How Do We Know Stuff?

How do you, I, and people in general know anything? Of course we all “know” what we perceive through our five senses. Assuming that our brains are working right—so we accurately perceive and remember what our senses tell us—we know at least that.

We evolved on the African savannah in family-based clans of thirty or fewer individuals. Then, that knowing was enough. Pretty much everything we needed to “know” for our survival we could see or sense for ourselves. We could see, hear or smell where the food was, where the saber-toothed tigers hid, and where were the strong, tall trees to rest and sleep in safely. Once inter-clan wars started, we could see where our enemies dwelled and what weapons they had.

Yet we could also “sense” reliably through others of our clan. Why? We knew them intimately, often for our and their entire lives. Jim, we knew, was a little thick. Mary was a scaredy cat and quick to perceive dangers and threats. Joe had an over-active imagination. We could discount and correct for inaccuracies in others’ perceptions because we knew them intimately and often life long. And sometimes people whom we knew and trusted personally helped correct our own biases and misperceptions.

Now we live in continent-spanning societies of hundreds of millions of individuals. We rely on their perceptions of reality as much as our own. We have to, because there’s so much more social and political stuff, let alone education and science, to perceive. And yet we have no way of knowing, even in abstract theory, how the peculiarities, needs and desires of individuals in these vast multitudes affect their perceptions of “fact.”

So insofar as our human ability to “know” things goes, our social structure has gone far beyond its Peter Principle (rising to one’s level of complete incompetence). If we try to rely on the same intimate person-to-person acquaintances that we had in our tiny clans on the savannah, we can’t possibly know all we need to know.

There are far, far too many people on whose word we rely every day, but of whom we have absolutely no personal knowledge or experience. They include everyone from the weatherman, through our local news anchor, to anonymous geeks and “influencers” in foreign lands whose tracts and AI-“enhanced” videos we see on the Internet.

So today we have no solid basis for trusting or believing anyone we don’t know about anything, except blind faith.

This situation has crept up on us Americans with the speed of our population and technology explosions. At our Founding, in 1791, we lived in cities and towns small enough for most educated people—and especially civic leaders—to know each other personally, as well as the writers, editors and publishers of the day. Even today, many highly educated people know the thoughts and long-dead personalities of the authors of the Federalist Papers better than they know the writers, editors and producers of what they see on TV or cable, let alone on the Internet.

So what does all this mean? It means that we have to have some other basis than long and intimate personal acquaintance to trust external sources of information in our lives. That’s especially so in a society build around profit, in which everyone has, or may have, good monetary reasons for distorting or “slanting” the information they give us.

Oddly enough, we do have such a basis. But, as we’ll see, we’ve partly abandoned it. It’s part of the old English common law, which developed organically along with democracy. It’s an absolutely essential means—and the only practical means—of encouraging truth-telling in a society where lies and misinformation can be profitable and can confer enormous political, economic and social power, not to mention fame and notoriety.

It’s called the law of defamation. In its pure form, it’s very simple and powerful. It’s not limited to lying, in the sense of deliberately telling an untruth for a nefarious purpose. It condemns falsehood alone, for any purpose.

If you publish a falsehood, if it harms someone, and if they can prove the falsity and the harm, you pay. That’s the law of defamation in a nutshell. It’s a simple rule requiring compensation for proven harm. In a society obsessed with money and profit, it’s a powerful disincentive against publishing and promoting misinformation.

Does the law of defamation work in America, where “free speech” is our prime directive? Yes, it does. It applies only to facts. You can say anything you want—literally anything—as long as you preface it with the words “In my opinion . . .” But if you state something as a fact, and if your statement has the potential to injure someone or something, you’d better be able to prove its truth in a court of law.

(If you state a falsehood about a political or other public figure, your statement must also be reckless, knowing or willful before you are liable. This rule protects political discourse; it’s how the law reconciles the prohibition against defamation with the near-absoluteness of the First Amendment. The law also draws a line between mere statements of facts and incitements to violence, which are prohibited.)

