This article has been written by Ria Verma, at Symbiosis Law School, NOIDA. This article aims to give an overview of free speech in India and the USA, the causes for believing in conspiracy theories, and whether they can be construed as free speech.

This article has been published by Rachit Garg.  

Introduction

We often see a number of conspiracy theories circulating on social media that are politically motivated, preventing us from believing in the validity of the claims made by an influential figure. A few examples include ‘the earth is flat’, ‘vital information about the vaccines is being concealed’ etc.  

On the other hand, we have the right to freedom of speech and expression providing citizens the right to express their opinion in writing, by speaking, or by posting or any social media platform without any external pressure or obstruction. 

Social media platforms and in general, the internet have emerged as the hotspots spreading misinformation and fake news especially regarding matters concerning public health and safety such as the safety of the COVID-19 vaccines, intentionally releasing fake information during elections, and all sorts of character assassinations. 

Conspiracy laws have also been regarded as one of the important tools employed to restrict or dissuade individuals from joining controversial groups or political causes.  

What is a conspiracy theory

A conspiracy theory is a theory that explains the occurrence of an event or the timeline of certain circumstances by linking them all together and pinpointing the blame on influential conspirators. These theories can be classified as statements about issues of public concern that are false. 

Conspiracy theories have been on the rise considering how easy it is to make an account on any social media platform and make a theory pointing fingers at groups belonging to certain ethnicities, races, tribes, castes, etc.

Some conspiracy theories have been circulated for a very long period such as Moon Landing, Flat Earth, Illuminati conspiracies while some conspiracies die rather quickly. Since the 2016 American presidential elections and UK’s withdrawal from the European Union, conspiracy theories have been a common topic of discourse. Several individuals suspect the elections are being influenced by misinformation campaigns and conspiracy theories. 

Recently, a study found that almost all the 30 subjects who believed that the earth is flat, were recommended flat earth content after viewing videos on other conspiracy theories. YouTube has had some difficulty differentiating between ‘harmful’ conspiratorial misinformation from content made for entertainment purposes. However, recommending videos on why vaccines are harmful poses clear public health risks. 

YouTube said it would prevent advertising from channels promoting anti-vax content since it falls under their policy of prohibiting ‘dangerous and harmful content’ from advertising. When a user searches on the platform whether vaccines are fake, they see a number of authorized sources emphasizedin the top results. However, after watching a few videos the up next algorithm recommends anti-vaccination videos. Youtube algorithms are seen to prioritize information that can cause strong resentment towards an entity, political party, or a specific community.

Conspiracy theories can be a significant factor in contributing to physical harm on a large scale. For example, the government of South Africa claimed that AIDS is not caused by HIV and approximately  300,000 deaths could have been prevented. Click-baiting (quite prominent in India), emotion-evoking information spreads like wildfire and could incite groups of people to commit heinous crimes or incite violence among the public masses. 

The universe of conspiracy theories can be compared to a minefield. Peculiar ideas not only affect the political systems but question whether more stringent regulation is required to regulate free speech.  There was a recent outage on October 4 on Facebook, Instagram, and WhatsApp for a period of 6 hours. Users claimed that the outage was because Zuckerberg had plans to enter the cryptocurrency market. A faulty configuration change was held as the main reason by Facebook for the long outage. 

Big tech companies are struggling to regulate the content and misinformation being spread on their platforms. One study even found that fake news is circulated faster than authentic content on Twitter. 

A comparative analysis on free speech in India and America

Having the freedom of speech and expression is a paramount value for the smooth functioning of a democracy. In Shreya Singhal v Union of India (2015), the right to freedom of speech and expression was held to have paramount significance under our current constitutional scheme. The right to freedom of speech and expression is considered the backbone of a democratic and progressive society.  

Article 19 of the Indian Constitution

Article 19(1)(a) of the Indian Constitution gives the right of freedom of speech and expression to all the citizens in the length and breadth of the country. This speech and expression could be through writing, by words of mouth, pictures, printing, or any other medium of expression. 

