Advertisement
Nearly 40% of Americans say they have no trust in news media, according to a 2023 Gallup poll.
Former U.S. attorney Barbara McQuade says disinformation is seeping into every aspect of our political and social lives.
How can we stop it?
Today, On Point: How disinformation ‘sabotages America.’
Barbara McQuade, law professor at the University of Michigan. Former U.S. attorney for the Eastern District of Michigan. Author of “Attack From Within: How Disinformation Is Sabotaging America.”
Excerpt from Attack From Within: How Disinformation is Sabotaging America by Barbara
McQuade (Seven Stories Press, 2024).
Part I
MEGHNA CHAKRABARTI: On the evening of December 5, 2020, Michigan Secretary of State Jocelyn Benson and her four-year-old son were finishing up decorating the house for Christmas. As they sat down to watch “How the Grinch Stole Christmas,” they heard a noise outside.
Stop the steal. Stop the steal. Stop the steal.
(You are a threat to us.)
You’re a threat to democracy. You’re the threat to free and honest elections. (SHOUTS)
“Dozens of armed individuals stood outside my home,” Secretary Benson said in a statement the following day.
JOCELYN BENSON: It was quite unnerving because I’m all for peaceful protest and certainly protecting people’s First Amendment rights to do that. But you do cross the line, when you show up at someone’s private residence in the dead of night, trying to intimidate a public official out of doing the job that they’ve sworn an oath to do.
CHAKRABARTI: The protestors were objecting to the results of the 2020 presidential election. In reality, Joe Biden received 51.3% of the popular vote to Donald Trump’s 46.8%. Biden won the electoral college. But the protestors did not believe in reality.
They believed the lie, endlessly repeated by Donald Trump, that the election had been stolen. That lie, and the pervasive digital ecosystem that spread it across American’s sources of information, is still firmly embedded. And it’s not a fringe belief.
According to a Washington Post-University of Maryland poll conducted last December, so December of 2023, 36% of U.S adults said that they believe the 2020 presidential election was not legitimate. 36%. That is a 7% increase from similar polling done two years ago, in December 2021.
This election year, with President Biden and Donald Trump poised to face off again, disinformation’s power hasn’t diminished in the least. Here’s Trump on the campaign trail.
DONALD TRUMP: If this election isn’t won, I’m not sure that you’ll ever have another election in this country.
CHAKRABARTI: Former U.S. attorney Barbara McQuade says that disinformation is sabotaging American democracy, even our sense of ourselves. And it’s become one of the biggest threats to U.S. national security.
That’s the focus of her new book, it’s called Attack from Within: How Disinformation Is Sabotaging America. Barbara McQuade is also a law professor at the University of Michigan—Ann Arbor, where she joins us today. Barbara McQuade, welcome back to On Point.
BARBARA McQUADE: Thanks very much, Meghna. Great to be with you.
CHAKRABARTI: I’d actually first like to hear your impressions of what we just heard. About the fact that there’s been, at least according to one set of polling, a 7% rise in the number of Americans who say they believe the 2020 election was stolen.
McQUADE: It’s really shocking. I think when you consider that there’s absolutely no evidence to support that claim.
In fact, there is evidence to refute that claim. 61 lawsuits. Endless audits, all concluding that the election was fair, accurate, and the most secure in U.S. history. And yet, we have this growing number of people believing the lie that the election was stolen. And I think one of the things that explains that is some of the tactics that I describe in my book, these are some of the same tactics used by authoritarians throughout history.
And now, it is ramped up because we have the ability through social media to amplify these claims, reach millions of people, and bombard them with the claims over and over again. And so I think it is that repetition, which is one of the techniques that Hitler talked about in Mein Kampf, that causes people to believe something the more they hear it, and they start hearing it from a lot of different sources.
Inside their own echo chambers, that they begin to believe that it’s true. And it’s really disturbing when you think about the influence that it could have on the next election.
CHAKRABARTI: By the way, I was really taken with the dedication that you put in the front of the book, and I just want to read it here for a second.
You said, “To all of the brave American heroes who have given their lives to defend democracy from fascism, a trip to Normandy where more than 9,000 American service members are buried, left me in awe of their courage and selflessness. We owe them and other American patriots our vigilance so that their sacrifices will not have been in vain.”
Why are you dedicating the book to them?