When you consider the effect of the First Amendment on “knowing,” it doesn’t take long to conclude that that law of defamation is essential. Without it, anyone could publish any misstatement without consequence. You could falsely accuse your neighbor of incest, rape or murder. Your local pols could falsely accuse each other of sexual harassment, taking bribes, embezzling public funds, or genocide, and there would be no repercussions. We would have, in short, the kind of fact-free free-for-all in political discourse that we pretty much have today.

What keeps the owners of today’s supremely powerful electronic media from leading you around with deliberate lies like a dog on a chain? Only the law of defamation.

And how do we know? Because of a defamation lawsuit by Dominion Voting Systems, which Fox settled for $787.5 million, likely believing it would lose even more if the case went to trial. In essence, Fox settled because its own anchors and executives had privately repudiated their on-air lies that Dominion’s equipment had helped Joe Biden “steal” the 2020 presidential election from Trump.

There are two things about the Dominion case that every citizen should know. First, the evidence that Fox’ employees deliberately and knowingly lied was not necessary for Dominion to collect compensatory damages. But it did bear on the issue of punitive damages, which courts can award, in their discretion, in cases of particularly egregious conduct, such as deliberate, knowing lies.

The Supreme Court has limited punitive damages in cases of “torts” (civil wrongs like defamation) to “single digit” multipliers of the compensatory damages, i.e., the proven harm. That means a maximum of nine. So adding punitive damages to compensatory damages gets you nine plus one, or a factor of ten. One reason for the huge Fox settlement was the possibility of a much higher court award including punitive damages.

The Dominion story is a healthy one. Fox is likely the most effective propagandist in human history. It’s also run for private profit, unlike the historical state-sponsored propaganda machines of Hitler, Stalin, Mao and Kim. So the big slap on the wrist of three quarters of a billion dollars in agreed damages might have an effect on Fox’ future behavior.

Better yet, there’s a similar defamation suit still brewing against Fox. Another voting-machine manufacturer, Smartmatic USA, claims Fox defamed it with similar “Stop the Steal” lies. That lawsuit claims $2.7 billion in damages. If it goes to trial, and if the court awards the maximum of punitive damages, the total award could reach $27 billion. That might put Fox out of business—a consummation devoutly to be wished. (In yet another defamation suit, a court ordered the vile blowhard Alex Jones to pay $1 billion in compensatory damages and $473 million in punitive damages to parents of children killed in the Sandy Hook massacre whom Jones defamed as perpertrators of a hoax.)

But here’s the rub. All this salubrious correction of the errant Fox and Jones relied on their use of near-obsolete technologies: broadcast and cable TV. Those technologies—like all paper publishing and broadcasting media since their inception—are still subject to the common law of defamation, developed by English and American courts since Magna Carta, and sometimes codified in state statutes today.

If Fox and Jones had published the same lies, authored by anonymous trolls, only on the Internet, they would have suffered no consequence, and Smartmatic would have no lawsuit. Why? Because a one-sentence “midnight amendment” to the so-called “Communications Decency Act of 1996” wiped out the entire, ancient law of defamation for Internet platforms that publish others’ falsehoods. If only Fox and Jones had kept up to date in technology and republished the same lies by users who could not be found or had no money, they could have published the lies without any monetary consequences whatsoever.

The “midnight amendment” that might have saved Fox and Jones, and which condemns our society to an Internet of Lies, is called “Section 230(c)(1).” (Some people erroneously call it “Section 230,” but the section as a whole deals with different and much less consequential matters.) What Section 230(c)(1) does—in a single sentence!—is wipe out the centuries-old, single bulwark of truth in a society based on free speech: the law of defamation. And it does so for the most powerful medium of communication (the Internet) that our society has yet developed, which is literally taking over the world.

If I had titled this essay “Modern Epistemology,” most of you reading it would have clicked out long ago. But this issue is far too important for pedantry. In the mere 27 years since its release for general commercial use, the Internet has become the primary, if not the only, means by which billions of people around the world “know” things beyond their personal lives and families.

I’ve watched repeatedly while nuclear families, lovers, married couples, dates and close friends have sat across the dining table from each other, silent, perusing their mobile devices. If what they read and see on those devices is false, while they sit across from the very people most important to their lives, what can we say about their “knowing”?

