FIGHT AGAINST “FAKE NEWS” FRAUGHT WITH FAKERY: Our intellectual betters in the EU, including France, Ireland, Germany and England have been passing or flirting with all sorts of laws criminalizing “fake news.” Industry giants Facebook, Twitter and Google have consistently failed at sorting out “fake news” and more often than not, simply add an ideological filter skewed against conservative-leaning speech as if that would fix the problem. I, for one, think the “problem” is greatly exaggerated.

But to heck with what I think. As free-speech advocacy group Article 19 points out, “neither states nor business are getting it right on ‘fake news’ and free expression”:

“The notion of ‘fake news’ is too vague to prevent subjective and arbitrary interpretation, whether in legislation or the rules of online platforms. “Fake news” laws can be (and frequently are under some regimes) used to suppress media freedom and jail journalists, but it would not be much reassurance to have private entities like the tech giants making these assessments instead. Such efforts can lead to undue censorship as a result of flawed algorithms and ill-thought out assessments of what can be considered “true” – not to mention that these businesses may be subject to the influence of non-democratic governments in certain countries where they operate.”

Just last week the Committee to Protect Journalists reported that two Jordanian journalists were arrested for violating that nation’s Press Law, which criminalizes “false information.” In the US, as in Jordan, there is a reflexive impulse of government actors to decry news they don’t like or that may be factually incorrect without proof of malicious motive as “fake” or “false.”

The proof of the problem with these kinds of laws is concrete. In early January, pressured by the new German “fake news” law, Twitter blocked the account of German satirical magazine Titanic after it posted tweets that parodied a far-right politician.  The German Federation of Journalists, which has criticized the law since it was first proposed last year, told CNN said that the suspension of Titanic was exactly the kind of censorship the group has warned about for months. Eurocrats countered by saying that “rules covering hate speech and illegal content on digital platforms [are] in line with those already imposed on print media.” Justice minister Heiko Maas said that “freedom of expression is not a license to commit crimes.” When a bureaucrat can’t tell the difference between “hate speech” and humor that actually lampoons “hate speech,” you know trouble is inevitable. (Not that the Germans are famous for their sense of humor anyway).

Worse yet, even The New York Times has admitted that the impact of the fake news propagated in social media may have been wildly exaggerated. While “fake news” is on the never-ending and always evolving list of reasons that Ms. Clinton lost an election she had thought was sewn up, it is emerging that these fake news stories and memes didn’t change votes, but rather reinforced the bubbles and bias of those who had already made up their minds.

Here’s a crazy idea: how about treating the polity as capable of thinking for themselves and embracing the “marketplace of ideas“? In the words of the great Nat Hentoff: “Let the asses bray.”

**Shameless Self-Promotion: I’ll be speaking on the keynote panel “Fake News Eats the World: Protecting Speech, Evaluating Truth & Validating our Decisions” at the Legaltech 2018 Conference in New York City on Thursday, January 31, 2018