First Amendment 3.0:

Re-Thinking Free & Trusted Speech in A Digital Era

©John H. Clippinger


For two hundred and twenty-six years the First Amendment has been the pivotal constitutional instrument for protecting free speech in American Democracy, and by extension, much of Western Democracy. It offered a vision of a free society in which free speech was restricted only on rare circumstances; free speech was the default ,and restricted speech, the exception. Imperfectly applied, and not without its setbacks, The First Amendment was, nonetheless, a staunch bulwark of key democratic freedoms. Those freedoms are now very much in jeopardy, not just from their normal adversaries, but from the ascendency of digital technologies, and social media in particular.

Two key provisions of The First Amendment, “free speech” and a “free press” are notable artifacts of 18th Century society when the printing press was the consummate “disruptive technology.” By virtue of its accessibility and affordability, the printing press did not require significant capital nor the central approval of the government or the church. It gave voice to whomever owned and operated the press. In many respects, it was a primitive precursor of the Internet. Ideally, it was an instrument of free expression and amplification, where every citizen had the potential to have their opinions read, regardless of their means or rank. It did not require funds from the State nor the Church and could fund itself through subscriptions and advertising. Hence, freedom of speech and freedom of commerce were inextricably linked to one another. That view has been codified as one of the inviolate dogmas of American democracy, “ There can be no free speech without free markets. “ When not bound to either the authority of the State or the Church, the “Press” were “free” to be their own authority, a “Fourth Estate”, beholden to no one, so long as they were “economically free” and “self-funding”.

That has been the prevailing “origin myth” for American democracy since its inception, and while inspiring, it is misleading. Guarantees for a free and democratic society do not reside with the printing press, nor any communications technology for that matter; nor with free,” “competitive market” ownership of the press nor even with the unrestricted expression and sale of forms of speech. Free speech is less contingent upon freedom of choice or access than upon public trust in the institutions and organizations for originating, publishing, and communicating “speech”. American newspapers, for the most part, have not been under any centralized restrictions limiting content, authorship nor ownership. Ostensibly, a newspaper publisher does not require permission nor a license to print their “paper”. Yet in practice, the Press, or any of the “news media”, are not wholly free, as they are subject to market forces, technological disruption, and regulatory capture. Moreover, as economic institutions, they must provide an investment grade return to their owners. Hence, it can be argued that the Press is foremost an economic institution, and secondarily, an “independent Fourth Estate”.

Media Are A Different Kind of Goods

Print and media properties are goods and services unlike any other; they have special powers. They can shape cultural tastes, market behaviors, and political and social outcomes. Unlike other properties, they have an inherent power, status, and appeal far beyond their investment returns. Hence, there are “meta-market” incentives to consolidate ownership of media properties to effect cultural and political objectives. William Randolph Hearst was foremost among his peers of 20th century newspaper barons to appreciate this, as is Rupert Murdoch and his family today in their control of broadcast and print media for the 21st Century. Both men and their families co-opted the “Fourth Estate” and “free speech” to shape cultural tastes and values to shape their own political agenda. Fox News has become the single most powerful news organization in the U.S, swaying elections, public tastes, and supplanting all the U.S intelligence agencies as the authoritative source for news for the current President and White House staff.

Social Media are a New Kind of News Media

While global social media such as Facebook, Twitter and Google try to reconcile their economic interests with the free speech obligations, they are first and foremost economic entities, that justify their market cap from their sale of access to people’s personal information. Going forward, it is an open question how major social media platforms will be able to resolve their economic imperatives with their “Fourth Estate” obligations. They are vulnerable to a form of invasion by “digital parasites” that invent media events, facts, and commentary to generate revenue. Ideologically driven news organizations, like Brietbart News Network, have been able to exert an influence disproportionate to their size or economic value through such exploits for which there are no effective antidotes. They have been able to turn social media into a weapon of propaganda, with a total disregard for journalistic or Fourth Estate norms, and to advance fringe ideological and economic interests with impunity at minimal cost. In one fell swoop, a fringe media organization, which unabashedly and deliberately invents and misrepresent news and facts has become a new “trusted authority” an “alternative” Fourth Estate by parroting Presidential claims rather than testing and challenging them, and thereby, achieving a standing equivalent to The New York Times, The Washington Post and other traditionally venerated news organizations.