If there is no accountability for spreading misinformation on the Internet, misinformation will spread without limit. It will spread all the faster as other means of communication (such as broadcast and Cable TV) succumb to the Internet’s efficiency, ubiquity and availability on hand-held devices.

Isn’t that precisely what has happened, in the fields of politics, climate change, and so much else? Then what has become of our species’ “knowing”? What can we conclude when upwards of 40 million people still believe that Trump won the 2020 election and the planetary heating that most of us now can see and feel with our own senses is a “hoax”?

The least we can say is that our collective “knowing” is less likely to mirror reality and more likely reflect the desires of those who control the Internet. Section 230(c)(1) is thus putting the “knowledge” of our species in the hands of oligarchs who control the Internet for profit. What could possibly go wrong?

In the beginning, there was a plausible excuse for Section 230(c)(1). In 1996, when Congress adopted it, the Internet was new and tenuous. The technologists who created it, and the oligarchs who financed it, feared that holding the Internet to the same standards that had always applied to print and broadcast media might stifle the Internet’s development.

That fear was then plausible. The Internet, after all, was supposed ultimately to allow everyone on Earth to communicate with everyone else. That means that the closeted nerd in Alma Ata, the Russian spook/troll in the Internet Research (Misinformation) Agency in St. Petersburg, and the brilliant savant in Mumbai can communicate wisdom and/or lies to every suburban mom, dad in kid in the US.

Fair enough. Maybe that’s ultimately a good thing. Universal unfettered communication certainly seemed like a good idea at the time. And maybe the early investors in the Internet needed a liability cushion to incentivize their initial investment.

But we are now close to three decades away from that precarious birthing point in the Internet’s history. The Internet is here to stay. It is firmly entrenched in our society, our culture and our economy.

It has far more financial justification in trade, logistics and commerce than it ever will have in information supply. Amazon, with its myriad of internal mom-n-pop-online stores, isn’t going anywhere. Nor are Lowe’s, Home Depot, Walmart, CVS, Target, Nordstroms and all the other merchandisers that have an online presence.

Insofar as investment is concerned, general information (and misinformation) is merely a sideline, without which the Internet could easily succeed and grow. Today it’s commerce, in the form of online sales, promotion and advertising, that drives and supports the so-called “free” exchange of information and misinformation on the Web. This fact is apparent to anyone who notices the recent explosion of “sponsored” results of searches for both information and products on the Web.

So is it still essential to allow misinformation to spread like wildfire on the most powerful means of global communication ever developed, in societies with no restraint on it but the law of defamation? Must we let false “knowing” drive us mad like Euripides’ destroying gods?

We don’t have to go cold turkey. Nor do we have to let lawyers run amok producing a multi-page statutory tome to deal with the issue. Far less should the law specify how Internet platforms ought to weed out falsehoods. That’s for Internet platforms to discover for themselves by experimentation, trial and error, at their own expense.

Truth is truth, lies are lies, and falsehoods are falsehoods. Anglo-American courts have been capable of discerning the difference for centuries, at least well enough to let democracy survive, aggrieved parties to recover, and accurate human knowledge to increase explosively.

All Congress has to do is repeal Section 230(c)(1) with a lead time of, say, one year before the repeal takes effect, to let Internet platforms accommodate. In the interim, nerds, their bosses and their investors can figure out how best to weed out misinformation from their platforms, what defamation risks to take, whether to get insurance, and whether to stay in the “information” business at all.

The Internet will retain vast utility if not every website is a publisher. In fact, its utility and efficiency may increase.

Online life will go on. Falsehoods will decrease, slowly at first, then faster as key defamation actions arise and their significance gets digested. Each Internet platform will determine, in its own way, at its own time, how to combat lies and misinformation. The purging of lies will become organic, multifaceted and global, as befits a distributed medium with no central control point.

The only thing that will change is that lies, falsehoods and disinformation will have an economic disincentive, and those injured by them will have a way to recover. American society, at least, will rejoin the path of “knowing” that wise common-law courts of England, Britain and America once pioneered in the ages of print and broadcast. Even Elon Musk might stop beating his chest and bloviating long enough to put his sometimes-creative mind to the task of helping people “know” what’s actually true and relevant, as distinguished from his own personal opinion.


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