Any restriction on this right should be reasonable, that is, it should not be beyond an excessive limit or be arbitrary in nature or not in the public’s interest. ‘Reasonable’ implies care and deliberation, choosing a course dictated by reason.     A reasonable restriction holds significance because it limits the power vested with the legislature and also enlarges the ambit of conducting a judicial review of laws that restrict freedom of speech and expression. The reasonable test involves considering whether a reasonable man would find any restrictions or obstructions in his daily life that would lead him to the conclusion that the law is unreasonable. 

Recently, there have been concerns with free speech being invaded by the actions of the police regarding the protests against the farm laws and the CAA. On the other hand, the speeches made by prominent public figures have been alleged to encourage or provoke violence against the State. During the start of the pandemic, the narrative that the coronavirus was caused by 5G cellular technology was quite common. Another common theory was Bill Gates using the virus to enslave all of humanity by conducting a vaccination and surveillance program worldwide. Most of these theories were proven untrue but these stories being circulated on social media and in the news cycle has led the Director-General of the World Health Organization (WHO) to warn that “We’re not just fighting an epidemic; we’re fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.”

US standard- First Amendment

In contrast, the American legal landscape has the First Amendment rights that are quite significant and are to some extent similar to Article 19. Four interrelated reasons for their significance have been explained as follows: 

1. The right of free speech and expression is significant for the development of the character and the potential of an individual. Suppressing this right would be equivalent to violating an individual’s dignity.
2. Free expression is of utmost importance for a society devoted to ascertaining the truth. 
3. It is an indispensable right for a democratic society to provide the participation of the people in the decision-making process available to all the members of the community. 
4. It promotes rationality essential for a feasible democracy and is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.’

Through the First Amendment, the US Constitution seeks to limit the power of the government in formulating any laws that could obstruct the citizen’s right to free speech. However, no legislation has mentioned whether speech through social media platforms would be valid. Several debates and discourse have arisen due to the restrictions on free speech on social media platforms. 

Social media platforms have the power to limit and regulate the content being circulated without any constitutional constraints thereby, leading to a denial of freedom of speech. In Packingham v. North Carolina (2017), the majority of the judges believed that social media would come under the ambit of ‘protected space’.

Social media algorithms provide advertisements catering to the needs of the user based on the sites they have previously visited, the products they were browsing, and what page they would like to open. Content is specifically curated for the user in their newsfeed and is playing a major role in political polarization in the US. 

Brandenburg v. Ohio (1969)

During the 1960s, the US experienced one of its most tumultuous periods in history. Many white Americans had started to resist the change that was being brought with the Civil Rights Movement and sought to join the Ku Klux Klan (KKK), a white supremacist group. 

A KKK rally was held in Ohio. The leader of this rally, Clarence Brandenburg asked a television reporter to cover the event and made derogatory comments against the Black and the Jewish communities. He also talked of taking ‘revenge’ if the President, Congress, and the Supreme Court would keep suppressing the caucasian race. The cross-burning and racist remarks made by the crowd were recorded and broadcast on the local news. He was convicted under the Ohio Syndicalism Statute, 1919, and charged for inciting violence and forming groups to advocate criminal syndicalism.

The US Supreme Court reversed the decision after an appeal because his actions that the Ohio statute infringed on the right to freedom of speech and press, guaranteed under the First Amendment to the US Constitution. The court observed that a statute which does not draw a reasonable line of distinction between mere advocacy from incitement ‘sweeps within its condemnation speech which our Constitution has immunized from governmental control.’ 

The ruling established a “Brandenburg test” considering factors such as likelihood, intent, and imminence. It replaced the “clear and present danger test” that was established in Schenck v United States, (1919) and was commonly referred to explaining “shouting fire in a theater” as an aphorism describing actions that could potentially cause panic and “create a clear and present danger” through anarchy or sedition. The Ohio Syndicalism Statute, 1919 was struck down. 