Alternative facts and fake news are not new to digital media. The Press and news media have always been subject to manipulation as they must make competitive economic returns, and in the end, their product is not “factual” news and unbiased reporting, but sufficiently appealing, and entertaining content that generates advertising revenue. When news rooms generate readership, advertising, and viewership, they grow; when they don’t, they contract. Combine that financial reality with the inherent temptation of news media to shape political and cultural outcomes, even the best of news organizations cannot be relied upon to be “unbiased” nor immune to sensationalism nor manufactured news cycles. Yet digital media are different from print, broadcast and cable media, because the barriers to entry are so low and the ability to emulate “real media” so effortless and costless. False news stories can be instantaneously fabricated and distributed and commented upon by bots and other. Moreover, the identities of the fabricators are so easy to conceal and so difficult and costly to unmask and discipline so that the economic incentives, perversely for generating viral, rogue, sensationalized, - conspiratorial and outrageous - content completely overwhelms those for authoring, and belaboring thoughtful, sober and sound content. The very thing that makes digital media and social media, in particular, so powerful, is that it is so “free” and “permissionless". Yet, this the very trait, which early in its life seemed to promise greater democratic freedoms, the very hallmark of Internet Freedom, is what has made social media so nefarious and destructive to democratic discourse. There is something in anonymity and a lack of accountability that brings our the “troll” in the faceless crowd and there is something in economics of “clickbait” that encourages deception and exploitation as a kind of business practice.

Gold Standard of Trust and Verification: The Scientific Method

In the face of this onslaught by digital media, the First Amendment has proven to be a blunt if not ineffectual instrument. What is needed is not more freedom but greater trust. That is a publicly verifiable and independent means for proving a particular item of “news” is what it purports to be; that it is authentic, and adhere to explicit, verifiable principles as to evidence and argument.

The Scientific Method is the gold standard for organized inquiry, evidence gathering, hypothesis testing, validation, replication, and self correction. It has benefited humanity as much or more that another form of fact finding, reasoning and evidence verification, the Rule of Law. When Scientific Methods can be combined with technological innovations to provide coherent and testable ways of collecting and verifying data or “facts” and these can be used to generate testable and replicable rules (algorithms), then there is a prospect at least for accumulating a testable body of knowledge and practice that can be used to create trusted news and media. Recent advances in encryption and algorithmic technologies make it feasible to design “tamper proof” authorities and modes of testing, verification and auditing that are accountable to independent evidence and verifiable facts.

This is not offered as a simple panacea, however, as scientific institutions and organizations, themselves, can and have become “captured” by their own institutional and narrow self interests over and over again. But scientific practice has developed a proven track record of discovery, invention, and self-correction, unmatched by any other kind of institution, Church or State. With a new generation of technologies for testing, verifying, and auditing the veracity of claims, it may offer a way of making the “Press” trusted, credible, accountable, and throughly independent.

Part B: Open and Trusted Conversations Two Way Communications;

Democratic speech is not simply the written or spoken word, but a particular practice of open, diverse, awkward, unpleasant and critical communications among respectful equals. It is not enough for such “speech” to be “free” or technically “unrestricted”, as it must be heard, understood, trusted, civil, and open to challenge and critique.. Short of that standard, democratic speech can become “hijacked”, “captured”, “spun”, “spoofed”, censored, and “weaponized”. Facts cease to be facts but arbitrary assertions in the service of unknown and unaccountable fabricators and conspiracy theorists.