McQUADE: Yeah, I had the opportunity to visit Normandy a couple of years ago, and anybody who’s ever been there, I know, must feel that moving sense of awe to see all of those white crosses and stars of David representing the 9,000 young people who gave their lives for our democracy, and they’re all, young, 19, 20 years old.
And then you think about the crass, lying power grabs that we’re seeing today. It’s really disgusting. And it is an insult to people who sacrifice their lives for democracy. To simply lie and try to steal the power of the people through lies to advance a party’s power or an individual’s power.
CHAKRABARTI: Is that what you think is at stake right now in this country?
McQUADE: I do. I think democracy is at stake. We have, for the history of our country, the people have had the power to elect our leaders. And although there certainly have been throughout our history, propaganda and spin and other kinds of things, what we’re seeing now are outright lies designed to fool the American people.
And in addition to those who genuinely believe that an election was stolen, and that the only way to achieve an election is by any means necessary, I think there are also many people who know better. And are willing to traffic in these lies to advance their own agendas. When Donald Trump is now referring to the January 6th defendants as hostages, to suggest that they’re political prisoners in some way who are standing up for American democracy, and now we have other members of Congress, Elise Stefanik, the Congresswoman from New York, repeating that phrase, calling them hostages.
I’m certain she knows better. But she is saying these things because she believes it will advance her own political agenda, I believe. And so it is something that I think threatens the very way we choose our leaders and our policies in this country, which is through information. And making our own decisions about the votes we want to cast.
CHAKRABARTI: Now a little bit later in the show, I want to dive into the details that you write about in your book. About why you think this country is particularly vulnerable to disinformation, how it works in the United States and those other aspects of the information ecosystem we’re living in now.
But let me lean on your firsthand experience, Barbara, as a U.S. attorney who’s worked a lot of national security cases. Make the case to us right now about why you think disinformation could be one of the biggest threats to U.S. national security.
McQUADE: Yeah. So I spent most of my career as a national security prosecutor and certainly the threats that I started with were Al Qaeda and ISIS.
And now we see an evolution. I teach national security law at Michigan Law School and one of the things that I have been teaching my students since around 2018 was Russian disinformation in the Mueller report and the way that social media was used to influence the 2016 election.
But now we see these same information techniques being used by people within the United States. And that’s why, the name of the book is Attack from Within. It’s coming from inside our own country, by our own Americans. But I think it is a challenge to national security, because it is fueling political violence.
The people who attacked the Capitol on January 6th, more than 1,000 charged with crimes, believed they were doing something righteous. They believed they were patriots. It’s the people who plotted to kidnap Michigan Governor Gretchen Whitmer, thought they were going to plan a citizen’s arrest because they believed she was violating due process.
The man who broke into Nancy Pelosi’s home with a hammer and attacked her husband, all these people believe they are doing good, because they have been so convinced that their cause is righteous and that they have not just license to do whatever they want to do, but they have a justification.
In seeking to write what they perceive to be wrongs. In this country, we use the rule of law to decide our disputes. We all have different viewpoints. We have disagreements about all kinds of things, but we agree at the end of the day that the courts will decide our disputes. And instead, what we are seeing is fueling of anger through disinformation that is sparking people to take the law into their own hands.
And I believe that can lead to anarchy and lawlessness. And we may not know who or where or when or why somebody takes the bait. But when somebody talks about a bloodbath or hostages or even accuses the FBI of planting evidence at their home as Donald Trump did. It’s not surprising when someone takes the bait.
There was a man in Cincinnati the next day who breached the FBI office there with an assault weapon. He was chased away and later died in a standoff with police. So these kinds of episodes, the threats, the swatting of public officials that is causing good people to leave office or not seek public office, I think is really harmful to our democracy.
And unless we recommit ourselves to truth, I worry that this trend will continue.
CHAKRABARTI: Now, correct me if I’m wrong, but did, Barbara, did you say that some of the tactics that you saw used by Al Qaeda and the like are ringing, there’s echoes of that today? Did I mishear that?
McQUADE: What I said is I’ve seen the threat evolve from Al Qaeda and ISIS.
CHAKRABARTI: Evolve, okay.
McQUADE: but I will mention that the tactics of ISIS are things that we’re seeing today.
