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Helen Norton's fine book demonstrates the multiple ways that government officials can violate the Bill of Rights and the Fourteenth Amendment through their speech. She also canvases the often limited judicial remedies available for these violation. In this post, I want to take up where her book--and Sonja West's and Nathan Cortez's recent posts--leave off. I will focus on situations in which there is no likely judicial remedy but in which government speech threatens important democratic and constitutional values.
I am speaking, of course, of government propaganda. The term "propaganda," however, is contested, and has many meanings. In its most general sense, propaganda is simply the propagation of persuasive material, usually in a one-sided or devious manner. In this post, however, I will consider three different, and somewhat narrower, conceptions of propaganda. Each is relevant to Norton's arguments about government speech and the Constitution.
I. Non-transparent government speech
Over the years, the United States Congress has passed various bills and appropriations riders that are designed to prevent federal official from engaging in "propaganda." (Courts have construed the term narrowly.) These laws mostly aim at enforcing Norton's transparency principle--the idea that government officials should not use nominally private citizens as mouthpieces for what are actually government messages. This, therefore, is the first, narrowest meaning of "propaganda": situations in which the government uses private citizens as mouthpieces for its messages without adequate disclosure.
II. Systematic campaigns of government fabrication and lies
Obviously, this first definition does not capture much of what people generally think of as "propaganda." Consider, for example, situations in which the government lies or engages in fabrications in order to mislead the public, avoid political embarrassments, and keep itself in power. Many people would call these government strategies "propaganda." We have to be careful, however, because government officials often mislead the public and hide things from them. Therefore, this second account of propaganda requires more than occasional puffing, euphemism and concealment; it refers to a sustained program of government lies and fabrications designed to bolster legitimacy and maintain political power. The Johnson and Nixon Administration's lies about the Vietnam War, and the George W. Bush Administration's dissembling leading up to and during the Iraq War, might be examples of the second type of propaganda.
Some programs of government lies and fabrications will fall into the situations that Norton describes in her book: they will violate an individual's due process or free speech rights, or they will violate the Constitution's Establishment, Due Process and Equal Protection Clauses. But most of these lies and fabrications--like those just mentioned above--will not.
III. The structural role of the press in countering government propaganda
In the latter case, there is no judicial remedy, and the remedy, if one exists at all, is political and structural. The public can throw the rascals out of office. But in order for that to happen, the public has to know about the government's falsehoods and fabrications. That means that a crucial part of the structural remedy for government propaganda is a strong and viable free press that is able to investigate and report on the government's lies and falsehoods. In this sense the press forms a crucial part of the constitutional scheme. Without a viable free press, the structural remedy for government propaganda won't work--or won't work adequately.
This structural remedy, however, is only successful if the press is an economically viable institution with adequate resources for investigative journalism, and with adequate methods for obtaining access to information about government misconduct. This adequacy is not guaranteed, either by the Constitution, or by economics. And the more perilous the financial condition of the press--because of changing economic conditions, the duopoly of control of digital advertising enjoyed by Facebook and Google, and the increasingly dire predicament of local newspapers--the less we can be confident that the press will actually perform its structural function. In fact, the country increasingly contains "news deserts"--areas without local newspapers able to inform the public about local politics. Not surprisingly, these news deserts correlate with increasing public corruption.
Moreover, the press not only has to have the resources to investigate, but it must also be an independent and trustworthy institution. It must be an institution that has not been co-opted or cowed by the government. To the extent that the newspapers and other media are bought up by the government's cronies, or successfully chilled by lawsuits and threats of lawsuits, the press will be less able to perform its structural function of rebutting government propaganda and holding government to account.
Finally, the press must not only be trustworthy and have adequate resources, it must also actually be trusted by the public. For if the public does not trust reports from the press, the press will not perform its function of checking government propaganda and falsehoods.
IV. Propaganda as government speech that undermines the structural role of the press and promotes constitutional rot
All of this brings me to a third sense of the term "propaganda." This type of propaganda is more than merely false information spouted by the government to make it look good and its adversaries look bad. This propaganda is the kind that we often see in authoritarian and totalitarian regimes, or in once-healthy democracies that are now sliding into illiberalism and disrepair. This third kind of propaganda operates by undermining the structural checks that a free press plays in a democratic republic. Many different kinds of propaganda can lead to what I call "constitutional rot," but this third kind of propaganda is the most deeply connected.
How does government use propaganda to undermine republican government and the structural function of the press in a representative democracy? Well, the press can only perform its structural function of checking government lies and fabrications if people trust it and regard it as worthy of their trust. Thus, this third kind of propaganda operates by making people distrust the press and those sources of expertise that might counter or criticize the government. The strategy operates by portraying the press--or at least the portion of the press that is critical of the government--as alien, dishonest, effete, elitist, and untrustworthy. This form of propaganda makes people doubt the press--because, politicians argue, the press is a lying press, an elitist press divorced from the concerns of real people--a press that is, to quote a familiar phrase, the enemy of the people.