Hence, democratic speech is not a product but a process. It is a relationship over time with a “news” organization and its audience. Through the authenticity of processes, sources and claims, and the open exchange and correction of ideas, opinions, claims and facts, democratic trust and openness are preserved. From this perspective, “democratic speech” is not just a right nor asymmetrical relationship, but rather a reciprocal obligation among institutions and individuals. All parties have mutual obligations to one another to protect and participate in open, civil, questioned, and trusted speech. Contrary to some notions of government, a free press cannot be a kind of government service or benefit to be consumed by a passive citizenry, but rather a self-enforcing norm of public and respectful exchange among equals. In this respect democratic “rights” are both given and earned along the lines of Athenian Democracy, where all citizens, including the aristocracy, have an equal and binding duty to participate in the governance of the society. In this respect, trusted media is the consequence of a co-creation process, a living conversation, where the audience has a role in shaping the tone and direction of the conversation. This was not possible with one way - broadcast media, but this really is the essence of social media and offers new possibilities for “civil social conversations” . This is hard for traditional media, especially newspapers, to stomach as they have seen themselves are the arbitrators of “all the news that is fit to print”. People do not want to be talked to but listened to as well.

This notion of accountable mutual civic obligations as a form of earned civic standing, may be controversial in some traditional progressive circles that see the role of the state to uphold and enforce democratic rights and where the citizenry are the primarily the recipients and not the providers of “government” services. Yet, if it is to be a Government By and For the People, then it is People who are ultimately responsible and accountable for the outcome. It is a responsibility that cannot be delegated, privatized or outsourced. This is at the heart of the perpetual challenge to core democratic values and principles: the classic “principal - agent” dilemma, where the agent, in this case, representative, judicial and executive governmental bodies, who act on behalf of the people, become self-interested, captured, and unaccountable to their “principal”, the People.

In current terms, this is manifested as the rise of ‘ the ‘expert caste”, the lobbyists, “the bureaucrats”, “technocrats”, “kleptocrats”, “zealots”, and the one percent elites that capture and control value and power. In this case, the media are not “free” or independent but is a means for different elites and interests to control “messages” that buttress and reinforce their power and influence. Such media are trusted to the extent that these interests can be trusted, and they become they authorities behind the media, whether they be Church, State, or Wall Street. What is considered “news” and “fact” are shaped by their monetary, cultural, and political interests, and the line between editorial content and sponsored content becomes barely discernible. Now media are not an independent “Fourth Estate”; they are subject to the demands of their owners, advocates and advertisers to capture “eye balls” and “clicks” in order to report investment worthy earnings.

Yet to suggest any kind of regulatory oversight for verifiable content triggers immediate objections of censorship and “big government” control by the conservative circles. For them, any alternative other than ensuring the “right of free speech” seems to inexorably entail the imposition of a Leviathan’s Will upon a censored citizenry. Given such a stark framing of alternatives, would seem to make the Libertarian’s case for a “permission-less”, free market approach where “Natural Forces”, like the “invisible hand,” guarantee freedom of choice and entrepreneurial innovation. Yet as we have seen, the actual consequence of laissez-faire policies has been a faux form of “freedom” where markets are manipulated by public and private rent seeking, and advertising-sponsor funded “free media” readily masquerades as democratic speech. Again, the underlying issue is not one of “freedom’ but trust.

Getting Beyond Left and Right: Evolutionary and Complexity Sciences

Such a Hobson’s Choice between “free” laissez faire media “ and a government sponsored media need not be the only alternative. It is predicated on premise taken from 19th century Social Darwinism that views free market competition as a form of “natural” - hence, “just” form of competition - “selection,” where all players are naturally self-interested and the winner ‘rightfully” takes all. This view is a manifestly discredited form of pseudo science that has unfortunately continued to infuse popular debate over “free enterprise” and “free societies”. Recent research in evolutionary biology has repeatedly shown that there are many Evolutionary Stable Solutions (ESS) to evolutionary challenges that are inherently cooperative “games” that select for reciprocity and altruistic behaviors. In other words, not all Evolutionary Stable Solutions are zero sum games, in fact, many if not most, are cooperative games. Complex life forms are cooperative supra-organisms composed of diverse, distributed, embedded, diverse organisms that communicate, cooperate, and coordinate through shared, and trusted signaling processes and protocols.