ISIS had this view that they wanted an Islamic state and that the ends justified the means and that they were willing to kill to achieve their ends. There was a powerful speaker who was part of that group. In fact, he was part of Al Qaeda in the Arabian Peninsula. Anwar al-Awlaki would radicalize people online by preaching sermons that spoke to people and got them excited and agitated and determined to believe that their cause was righteous, and they were told to commit murder wherever you are.
You don’t need to travel anywhere else. You can use a vehicle, you can use a gun, you can use a knife or a sword and kill as many people as you can in the name of our cause. And I think that’s the same thing that we are seeing now with those who are pushing the idea of Christian nationalism or the idea that immigrants are invading our country.
We’ve seen attacks motivated by this idea of the global replacement of the white Christian population. That motivated the mass shooting in Buffalo and mass shooting in El Paso, Texas, and at the tree of life synagogue in Pittsburgh. All of these things are people who are perhaps a bit unhinged, but they hear these claims, and they rise to the occasion to take the bait of the lies they are being fed.
Part II
CHAKRABARTI: Barbara, it will come as no surprise to you that we’ve done a lot of shows on disinformation and its destructive power on this program here. So that’s why I wanted to pick out some of the new things in your book that we hadn’t actually discussed before.
And you go into detail in the book about why it works so well on just about any human being, that there’s something fundamental about, almost biologically, for us as humans, about why, that makes disinformation so effective. Can you talk to me about that a little bit?
McQUADE: Yeah, I think that those who peddle disinformation understand some things about how the human mind works.
And I have a chapter in the book on some of these cognitive forces. about the way our brains are wired, and there are a few of them that people are willing to exploit. So one of them is our willingness to believe in conspiracy theories. We are wired to recognize patterns so that we don’t have to relearn everything about a situation every time we encounter it.
It’s actually one of the things that drives implicit bias, that we’ve made conclusions about things before we actually enter a situation. But, if you see dark clouds gathering in the sky, you might draw the conclusion that, “Oh, I’ve seen that pattern before. That means a storm is coming and I better take action to protect myself from the storm.”
And so in the same way, we are inclined to believe that things don’t just happen randomly, that things happen for a reason and that there’s some story to connect all of it, behind it. And so that’s what makes us very susceptible to a good conspiracy theory, so people know that and pray upon it.
CHAKRABARTI: So Barbara, are you saying that I shouldn’t hate myself for following every post about Kate-gate breathlessly?
McQUADE: It’s okay. We’re just wired that way, Meghna. It’s just the way we are.
CHAKRABARTI: I didn’t mean to make light of it, but that’s actually what came to mind, that whatever the conspiracy theory might be, there’s some, there’s at least one that’s going to hit everybody differently.
There’s a lot of conspiracy theories that I just roll my eyes at and can’t take seriously, but there’s something about this one where it just grabbed me from the start in an almost unconscious way. And I think that’s what you’re talking about. There’s something.
McQUADE: Yeah.
CHAKRABARTI: Yeah. Yeah. Go ahead.
McQUADE: That’s what they want you to think right now.
CHAKRABARTI: (LAUGHS) Oh, God. Okay.
McQUADE: We’re just wired that way. Another one is fear. We all have fear. And people prey on our fear. Fear that we’re going to lose what we have. We’re going to lose our status. We’re going to lose our money. We’re going to lose the future that we had always thought was going to be available to us.
We’re going to lose the American dream. And so that’s why people talk about a declining society. Everything’s so bad. There are these other bad people who want to take what’s yours. And it’s what allows people, manipulators, to pit us against other people. They demonize and scapegoat others so that our fear can be directed at someone else.
And when we divide that way, it allows a leader to come in and exploit those differences and say, “Stick with me and I’ll take care of you against those other bad people.” So fear.
CHAKRABARTI: Wait, Barbara, let me just jump in here because with each one of these that you say … you’ve written quite in depth about each one of these factors about our fundamental humanness. But about the fear thing, you point out that obviously this has happened before, multiple times in U.S. history. But what was really interesting to me is you quote scholarship from Doris Kearns Goodwin about different choices that American leaders have made in the past when the country was at this moment of peak fear. And this is what gets back to the choices that our leaders are making today.
Cause I really appreciated you highlighting the story of President Theodore Roosevelt. And the kinds of language and visions that he put out for America at a similar time of fear. Can you tell us about that?
McQUADE: Yes. I’m an avid fan of Doris Kearns Goodwin and have read many of her books.