The point of this strategy of propaganda is to ensure that when the press reports lies and other malfeasance by the government, people do not believe the press and think that the members of the press are the ones who are lying and corrupt. Because they do not believe the press, they discount its reporting, and so the press becomes like the mythical figure Cassandra, who had the ability to predict misfortune but was never believed.
This strategy of government propaganda aims at more than the press, of course. More generally, it seeks to sow distrust and division in society so that experts who criticize the leadership will not be believed. The goal is to make everything disputable, so that the opinions of experts are distrusted, especially when they are inconvenient to politicians.
This strategy of propaganda--which has been adopted in many different countries--seeks to divide society into us and them: the honest, real, authentic people of the country, and the others who are not honest, genuine, or real, who consist of foreigners and snobbish elites who look down on the common people and demean them, and who therefore cannot be trusted. This latter group of arrogant elites includes, not coincidentally, the elitist lying press, who unfairly criticize the government, the party and the leader, and who want nothing more than to destroy the government. This strategy of propaganda operates both as a strategy of division into "us" and "them," and as a strategy of division between an honest people and a lying press.
Because everything becomes a matter of dispute, and because the mainstream press cannot be trusted, people will tend to trust those who they think are most like them, and those who belong to their political party or share their political ideology. Human beings are more likely to trust those who they think are like them in the first place, and so what this third kind of propaganda does is to exacerbate and even pervert those human tendencies. It uses division and partisanship in order to keep the leader's followers from trusting the leader's critics. It seeks to undermine sources of knowledge and expertise that transcend party or group, so that people trust and are willing to trust only people in the same party or group. In short, this strategy of propaganda exacerbates tribalism to produce tribal epistemologies. It seeks to engender distrust and division that helps make politicians or the government impervious from criticism.
It is not necessary for leaders to demonize the entire press to achieve these effects. Quite the contrary, leaders will demonize only that part of the press that is not already co-opted and effectively allied with them. In fact, it is extremely useful to have nominally private organizations repeat the government's fabrications, act as cheerleaders for the government, and make excuses for the government, while simultaneously attacking the mainstream press and accusing it of elitism, distortion, and perversity.
Having a co-opted or allied press gives the leader's followers a trusted source of news and information. It also helps reinforce the leader's message, and the social divisions the leader seeks to maintain. This last point connects the third conception of propaganda--fomenting social division and distrust--with Norton's primary concern in her book--using private parties as mouthpieces for the state.
This third strategy of propaganda has been used repeatedly in different countries around the world as democratic institutions slowly decay. Sadly, these strategies have also sprung up in the United States, and we have seen how they work in the hands of an able master of the genre.
The judiciary is unlikely to do anything to remedy this form of propaganda. It is very difficult to show how a judicial remedy could be fashioned. Instead, the only available remedy is the power of the press to counter propaganda with truthful reporting. The problem, however, is that this third form of propaganda operates by making that structural remedy unavailing. The leader's goal is to divide the country so that the leader's supporters do not trust the press and therefore do not believe or care about the press's' criticisms of the leader or his government.
When the press is not believed, a major check on government misbehavior and corruption is removed. Then the only remedy is a terrible one--the possibility that the leadership will become arrogant and will behave so badly that people's lives will be adversely affected, and reality will break through the facade. Then the propaganda does not work as well, and the leader's spell is dissolved.
Donald Trump's presidency has been deeply corrupt and incompetent, but his mastery of propaganda --along with a healthy economy--have so far kept him insulated from accountability. Through blatant lies, manufactured controversies, and divisive rhetoric, he has developed a powerful form of political propaganda that has bound his followers ever closer to him, and turned the members of his party into spineless sycophants.
But the situation has changed drastically in only a few weeks. We are in the midst of a pandemic, and markets have cratered. The economy is slowly shutting down, and the country seems headed for a deep recession. People's lives and fortunes are now deeply threatened in ways they had not been before during most of Trump's presidency.
When the economy is humming along, and unemployment is low, many people don't care all that much about the latest scandals in Washington. But when both health and livelihoods are at stake, people may grow impatient with con artists and carnival barkers. Suddenly, what is actually true and what is actually not true matters. People may have renewed reasons to trust experts and those news organizations that can accurately investigate and report what is happening.
Will the current pandemic and economic crisis undermine Trump's skillful use of propaganda? Will they cause reality to break through? The current crisis could help restore people's faith in competent government and belief in a common good. Or it might cause people to become ever more isolated, suspicious, and distrustful. The past three years may have poisoned our democracy beyond repair. Or Americans may rise to the challenge, preserve their lives, and restore their democracy. Only time will tell.