In other words, democratic speech” does not mean without accountability and constraint. The challenge is how to “modulate” “free speech” to be trusted and innovative communications without concentrating the powers of communication and authorization in the hands of a few. To address this question, we turn to the Science of Complex Systems, more specifically, evolutionary biology. This is not simply to argue by way of analogy, but rather to assert a real, functional equivalence between human systems, societies, markets, and biological systems, where the same principles and underlying science can be used to test for the digital living and communicating spaces we humans increasingly inhabit and depend upon. There is nothing in Nature that is free of constraint; there are always laws and rules governing living things. The question is what kinds of rules. Effective control over complex biological processes is not a top down, monolithic process; it is highly distributed, dynamically self-correcting, and event and``signal” - data driven process. In life, as in democracies, the challenge is what signals can be relied upon, be trusted, and to what degree and for how long. Evolution is a constant struggle between competition and cooperation, deceit and disclosure, and the capacity of an organism to detect, defend and innovate against false signals and to exploit honest signals. There are no entitlements in this world, each node in a signaling network has to assert and prove its value and trustworthiness. In effect, there are no absolute rights, nor are there no absolute freedoms; all are contingent, contextual, and evolvable.

Challenge to Free Speech - Protected Speech and Religious Speech

This dynamic between the absolute and the contingent becomes especially clear in the tension between the protection of free speech and the protection of religious speech. The secular right of free speech can be at odds with the religious prohibition against blasphemous speech. Similar tensions exist between the protections of free speech and the protections of state secrets. In both cases, the expression of free speech is seen as constituting an existential threat to an absolute value - the existence of a sacred value (desecration) or the revealing of a state secret - (espionage and treason). As much as industrial democracies have tried to maintain the fiction of the separation between the existential, “absolute” claims of Church and State,” they really have not entirely succeeded.

In both cases, evolutionary biology provides some guidance, because in the case of Church and the State, where there is a claim of “absolute truth”, there is an attempt to create a closed, complete, self-contained system. Whether in defense of a State or a Church such claims are scientifically not viable. Living, evolvable, and adaptive systems need to be open systems to live, learn and grow; their very survival depends upon it. In this vein, it is not surprising that even many religions recognize this requirement and prohibit forms of idolatry - the equation of the divine/infinite with a finite symbol or a fixed text. Similarly, most viable democracies prohibit or severely limit censorship so that State can learn from its mistakes and adapt to protect its core principles. In both cases, those prohibitions to free speech can become used by vested interests to perpetuate their own powers. In the case of the “Church” enforcing a kind of idolatry or literalism of texts to preserve the powers of clerics, and in the case of the State, legitimating censorship under the guise of “national security” protects bureaucratic, political and oligarchic interests.

The argument here is that there are general, scientifically valid principles at work that pertain to all forms of complex systems, biological, computational, cultural, political, and economic. Hence, these principles and scientific methods combined with evidence based research can be applied to the design and governance of Open democratic institutions. Yet as noted before, the scientific process itself is not immune from dogma, orthodoxy, and capture and closure by parties vested in the status quo. Yet science, uniquely, is based on evidence based, independent processes applied over time to which the scientific community holds itself accountable. That is, in effect, its absolute existential claim: to be open, evolvable and subject to replicable evidence and proof - regardless of the status quo.

Money as Speech and Economic Freedom

Another confusion around “free speech” is in the case of speech as an action, such as “political speech” and campaign contributions and finance. Can money be speech? Is money another kind of communications medium? In the United States, money has been treated as a kind of speech, and hence, through the “Citizens United vs Federal Election Commission” decision, the Supreme Court gave corporations the same rights of protected speech as persons. This is an unfortunate example of reductio ad absurdum of a literal and doctrinaire treatment of the “free speech” as a kind of absolute right, arguably enshrined in a literal reading of the U.S. Constitution. By making it an absolute right for a certain constituency, the corporation, the Supreme Court gave corporations effective powers of censorship. Through the “speech of money”, corporations can aggregate the powers of “free speech” in the ways that individuals cannot, and therefore, they can drown out and control the free speech of others by virtue of their unique scale and monetary means. If the right of protected speech is reframed as form of trusted communication among equals without any preference given to a religion, state or organization (corporation, union, non profit, or even algorithm), then there is no such absolute right for corporations and wealthy individuals, and there can be little justification on grounds of evidence and science that such a privilege furthers open democratic process.