And this one comes from her book, Leadership During Tumultuous Times, where she talks about some presidents. And she draws parallels between today’s society and all of the rapid pace of change that we’re experiencing today that can be very unsettling to people, naturally. With the turn of the 20th century, when we faced similar rapid pace of change, we were moving from an agrarian society to an industrial society.
We had a new wave of immigrants coming from Europe. We now had newspapers that covered international headlines and that could allow us to see frightening news stories about wars and famines and other things occurring all over the world. And so it was a time when people might have become very frightened and divided.
And instead of choosing to prey on fear and divide people, Theodore Roosevelt did just the opposite. He used it as a moment of opportunity and optimism and said, look at all of these great potentials we have here to change our society and to advance human progress. We can do things like bust up trusts and make sure that we have eliminate monopoly power so that the people have power.
We can figure that out and do that. We can use child labor laws to stop exploiting children and using them in the labor force. We can figure this out and protect children. We can go into slum communities and slumlords. And get rid of that and raise the standard of living for everybody. And he used his bully pulpit to convince people that this was the best time there’d ever been in the history of America.
And sure, we’ve got challenges and new things to think about, but we can make the world a better place. And instead, what we see today is a leader like Donald Trump coming in and telling us that our country is going down the drain, he has said. And talking about American carnage, this idea of declinism is one that was used by Hitler and Mussolini and others to cause people to be so fearful that they will agree that by any means necessary, let’s do whatever it is we need to do to get ourselves out of this frightening place.
CHAKRABARTI: But of course, Theodore Roosevelt didn’t have to deal with social media, right?
McQUADE: (LAUGHS)
CHAKRABARTI: It does make me wonder. This is a ridiculous question, but would he, what would he have done? Because no matter how optimistic President Biden tries to be. Like he’s never bet against America, we can do this, the Inflation Reduction Act, all of those things, he is endlessly outpaced by the light speed with which other forms of information are transmitted directly to Americans.
McQUADE: Yes, and certainly social media is a real challenge. Yeah, if Theodore Roosevelt had social media, I don’t know, what would you be like? @TRex? Something like that?
CHAKRABARTI: @Bigstick? I don’t know.
McQUADE: Yeah, there you go. That’s a good one.
CHAKRABARTI: But do you see what I mean? This is where I always look to history for examples on what to do, but I think, and this is what your book is about.
The times we’re living in now are so qualitatively different than when great leaders like Roosevelt were alive that I feel like the lessons only go so far. That was all I was saying.
McQUADE: Yeah, no, I think it’s a good point, but I will also say that we have seen these kinds of disruptions before.
When radio came along, that was a forum that Hitler was able to use. When television came along and we were suddenly able to see the ravages of war, that changed hearts and minds. And so now we have this new disruptor of social media, and I think we need to figure out as a society how we’re going to use this thing.
And it’s still really very much in its infancy. And I think only now are we recognizing its power, and it’s potential as a weapon. It has grown unregulated. The Communications Decency Act of 1996 gives social media platforms immunity from legal liability. And I think we have to reconsider the way we use social media to help cap some of its abilities to spread disinformation, whether it’s through algorithms or eliminating anonymous users or eliminating bots, which can make messages look exponentially more popular than they really are.
But no doubt someone like Donald Trump has a megaphone now where he can reach people repeatedly, all hours of the day and night, and in one instant reach millions of people. And there’s also the old phrase that a lie flies around the world while the truth is still putting its boots on.
A good lie is juicy. We like it. It feeds right into those conspiracy theories that we all love. And so it can make things very challenging. I also think that some members of the far right have been a little more clever with their repetitive phrases. And that is another one of the things that Hitler talked about in Mein Kampf. Is when you can have easy narratives with simple repeatable lines, that becomes very persuasive.
In the same way you think about marketing, right? ‘Got milk’ or ‘Just do it.’ These simple phrases are very, ‘Where’s the beef?’ become as simple and crude as they are very effective. Because they’re easily repeated, and they catch on.
CHAKRABARTI: Yeah.
McQUADE: And so I think in the same way we’ve heard from Donald Trump, “Stop the steal, Drain the swamp. Lock her up.” These simple phrases that he chants at his rallies.
