter-speech? In other words, what if people who made claims found to be false in court could keep saying them, but would be required to broadcast the truth alongside their lies?

In this way we've side-stepped the free speech question, and instead imposed a duty to support the public interest through the property used to make speech, rather than the speech itself.

Imagine the following:

• Misinformation is defined as any speech that makes "broadcast unsubstantiated material claims". This means the claim must be broadcast in public and not in private, regarding topics that could possibly be substantiated with evidence (one doesn't need to substantiate their opinions, feelings, or philosophies), and must have some potential material effect on others (making the claim that I drink one gallon of water every day is possibly substantiable, but likely has no material effect on others).
• At any time, any person can make a claim in whatever court (more on this in a second) to make a complaint against any list of entities for any list of claims. This is a civil complaint and carries no criminal implications.
• Each side registers some "media packet" representing what they believe to be the correct set of claims. Whoever wins the process must use whatever communications resources they originally used to make the claims to broadcast the newly corrected claims but at some multiple the volume of the original claim (opens new window), decided based on the media used. For example if someone made a social media post with incorrect claims, then whatever algorithmic system surfaces it must 10 times out of 11 show the correction instead, and whenever the original is shown must be annotated with the correction. Similarly if someone sent out mailers with incorrect claims, the original sender must send 2 more mailers spaced out over time with the correction.
• The facts decision can be used to expedite future decisions regarding similar claims.

This is similar to existing slander and libel laws, but requires damages in the form of a counterfactual broadcast rather than money. If we're comfortable with slander and libel, which also adjudicate the truthfulness of claims, we should be comfortable with statutes that only require compensation in the form of more broadcasts.

Making courts better

Since this idea heavily relies on the judicial process to be not only fair in actuality but perceived to be fair by members of society, this is an excellent opportunity to experiment with new kinds of court proceedings.

My instincts tell me these misinformation courts ought to be much more democratic than normal ones, with larger citizen juries (opens new window) than normal making the final decisions. I'll likely have more to say on this in the future.

Potential Objections

• It is only possible to enforce this system with people or telecommunications networks that operate within national borders. The reaches of the dark web cannot be controlled.
• Counterfactual broadcasts might become "spammy" enough to be annoying and counterproductive.
• Might still be too slow. Hopefully if a voluminous liar could be taken to task for many related claims all at once, that would stop the "super-spreaders" in our information ecosystems.

Open Questions

Would such a system work? Would those who are determined to believe false claims be convinced by legally required counterfactual broadcasts? Since the complainant would themselves submit the counterfactual broadcasts, they can design whatever they believe would be most persuasive, but many practical and empirical questions remain.