Such a ruling by the Supreme Court might be warranted on the grounds that protected speech is an absolute right that needs to be protected for large and small. The point of protected speech is to prevent the exercise of a right by the powerful (majority in numbers and money/power) to the detriment of the less powerful persons (minority in numbers and money). Democracy depends upon the balancing of such powers. Yet to equate the act of donation with the act of speaking, and to equate a living person with a corporation, which by definition was created to aggregate economic powers and to limit liability, seems not only disingenuous, but potentially, a lethal blow to democracy itself.

Free Ridders to Free Speech: Overcoming The Tragedy of the News Commons

How does this framework grounded in trust allow us to deal with the failures of news and social media” fake news, trolls, hate speech, weaponized news, cyber-bulling, “chilling effects”. deceptive advertising, manipulation, misinformation, conspiracy theories, false equivalences, click bait, false attribution, treasonous speech, blasphemy, degradation, “micro-aggressions”, political speech etc. ?

First of all it is important to recognize that there is not a single top down, omniscient, perpetual, uniform solution. Hence, government as a single authority or source of power CANNOT solve this problem. Second, the issue should not be framed as “free speech” or “true” speech, but rather as trusted communications; that is, trusted assertions and communications that different parties for different purposes are willing to take risks and make personal, economic, cultural and political investment in decisions and actions based upon their trust in those authorities or sources of communications. Note that in any society different parties can benefit from the trustworthiness of different claims even though they may not individually trust or believe in those claims. In short, there can be a kind of parasitism or free rider effect of one group denying the claims of one group and yet using the products or services of that group to their own benefit. Anti-scientific and anti-evolutionary communities of belief are an immediate example where they are beneficiaries of the technologies and services derived from the science and the evidence. Science is a very costly signal in that it requires evidence and proof and cannot be self asserted. Conspiracy theories, prejudices, hate speech, superstition, fundamentalism are virtually “costless” as they can be self asserted without independent proof or evidence.

Open News Media Commons

In many respects, the public sphere of free speech and media , like the public square, is a kind of “commons” of speech. It is open to all, and is owned by no one and everyone. Its value is dependent upon the restraint of the individual not to exercise their rights and privileges to the detriment of others, their peers. The greatest threat to the commons, is the anonymous, self-interested actor, indeed, the perfect free market actor, so celebrated by Ayn Rand and her followers in Silicon Valley. Without mutual accountability among full peers, the commons, whether it be water, woodlands, air, the environment or open speech, cannot long survive encroachment, capture, and eventual destruction. The antidote to the Tragedy of the Commons was discovered by Elinor Ostrom in her 8 principles for the governance of the commons for which she received a Nobel Prize in Economics, the only woman to do so. One does not have to resort to a centralized, collectivized “big government” to govern a commons, but can preserve the generative value of the commons by decentralized oversight and mutual accountability.

A digital news commons of free and open speech - communications from any node of the network to any other node of the network can be achieved through a distributed network of peers, each of whom is held in account to the other. All have equal standing in the foundational architecture of the peer. All parties, persons and corporations are equal peers without the capacity of one to capture of control the other. The commons is governed not by a particular “body” or “super node” but by an open protocol that ensures that call nodes have equal access to one another. As a member of a commons, each person or node has a duty to ensure and verify that communications are fully free and unconstrained. In this respect, the news commons functions like one of the Peer to Peer Network in the “ mining” or processing the verifications of tokens or coins for crypto-tokens Bitcoin and Ethereum. However, there are key differences, and without delving into the weeds of technology, suffice it to stay, that through new consensus algorithms, such as “proof of stake” and “proof of standing” it is possible maintain the integrity and balance of the P2P network without extensive computational or environmental costs.