CHAKRABARTI: You know what, one of these days I want us to do a show on the linguistic power of these phrases, because you’re exactly right. And by the way, we know that these weren’t just brilliant, off the cuff moments from Trump when he just makes up these phrases. Because especially for ‘Drain the swamp,’ that has been widely reported as it was very aggressively audience tested by the Trump campaign.
And they found the one that stuck and then he started saying it endlessly on the campaign trail So, Barbara, this is so fascinating to me. Because I completely hear you and see the irrefutability of the facts that human beings are pattern seeking organisms, that fear is a major driver of our behaviors. I appreciated how you wrote about we’re also just stubborn as a species and these things serve to amplify confirmation bias. And that all of these things make us as a species vulnerable to disinformation and its impacts on what we believe and how we behave.
But then this gets me to what you write about deeply also about the United States in particular. Because we’re all people everywhere around the world, but there’s things about this country and how it’s set up that you also say make us particularly vulnerable to disinformation. I’d love to hear you talk about that.
CHAKRABARTI: Yes. There are those who recognize our freedoms and our open society and are using those things to exploit us. For example, in this country, we all revere our First Amendment right to free speech. And that’s true whether you’re on the left or the right or anywhere in between. And there’s a reason for that.
Free speech is what allows us to speak out against our government when we see something that we disagree with, or we see something that’s wrong, or we want to advocate for something different and better. So it’s a cherished right for everybody. But I think it makes the word censorship a powerful weapon. Because anything that in any way tries to regulate speech can be labeled censorship, and everyone immediately backs down from it.
The Biden administration had set up a disinformation agency run by Nina Jankiewicz, who is a disinformation scholar, and immediately the far right started calling it the censorship Bureau, a censorship board. And so they closed it up. They closed up shop.
CHAKRABARTI: That was a failure of the Biden administration.
I will say just because some critics are saying it’s a censorship board. I think the Biden administration, cowardly, it was a cowardly act for them to shut it down. So do I blame the people for criticizing the administration? No, I actually hang the blame right on the Biden administration for that.
McQUADE: Sure. But they didn’t want to take the political hit. Because the word censorship is so loaded that they didn’t want to even be accused of engaging in censorship. Right now, there is a case argued before the Supreme Court the other day. I don’t think the justices are going to have any of it.
Based on their questioning, a lawsuit filed suggesting that when the Biden administration merely goes to social media companies and flags for them false claims about quack COVID remedies that are life threatening and says, “Hey, you might want to take that down. That’s dangerous to public safety and human life.”
That is a violation of the First Amendment rights of the people who are making up these false claims about COVID remedies.
CHAKRABARTI: I want to talk to you about that case … in the next segment, we’re going to talk about that case because I think it does bring up some of the more challenging aspects of how to battle against disinformation.
But Barbara, now you got me going on the Biden administration, because your whole book really makes this persuasive case about the threat to our national security, the threat to our democracy, about not just disinformation, but disinformation coming from within. And I am still inspired by you pointing out Theodore Roosevelt and Doris Kearns Goodwin’s scholarship on this, because this is a time where I would say leaders that believe in a collective reality and absolutely believe that our truth is at stake and therefore so is our democracy.
And, if they happen to occupy the most powerful office in the land, it’s time to show some strength and say, yeah, you’re calling this censorship, but that is not what it is. And we’re going to stand up for the fact that the government has to battle against disinformation. We’re going to keep this office open.
Without that kind of resolute steel in the spine of political leaders, how can we ever hope to effectively fight against the very disintegrating effects of disinformation on our democracy?
McQUADE: Yeah. I think we need to do things like you and I are doing right now. And as I advocate for in my book, that people need to recommit themselves to this idea of truth.
And I’m hoping that my book will help people to identify these techniques and tactics that are used to cause people to misunderstand how our first amendment really works. I don’t want to, I agree with you. It’d be great if this disinformation board still existed, but I don’t want to blame the Biden administration here for something that is being very much driven by Donald Trump and his faction of our politics.
The need to even have a Disinformation Bureau is caused by the fact that there are people out there who are driving these lies. And in fact, the way our first amendment works, of course, is like all rights, it is not absolute. There are laws that are passed that do limit our First Amendment rights of free speech.