Justice Douglas criticized the limitations of free speech that were based on the premise that such speech could lead to unlawful activities taking place. The government could lay down certain guidelines to regulate the manner of advocacy such as the place of protest but it could not control the thoughts and beliefs of an individual. 

The court delivered the judgment and laid emphasis on the importance of the judiciary’s duty to not forgo its right of upholding the right to free speech. This decision is especially relevant for India due to the current social and political divide.  

Now, to put conspiracy theories under the aegis of the First Amendment and the Brandenburg test, it must be scrutinized whether this speech is intended to produce imminent lawless action. There are two conflicting views on this question. The majority of people believe that a conspiracy in itself is a threat to democracy therefore, the Brandenburg test would be inapplicable. The right to speech is constitutionally guaranteed and can only be restricted when it amounts to a ‘serious evil’. 

Why is a conspiracy theory appealing

Before analyzing whether conspiracy theories should be treated as free speech, it is important to understand the reasons people feel so disillusioned that they start believing what they read on social media. 

Several findings have shown that belief in conspiracy theories is associated with avoiding the established forms of media such as newspapers, television, etc, and having an increased tendency to obtain information through digital media, which primarily includes social media platforms. 

What makes a person believe in a conspiracy theory? Two prominent factors are a heightened sense of reference to oneself and a preoccupation of how others see one, that is, you may be worried about being a target of a powerful entity or group of persons such as the ‘government’. This belief is caused by having a distrust towards the established institutions and believing there is a risk to public health from their concerns. 

A study found that right-leaning individuals had a higher tendency to believe in conspiracy theories. The government has been blamed for creating the pandemic to conceal the economic crash and attempt to increase authoritarianism. This was found to be true for powerful groups such as the government and the pharma companies. 

Conspiracy theories appeal to the general public because of the following reasons: 

Pointing fingers at believable culprits

Conspiracy theories that are widely circulated and discussed always point fingers at the right villain. Such theories have conveniently blamed unfortunate incidents or trends on the believable culprits. An ideal villain makes the story more convincing and appealing than the truth. For example, Roman poisoning conspiracies were likely to be caused by slaves and, upper-class women who were portrayed as dangerous and secretive. A recent theory that surfaced accused Bill Gates of spreading the virus to control the population. The theory was proven to be false and no evidence was found of Gates stating that 3 billion people needed to die. 

Collective anxieties

Every society has its obsession and anxieties such as the population increase of religious minorities, development of rival nations, alien life, mysterious technologies, etc. Conspiracy theories tap into these anxieties and are usually concerned with these themes. Theories like these remain in our minds and are activated by events such as political change. This could further lead to several individuals strengthening their belief in conspiracy theories. For example- The Muslim community was targeted and blamed for spreading the coronavirus in India after the Tablighi Jamaat incident. 

Tribalism

Conspiracy theories also result in stronger social bonds and protect groups belonging to certain ethnicities, tribes, religions, nationalities, castes, etc. They often make us feel superior about the social group we belong to. 

Uncertain situations

When people need answers for some sort of conflict or widespread disease, conspiracy theories are quickly circulated to give the answers people are looking for. 5G networks have been speculated to be bad for our health for years and have been accused of causing cancer, infertility, autism, etc. Despite having no substantial evidence to support these claims, 5G networks have been considered a threat worldwide.  

Address an ambiguity or a mystery 

These theories usually address a prominent mystery or some ambiguity such as the disappearance of Malaysia Airlines flight 370 or the assassination of John F. Kennedy, the former president of the USA. When authorities do not disclose information in the public domain, these knowledge gaps combine with a general mistrust the public is driven straight into believing the claims of individuals who believe they have the answer. It takes a lot of time for government inquiries and scientific reports to be generated and in that time, the public confides in the conspiracy theories that seem to unravel the mystery of a particular event. 