Trust and Pseudonymity Over “Free” Market Anonymity

One of Elinor Ostrom’s key findings is that members and participants of a commons need to be identifiable and accountable. The right to participate in a commons is balanced by a duty to preserve the commons and in order to enforce that duty, every member must be subject to sanctions. That does not mean that there has to be a supervising “body”of “officials” only there are supervisory protocols or norms that “autonomously check and correct” the actions of peers to preserve common pool resources. In this first instance, those freedoms and rights are the ability to communicate and access any node on the network without restriction. That does not deal with the thornier problem of not just the origination and distribution of content or speech, but the integrity and the provenancing of the content. How does one verify that content is what it purports to be, and that its claims are true to the extent they can be verified. Shouldn’t there be a “commons test” made about attributions and claims whereby their validity can be tested and inventoried? Should not all claims be subject to an Open Commons Content Protocol for discovery and testing against transparently verifiable criteria? Hence, in such a network everyone has equal standing as a “founding”peer, but over time they should be able to acquire additional standing and credibility by becoming trusted authorities on different kinds of topics and events within the network. It would not be the duty of the Open Speech Commons to decide what is truthful or not , as that is subject to change, learning, evolution, and self-correction over time. Rather the goal would be to have open protocols and services that members of the commons can use to create and test trusted authorities through evolving metrics and algorithms. Think of it more a kind of “trusted learning machine” that is independently agnostic about what constitutes a reliable source and authority and is perpetually testing and challenging itself to see what authorities have the highest standing with respect to different topics and contexts. In this respect, the Open Speech Commons is really a discovery and skeptic “machine” made up people and bots that generating, sharing, validating, challenging and discovering new content and explanatory principles.

Signatures of Trust: Sorting The Fake From The Authentic

What is true and what is false is a contextual continuum. It is context because the criteria for determining truth worthiness varies over time. It is a continuum because there are some “objective’ common facts that 99.9999 of the worlds population would agree to. Then there are facts whose “truth” depends upon the community that uses and generates those facts. In one case, that “community” may be comprised of conspiracy theorists, flat earth society members, biblical literalists, and in another, Nobel Laureates and successful scientists from diverse fields. It is not for the platform to say which one is “true” but rather to establish such reliable authoritative signatures, metrics, and signals that differences in trust and reliability can be determined by anyone in the network. The commons or network over time should accumulate reliable knowledge about the validity of different sources of content, the credibility of different methods used to assert and validate claims made of context, the success of such claims in rendering predictions or in facilitating actions or achieving announced results.

The means for creating an Open Speech Commons is very similar to that for a data commons for how to create and exchange new kinds of digital asset classes. Every originator and consumer of content has a verified “persona” which provides a pseudonymous identity with verifiable attributes. What those attributes could be vary by context, but these attributes are essential for giving that persona “standing’ in their community. In the case of the scientific community mentioned earlier, it could be verified claims about education, publications, research projects, collaborations, references, testimonials, levels of activity. In other cases, attributes could be about standing in the sense that the individuals were residents of a particular place affected by an event, eye witness to an actions, recipient of a beneficiary or detrimental action, such as having first hand experience. Attestations to such claims would be verified by other parties - some independent - some not - which should affect the reliability rating of the individuals standing.

There could be strong penalties for behaviors that are manifestly detrimental to the overall welfare of the commons. It is up to an Open Speech Commons to develop its own norms for developing metrics and enforcing different standards and levels of conduct. For example, accumulative attempts to censor, distort, misrepresent, demonize other members could result in fines and eventual expulsion. The severity of the sanction should be proportionate to its adverse and accumulative effect on the commons. One would expect to see wide diversity in different commons communities regarding a preference for social cohesion and moral norms verses being open, highly tolerant and adhering to “objective scientific standards. For example, opinions that are dissonant with established religious and social norms, may be rated differently in different communities and cultures. Pornography is a powerful example of a highly cultural and contextual form of content, whose definition lies in the eyes of the beholder and that beholder can be individual and an institution, such as a church. Furthermore, pornography may not just be regarded as sexual content, but violent social content as well. Arguably it is the nature of the type of content itself that can have adverse effects on a community or a commons, and therefore subject to sanctions and stricture.

