Critical Thinking: Should Posting Fake News and Hate Speech Be Considered a Criminal Act in the U.S.?

“Germany’s Cabinet recently approved a new bill that punishes social networking sites with fines of up to 50 million Euros ($53 million) if they fail to remove illegal content such as hate speech or fake news. Should posting such things be considered a criminal act here too in the U.S.?”

Shelby Niehaus, 22, senior, Eastern Illinois University (Charleston, Ill.)

Niehaus is the opinion editor for The Daily Eastern News.

Germany’s new ruling on hate speech and fake news posted to social media is a mark of an admirable goal to squash hatred and lies from public dialogue. I believe I speak for many Americans when I say we hope the new law makes German online communication better.

However, should such a law make its way overseas to here in the U.S., I would not be happy to see it.

Let me be the first to admit that I don’t understand German law, public policy or social organization. German lawmakers certainly have a much better grasp on that than I. But what I do know is that American law has and should lean towards an unabridged right to speak opinions publicly, whether for social gain or social harm.

The right to speak hate seems antithetical to the all-American pursuit of happiness and equality for all, but there’s a higher calling in that protection. Outlawing beliefs, even outright hateful ones, can give those beliefs extra power. A phrase or idea is a decent rallying cry, but an outlawed, taboo idea is a flag to fight under.

Beyond that, banning fake news decreases our ability to make judgment calls both as individuals and as a society. If we assume that all news we encounter is truth, the fake news that makes it to our screens—and it will, even if it must be removed within 24 hours—is all the more dangerous because we immediately assume that it is real. Fake news bans also place ambiguities at risk. New developments, gray areas, inexperienced writers and overworked publications all run an outside risk of getting slammed with fake news charges, and otherwise innocent social media sites can take the fall.

Decreeing that fake news and hate speech moderation is now up to social media platforms takes the fault and responsibility away from the actors. The real problem isn’t the platforms that allow individuals to broadcast fake news; the problem is the people who write it as well as those who continue to circulate fake news and hatred in communication situations that rely on human interaction to function.

Instead, we should concern ourselves more with cultivating a cultural atmosphere in which hatred and falsehood is addressed rationally and is destroyed from within. We should be intrinsically, not extrinsically, motivated to make American public discourse better.


Mark Mahoney, 53, editorial page editor, The Daily Gazette (Schenectady, N.Y.)

Mahoney has been a journalist for nearly 30 years, and in 2009 was awarded the Pulitzer Prize for editorial writing.

Given Germany’s history, it’s easy to understand why the country might take extraordinary steps to suppress hateful speech and thwart the spread of “fake news” that might fuel the embers of hatred and violence.

So on the surface, passing a law to heavily fine the carriers of that speech seems like the compassionate and reasonable thing to do.

But the fight against hatred and misinformation won’t be won by limiting speech or cutting off the supply of violent voices, but by encouraging the free exchange of words, thoughts and ideas, and allowing the citizens the opportunity to protect themselves.

If society suppresses one voice, it suppresses all voices. Let the people, not the government, decide the parameters of acceptable speech and conduct, and it will work itself out.

As the opinion page editor at a daily newspaper, I’m sometimes criticized for allowing commentary that many might consider offensive. But my experience has always been that allowing unpopular or even virulent voices encourages others to speak out against them and leads to a more vigorous and comprehensive debate. Without one perspective, you won’t inspire the other.

How do I determine how far I’m allowed to go? Not by fearing a fine or other government retribution, but by following the lead of our readers in what they are willing to accept.

Laws we have in place in this country against libel and against speech that incites violence already stand as legal limitations to speech that goes beyond a simple expression of competing views. Crying fire in a crowded theater is not legally protected speech, nor is inciting a riot or saying something that causes someone direct harm. And without government intervention, public pressure has already forced the Googles and Facebooks of the world to re-examine their policies and practices, and to intervene when the actions of their users violate the public’s standards of decency.

The German government’s action will do nothing more than compel the social networking sites to shut down all speech they fear might trigger a fine, thereby cutting off the free exchange of thoughts and impeding the flow of information that reaches their citizens.

Is the system of letting the public dictate their own tolerance for offensive speech always perfect? Not by a long shot.

But letting the people decide the parameters of free speech is far more preferable, and in the end effective, than letting the government do it for us.

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