It is a crime, for example, to communicate a threat. Because there is a compelling governmental interest in avoiding threats, and the law is narrowly tailored to achieve that result. In the same way, it’s a crime to offer a fraudulent deal or it is a crime to speak to reach a conspiracy. All of those involve speech and yet there are limitations on them. Because the law says that there’s a compelling governmental interest and we want to remove those things.
And so in the same way we can focus on speech. We can have a few things that limit our speech, like talking to social media companies and asking them, suggesting that they enforce their own community standards and flag things that are dangerous to human life. That’s perfectly permissible. Or regulating social media to regulate their algorithms.
So they can’t do what the Facebook whistleblower, Francis Haugen, disclosed Facebook was doing, which was deliberately pushing content designed to generate outrage. And so this idea that the first amendment is absolute is taking advantage of the fact that we do revere free speech in this country, and using disinformation to suggest that the right is absolute and that any effort to rein in disinformation is a violation of those First Amendment rights.
Part III
CHAKRABARTI: Barbara, you’re going to have to forgive me because one of the things I love most about doing this show and these live conversations is you never really know where they’re going to go. So I want to get to solutions in just a second.
But there is one thing that you had said in the previous segment that I think deserves some follow up. First of all, I completely agree with you about the pressure the Biden administration was under regarding its disinformation board.
And in fact, Nina Jankowicz, who was supposed to head that board, we have spoken with her on this show many times, and one of the times was not long after the administration shut down that disinformation board, and she made it clear that one of the reasons was she was, speaking of threats that you mentioned earlier, Barbara, she was receiving direct threats, which were definitely a danger to her safety, her being and her family. So it wasn’t just like people screaming on social media.
There was adequate concern that her life could be in danger, and I don’t want to dismiss that. I want to repeat that. That, in and of itself, it makes sense that anyone would step back from that. At the same time, you’re exactly right when we don’t necessarily want to blame the Biden administration for all the disinformation in our information ecosystem now. But simultaneously, and I respectfully say this, no one expects Donald Trump to step back from the disinformation carnival that he’s been powering around the United States for the past many years, that’s just not going to happen.
No one expects all the foreign actors who are using disinformation to influence American thought. They’re not going to step back from it either. All that’s left for us who care deeply about a functioning American democracy is to expect more of the people in power who do want to protect democracy.
And I just wanted to offer that to you as the reason why I do look to the Biden administration to try to do more. They have all the power right now in terms of proposing new legislation or cases that they want to bring to court, et cetera. So I wanted to hear what you thought about that is it not fair to expect more from people like, like you and me, like you said, like the Biden administration, even people at the state level who have a place in our society.
To do more, to say more about protecting democracy.
McQUADE: Yeah, I’d like to see some of this come from Congress in terms of initiating legislation.
CHAKRABARTI: Congress, yes.
McQUADE: Where Joe Biden is, I think, vulnerable is the fact that Donald Trump is also his political rival. And so anything that he offers in an effort to neutralize Donald Trump’s disinformation, I think it’s spun as disinformation, as solely a political effort to neutralize his political opponent.
And so it makes it very politically fraught for him as a direct opponent of Donald Trump. But sure, I think everybody in leadership should be working against this threat. Because it is so great. I think it is something that our justice department should be working on. I think it’s people at the federal, state, and local levels should be working on, because it is so corrosive to our society.
I’d love to see Congress offering bills designed to regulate social media. There are some bills in Congress that have failed to get support from the Republicans. Because perhaps they believe it’s in their own political best interest not to regulate social media or campaign finance. But I think those are some things that we need to do to try to turn down the temperature and some of the harms of disinformation.
CHAKRABARTI: Let’s talk about how challenging that can be. Finding ways to use the rule of law to diffuse disinformation’s power. Because again, leaning on your experience as a U.S. attorney, as a national security expert, you mentioned the case that the Supreme Court just heard in oral argument this week.
Murthy, Surgeon General, v. Missouri. And broadly speaking, that case is asking how far can the government go to combat disinformation online, to request social media platforms, to re-evaluate posts that are going on online, to re-evaluate their community standards, etc. So I just want to play a little bit of what was heard in oral argument.
These are two different moments, but you’re going to hear Justices Samuel Alito and Elena Kagan.
ALITO: It’s treating Facebook and these other platforms like they’re subordinates. Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?
KAGAN: Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.
ALITO: (LAUGHS)
KAGAN: This happens literally every thousands of times a day in the federal government.