Facts Don’t Always Count: Objective and Social Truths

Part of the Enlightenment “legacy” of the American Constitution is the notion of “rational choice” and its corollary, “informed consent”. Given the right facts, people make informed, rational decisions. This premise about human nature is a pervasive “design”assumption throughout the entire Constitution and the Bill of Rights. And it is wrong. Neuroscience, evolutionary biology, cognitive and social science studies have convincingly shown that people’s opinions can be impervious to facts and they can repeatedly make decisions that are “irrational” and contrary to their own interests. In other words, there are many social, evolutionary, and neurological factors affecting what people think is factual. People for the most part do not make key decisions on “objective” facts alone - even when presented with incontrovertible “counterfactuals”. Our species tends to see what we want and need to see. We all have evolved with an inherent confirmation bias that keeps us from accepting and incorporating new facts that do not confirm the “established truths” of ourselves or our groups. The reasons for this are pretty well known; we are a social species whose survival - ability to reproduce - has more to do with observing the “truth” of social facts rather than objective facts. Nowhere is this better demonstrated than when a wife asks her husband, “Does this dress make me look fat?”. The seasoned husband knows that he is not well served by being “objective” in his answer. This same ritual is repeated throughout a variety of social and professional occasions where a factual - objective and truthful - answer is detrimental to one’s self interest and even survival. To speak with a Spock like candor and dispassion on all occasions is to venture onto Asperger’s spectrum and place oneself into social jeopardy. On the other hand, not recognize real world objective conditions and threats is also not conducive to survival.

So how does evolution balance these twin requirements? The answer to this question is very relevant to how to design trusted media organizations where content is originated, validated, and dispersed socially. What are those conditions that trigger the “dopamine” rewards that make people trust a source and retweet it? What makes it possible for someone to change their mind and adopt a fact, opinion or even value that they have long resisted? How was it in a relatively short period of time that gay marriage became acceptable in not just U.S. urban areas, but in a Catholic country such as Ireland that had vehemently opposed it for centuries? How is it that climate change is denied by so many highly educated individuals when the scientific evidence is so strong?

When “objective truths” such as climate change or technological change threaten deeply held and intertwined social “truths” and relationships, it is often the social truths that prevail until they are overwhelmed by the objective truth. Neuroscience tells us that emotions precede reason, so when a person looses a limb and is asked to explain a phantom movement, they will invent a rational reason explaining the action - even when the explanation is clearly impossible. In those cases where someone does not know a topic very deeply or completely, such as the details of a piece of healthcare legislation, they will rely upon those whom they trust or depend upon on for other circumstances. True believers become all the more adamant in supporting those positions, the more they are challenged. They double down rather than back down; they just can’t afford to be wrong.

Real News

What does this have to do with a free press and factual news? The “truth” of news is not simply factual but often “social” and relational, a kind of social grooming that affirms the safety and continuity of relationships and ties. This is something that is hard wired into us as a social species and it is as strong a force as any inherent ability to reason and make decisions. It is a bender of facts to sustain social realities that can be far more immediately consequential both personally and tribally than any long term objective reality such as, climate change. Elaborate sense making of tenuous facts to justify prior, vested beliefs, be they a simple confirmation bias or elaborate conspiracy theories, are a natural part of news making.