Ulterior motives

Numerous world leaders publicly supported conspiracy theories that also propagated their agenda. A fine example of this would be former US President Donald Trump suggesting that the coronavirus originated in a Chinese lab and his intelligence agencies pointed out there was no concrete evidence for this claim.  

Conspiracy theories are not free speech

The following reasons have been attributed for considering conspiracy theories as beyond the ambit of free speech and a grave concern:

Incitement to violence

According to a Federal Bureau of Investigation intelligence bulletin, the U.S. government perceives conspiracy theories as a substantial domestic terror threat that is “anti-government, identity-based, and fringe political conspiracy theories are very likely to encourage the targeting of specific people, places, and organizations” for potential violence. The FBI stated that several conspiratorial beliefs have been a significant factor in influencing individuals to commit violent acts. 

Conspiracy theories can have an adverse impact in determining the result of the elections and formulating policies. Over 200 incidents were reported against telecom workers in the UK and the Netherlands, a number of mobile telecom masts were set ablaze after it was suspected that 5G was responsible for spreading the virus. 

Conspiracy theories can weaken political participation and incite violence. QAnon, a popular conspiracy theory community, plays a significant role in contributing to violent extremism. Since 2017, Donald Trump has shared many tweets and content from QAnon supporters, increasing the number of people exposed to such theories.  

Negative implications of believing false conspiracy theories

Believing conspiracy theories has certain negative implications, the most prominent being concerns to public health and stability. False information along with the public’s willingness to accept the idea that there are certain shadowy elements in society leads to individuals’ belief in these conspiratorial fictions. Accepting these ideas can not only sway policy but lead to several violent, radicalized, and irrational people. In the 1950s, a popular conspiracy theory that emerged was that fluoridation was a communist plot to dumb down American society. A number of groups against the recommendations of dentists and scientists stopped water fluoridation. As a consequence, there were devastating consequences to public health, and numerous innocents were harmed all across the world. 

Relying on such false information leads to making bad choices and getting disconnected from reality. For example, misinformation spread faster about the Zika vaccine on social media platforms before it was even developed. The vaccine was accused of being developed by unscrupulous pharmaceutical companies and corrupt governments attempting to poison the general public. Measles, a once cured disease, remerged because of the circulation of such theories.

In these trying times, conspiracy theories can further decrease the levels of trust in governmental, health institutions, lower vaccination rates, and less willingness to adhere to the restrictive measures to restrict the spread of the virus. 

False information

Conspiracy theories are usually politically motivated and are towards a specific ethnicity, religious group, caste, etc. Today’s information ecosystem has changed the production, consumption, and dissemination of information altogether. Digital technologies and easy access to social media platforms have resulted in information being shared between the producers and consumers in seconds without any verification. Fake news and false narratives exceed the popularity and engagements of the real, verified news.  

A defamation case was filed against Alex Jones, the host of InfoWars legal scholars wrote that “False speech does not serve the public interest the way that true speech does … and indeed, there is no constitutional value in false statements of fact.”

Therefore, conspiracy theories should not be protected under the First Amendment or Article 19.  

Conspiracy theories are free speech

Conspiracy theories can be considered as free speech because of the following reasons: 

Difficult to identify a conspiracy theory

It is quite difficult to identify and determine what would constitute a conspiracy theory in a time where millions of users share information on their social media handles every day. It might seem obvious as to what content would be classified as a conspiracy theory but it is a difficult task to draw a fine line of distinction between harmless conjectures and conspiracy theories. 

The classification of a conspiracy theory often depends on the predispositions of an individual. For example- Republicans would easily believe a Democratic narrative to be conspiratorial and vice-versa. Millions of tech companies cannot be asked to identify theories and make decisions on whether the proposition is true or not. It is also possible that the government or influential individuals could have a say in making these decisions. 