CHAKRABARTI: Again, Justices Elena Kagan and Samuel Alito speaking at two different, excuse me, two different moments in oral argument.
So Barbara, here’s why I think these two are interesting, because they bring up the challenges, the considerable gray area because of our cherished First Amendment that comes with battling disinformation. So first of all, when Justice Alito says, are you suggesting that we treat Facebook or any other sort of mainstream legacy media like a subordinate of the federal government?
The First Amendment is supposed to create that big divide so that the government can’t do that. How do you see that?
McQUADE: Yeah, I think the real challenge here is whether there is coercion between these government requests and what is being heard by the social media companies.
So for example, I think it would be illegal to say, unless you take down these posts, we are going to remove funding, or we’re going to initiate some legal action against you. I think if there is a legal consequence, then that would be a violation of their first amendment rights, to post what they want to post.
On the other hand, I think if they said something at the far other end of the extreme, which is to say, Hey, I know your content moderation prohibits risks to public safety, just wanted to flag for you this quack COVID remedy that says if you drink chlorine. You can be cured.
That’s very dangerous. And if anybody were to do that, they might die. I think the social media companies are like, “Oh my gosh, thanks for the heads up. We’ll take it down immediately.” Those are two very different things. And I think the reality is we’re somewhere in the middle. That there is, they call it jaw boning, where they are talking to them, suggesting they should take things down, because it’s violating.
So I think the question really is how coercive can they be? Should they be? Are they being? And where should that line be drawn? But to Elena Kagan’s point, and to Justice Alito’s point I should refer to them both equivalently. Justice Kagan’s point, Justice Alito’s point. Yes, the government does talk to the New York Times and the Wall Street Journal like that.
As she said thousands of times a day, but what they don’t say is, you must take it down. I can remember times in my own work as the U.S. Attorney for the Eastern District of Michigan, when newspaper outlets were going to publish something that could be very dangerous to human life or jeopardize an investigation.
And what we would say to them is, we can’t tell you what to do. You have your own rights under the First Amendment to publish whatever it is you want to publish. But may we just suggest to you that if you publish this, it could cause a problem in an ongoing investigation. If you would simply delay publishing that, or if you would consider, we would appreciate it.
And then they would make their own choice, and I think if it’s that, that should be fine and consistent with the First Amendment. But as long as they’re not telling them what to do. And so I think the real issue here though, Meghna, is that social media platforms, we aren’t quite sure how to categorize them.
And in some ways, they want to have it both ways. Because on the one hand, in this case, they say, just like a newspaper publisher, we want to have editorial control and be able to decide what we do and don’t post online. That’s their view. But then for purposes of the Communications Decency Act, Section 230. They say, “Oh, we’re not publishers and we can’t be liable for anything that’s published on our platforms.
We’re just the utility. We’re just providing the space. We don’t make decisions about what’s there or not, that’s individual users.” So I think at some point we’re going to have to make a decision about are they publishers or not publishers? And if so, do we treat them the same way as traditional media or do they have different rights and responsibilities because of their different nature?
CHAKRABARTI: Yeah. By the way for listeners who are like, Section 230, what’s that? Go to Onpointradio.org because we’ve done like a ton of shows about the status of tech companies and communications and just look for Section 230. And we’ve got plenty of shows to give you primers, or actually people keep correcting me, primers there.
But so Barbara, actually, I have to say, I see this a little bit differently. Because Justice Kagan there, first of all, it was one of those moments where I think it was like, oh, people get to look through the keyhole and see how government really works. She was candid there in saying it happens thousands of times a day, when different aspects of government, in her words, quote, encourage press to suppress their own speech.
But to your point, it’s a choice. However, even with the examples you gave, it seems to me that many of those times are when there is a direct risk to national security. Like you said, there’s a direct risk to jeopardizing an ongoing investigation, there’s perhaps a direct risk to servicemen and women abroad.
Those kinds of things. What we had in COVID was, outright quackery, right? Drink bleach, use UV light, right? We had outright medical quackery saying if you get the COVID shot that you’re going to be able to be tracked. Or you can magnetize a key onto your chest.
But the argument is that like somehow those things were jeopardizing the Biden administration’s efforts to control the pandemic, but within those, that realm of things, were also actually just scientists who disagreed with the Biden administration’s tactics, lockdowns, et cetera.