This social factor was overlooked through a kind Enlightenment bias of rationality inherent in the design of First Amendment provisions which presumed the independence of rational facts.. The trouble with this assumption is that the credibility of facts is tied to the authority of the social institutions that originate and distribute those facts. This weakness comes to fore in social media where those “trusted” sources can be so easily spoofed and there is no immediate way of checking, disconfirming, or even identifying sources. Anonymity, and costless content origination and distribution, are the very qualities of advocates of the “Free” Internet that in practice undermine trust and a “truthful media”. In short, a freedom of press predicated on anonymity and a lack of accountability contributes to a false media, a captured media, that cannot be relied upon. This becomes all the more indisputable when the instruments of falsehood, deception, vilification are autonomous bot armies, a kind of social malware that hacks and destroys trust and security of the social layer of the Twitter, Facebook, Google, YouTube, Baidu, upon which we are increasingly dependent. This problem is inherently social, even biological, and technical and computational. It cannot be addressed without addressing both.

Democratic Society as a Learning Machine:

Well being, like survival is based upon learning and adapting. In this sense, democratic societies are social machines to achieve well being and survival. It is their capability to learn and adapt,rather any particular democratic institution or process - that is the best judge of their success that is most. As democratic processes and social processes in general become more digital and shaped by technology capabilities, the manner in which social well being and survival may advance may challenge the efficacy of traditional democratic institutions and practices.

News is both social and objective. Its appeal is emotional and social and yet it is a reporting of objective events - that have objective consequences. People become socially invested in whom they are and their relationships and see greater cost to themselves in jeopardizing those relationships than in not accepting an objective truth. In effect, it is often more important to keep one’s family and colleagues happy and loyal than being right about some objective or scientific fact. Hence, our ability to make “rational” fact based choices is contingent on providing those circumstances where people feel safe and that to incorporate a new fact or opinion will not undermine their sense of well being. Learning begins by taking something unknown and making it like something already known. Gradually, over time, it becomes possible to evolve a new concept in its full richness that can very different from the original notion. A car really is not a horseless carriage, but at the beginning, it approximates certain features that make it possible for the learner to evolve a concept of car that eventually is unfettered to the notion of a horse. For many climate change deniers, the issue of climate change is just a ruse and conspiracy to enable“big global government. That fear of a controlling “big government” is so pervasive that it blocks any consideration of the viability of the science. Since it is possible to “cherry pick” any collection of facts, the acceptance of such facts by climate change deniers is only possible if the remedy does not entail a loss of personal freedom to global form of government. In the mind of climate deniers the origin and organization of facts and models of climate change are driven by the covert interests of forming a global government.

Costless and Costly Speech.

Liability laws vary in their definition and enforcement across different democracies. The key premise is of any injured party; that is, that a particular form of speech by defendant caused harm to a plaintiff. Again, the commons perspective comes into play here as the harms in this instance are not just against an individual, but also against the commons as a while. A particular vicious and harmful form of speech can also act as a chilling effect on others in the commons and can inhibit other forms of communications and speech. The Twitter attacks by candidate and President Trump not only had material effect on those attacked, death threats, stalking, and trolling, material and psychic damages, but on society as a whole and on anyone who might disagree with him or challenge him. This is clearly an effort by the President to take away the First Amendment Rights of citizens, legislators, whistle blowers and the media for challenging him. A democracy cannot survive such onslaught unchallenged, especially by the Chief Executive, and these actions should be treated as impeachable offenses detrimental to the welfare of the Republic. Likewise, flagrant false speech with the intent of undermining the credibility of the commons of shared public facts should also be subject to sanctions and prosecution.

This can be a very murky area of definition and enforcement as in many tenuous democracies and failed states it is a punishable offense to criticize the government, leaders, religion, and the society in general. In some cases, even a seemingly mild censor by an authority figure can result in extreme intimidation by his “followers”. Yet if one is to abide by the principle of the Open News Commons, the speech act should be judged by its effect not by its overt content. Likewise, repeated offenses with similar effects do reflect intention and hence, entail sanctions and enforcement. There is often a presumption that the statement of something critical or negative is not mean as a corrective, but as a slight and insult. Again, the question of asymmetry of power needs to be considered, as it is very different for a President to attack an individual than for an individual to attack a President. The power of an independent algorithmic tracking and rating of such speech might prove useful if it can be shown to be based on common sense principles and preserve civility and openness.