Difficult to determine false

Conspiracy theories are not necessarily false and could be mere figments of imagination. If they are suppressed by tech companies, investigating vital ideas that could contribute to the welfare of society would not be possible. No such test can be applied to determine their falsity. These theories also help in unraveling the truth of certain ambiguities such as the assassination of President Kennedy.   

Brandenburg v. Ohio standard

Applying the Brandenburg test, public speech cannot be restricted by the government unless it is proven that the speech directly incites violence or produces imminent lawless action or is likely to produce or incite such actions. “Mere advocacy” that was exercised by Brandenburg was protected by the First Amendment. In a similar sense, a harmless theory without the intention and likelihood to cause grave danger to the general public can be construed as free speech. 

Some conspiracy theories are harmless. For example, theories on extraterrestrial invasions, aliens, government cover-ups, etc. A mysterious UFO was witnessed 24 years ago and is still subject to many conspiracy theories. 

Suggestions 

There is a need for such speech to be regulated keeping in mind the welfare of the society. However, a consequence of any such regulation could equip the government with a powerful tool capable of manipulating the thoughts of the public and suppressing any valid claims against their policies. 

Many theorists have argued in favor of the impact of such theories since they could potentially increase accountability, transparency, and social change. However, in my opinion, these theories need to be regulated to not dissuade the public from getting vaccinated and to not encourage negative feelings towards minorities. 

A few suggestions to address the issue are as follows: 

• Enforcement, monitoring, and governance- Three components need to be efficiently implemented to prevent the public from swaying to the absurd theories circulated on the internet- effective enforcement of anti-conspiracy measures, better monitoring, and independent governance. 
• Reducing the virality- The virality of conspiracy theories on the web can be reduced and their impact can be neutralized. 
• Greater transparency and accountability- There needs to be greater transparency and accountability from the scientists, the pharmaceutical companies, the tech companies as well as the media, and the government. This would include informing the public of their mistakes since many theories are about political elites collaborating with pharmaceutical companies to suppress information. 
• Building the public’s trust- Rather than merely asserting their authority, public authorities must focus on building the trust of the public. With an open and transparent government that does not engage in conspiracies and spreading theories to manipulate public opinion and discourse, the need for these theories would be heavily reduced. 
• Understanding the needs of the public- There must also be a deeper understanding of the needs of the public with the changing social, political, and economic circumstances. Focusing on people’s psychological needs and addressing them by employing other means except for conspiracy theories, would reduce the circulation of such theories. 
• Regulating fake news- Fake information especially on ‘WhatsApp University’ needs to be regulated.  

Conclusion

We must understand that sometimes, either due to the news and other content we are consuming, we might believe falsehoods or half-truths. We must engage in critical thinking, especially as the pandemic continues, and consider the risks we are taking for others as well as for ourselves. 

Free speech is a double-edged sword and banning conspiracy theories altogether would not be a viable alternative. It has been half a century since the ruling given in Brandenburg and courts have the opportunity to define the ambit of free speech. It is the dire need of the hour to implement an effective new approach to deal with the upsurge in conspiracy theories.

Conspiracy theories may be under the ambit of free speech provided that they are harmless and do not incite violence. However, they must be regulated to ensure no fake news is circulated and no group of individuals belonging to a particular ethnicity is targeted. 

References

1. https://psmag.com/social-justice/is-a-conspiracy-theory-protected-speech 
2. https://www.bennettinstitute.cam.ac.uk/blog/conspiracy-theory-vs-free-speech-should-we-regulat/
3. https://www.bbc.com/future/article/20200522-what-we-can-learn-from-conspiracy-theories 
4. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6024&context=ylj 
5. https://www.dahrendorf-forum.eu/conspiracy-theories-and-what-to-do-about-them/ 
6. https://www.cambridge.org/core/journals/spanish-journal-of-psychology/article/are-conspiracy-theories-harmless/FA0A9D612CC82B02F91AAC2439B4A2FB 

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