There was nothing wrong with their science. They just simply came to a differing conclusion. The NIH called them fringe scientists. Science always has fringes on and sometimes that’s where the greatest discoveries are made. This is why I think this case is so interesting, because it gets to the heart of, if we’re going to battle disinformation, we have to be able to collectively define it first.
And isn’t that an extreme challenge?
McQUADE: It is. But I don’t want us to take the position that there’s no such thing as truth or facts. Because that’s a really dangerous road to go down as well. That is the situation we see now in Russia. I cite the work of a researcher there named Peter Pomerantsev who talks about in Russia, they have completely destroyed the concept of truth.
And the government will deliberately spout inconsistent claims simply to confuse the public. And they call it the fog of unknowability, where people have come to believe everything is PR and spin and there’s no such thing as objective facts. And so it causes members of the public to become cynical and then numb. And then so disgusted they finally become exhausted and disengaged from public life altogether and say, “I’m not going to worry about politics.
I can’t make any difference. I can’t make any sense of what’s going on.” And so I think when there are objective facts there is such a thing as a knowable fact. And I think we shouldn’t disregard that. But I agree, drawing the lines in these cases can be difficult. Because sometimes we’re talking about opinion or an approach to a medical problem or a public safety problem.
And if it’s simply an approach that’s different, but there are some things that are fact based that are dangerous to human life. And I don’t think that we should cede all acknowledgement of truth versus fiction just because it’s too hard to draw the line.
CHAKRABARTI: We’re rounding towards the last few minutes of the conversation, Barbara. I would love to hear more about, given your experience inside government, within the law and the research that you did for this book, you have a couple of chapters of what can we do about it? So what are a couple of your other proposed solutions that we haven’t already potentially touched on in this show?
McQUADE: Yeah. So I think there are a few things that can be done. One is I think we need some meaningful regulation of social media. It’s been an incredible explosion of technology to have social media, especially those based in the United States, these tech companies, but they’ve allowed, they’ve been allowed to grow unregulated since the 1990s.
And now that we have seen the harms of it, I think in retrospect, we ought to have some controls. So one of them is to control these algorithms. The idea that they have computer programs, computer code. This is not speech. This is a process. And so I think without running afoul of the first amendment, we could regulate the processes that social media companies are allowed to use.
Some of these that manipulate us, that push us toward this content designed to engender outrage, I think, is certainly something that we could prohibit, or at least require disclosure, so people know when they are being manipulated.
CHAKRABARTI: Barbara, if we had a court case that decided that money was speech, I guarantee you, if it hasn’t already happened, it will sometime soon, that someone’s going to bring a case that says algorithms are speech.
McQUADE: And so be it. We can litigate that issue and see where we result. But at the very least, we can require disclosure of the algorithms, even if algorithms themselves can’t be prohibited. How about this? To regulate the collection of our private data. Our private data is scraped from these social media platforms and sold to people who then build portfolios about us, for advertising purposes or political purposes.
That is our information. We could prohibit social media companies from scraping and then monetizing our personal information. So I think that’s another way. Because when we are so micro targeted, that’s when people can really manipulate us. They know what pushes our buttons and they can target an add directly to us based on our demographics and our preferences designed to mislead and manipulate us.
So that’s another. I also think, Meghna, aside from social media, one of the things that is challenging for us in this political moment is the consequences of the Citizens United case that the Supreme Court decided in 2010. That said that corporations and other organizations cannot be limited in the money they spend on campaigns. Because money is speech, as you just said. But we could require disclosure of who is behind ads. Because the Citizens United case opened the door to all sorts of dark money and manipulations.
You might see an ad on social media that says it’s brought to you by the red, white and blue grandmothers of America, and it’s telling you why you ought to own a gun. It turns out it’s not The United Grandmothers of America, but instead it’s some special interest that works in the gun lobby.
And so I think that disclosure in politics can solve a lot of the problems that are created by the dark money that currently exists. So those are some of the legislative things. I also think that we could really do a service to our public by imposing in our school curriculums critical thinking skills, media literacy and civics education so that we the people cannot be so easily manipulated by these tactics.
This program aired on March 22, 2024.
Jonathan Chang Producer/Director, On Point
Jonathan is a producer/director at On Point.
More…
Meghna Chakrabarti Host, On Point
Meghna Chakrabarti is the host of On Point.
More…
Advertisement
