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Disinformation: Public Enemy Number One

Wednesday, June 23, 2021
Scott Fulton, President

Scott Fulton

President, Environmental Law Institute

One of the great things about working at ELI is the regular infusion of fresh perspectives. At any given time, about 20 percent of the staff consists of students and recent graduates, most of whom are with us temporarily. The applicant pool for these jobs is incredibly competitive, guaranteeing that some of the brightest young minds in the country will always be in residence at the Institute.

Question marksNot long ago, one of our new research associates asked me about something I had written in this column several years ago. My piece had posited that the enemy of environmental protection was not any particular actor or sector, but rather bad decisions — wherever they are made. His question: “In view of recent developments, do you still believe that bad decisions are the primary enemy of environmental protection?”

I thought for a moment and offered a qualified “yes,” as I now see another very dangerous enemy in the mix: Disinformation. Some pundits somewhat casually describe this time as the “post-truth era,” but for those who care about the rule of law, the increasing propagation and uptake of manufactured deceit can never be a casual matter. This is a problem much bigger than just environment, but it affects decisionmaking in our realm as readily as in any other. And, more to the point, disinformation ultimately erodes public confidence in the institutions and mechanisms that define our system of government and puts at risk our integrity as one of the world’s leading democracies.

The insurrection and storming of the Capitol earlier this year is a wake up call to the threat posed by this phenomenon. Ironically, while the road through the election process last fall was for sure bumpy, our system of checks and balances functioned more or less as designed for purposes of resolving the various questions that had been raised about election integrity. The courts took the lead in crunching truth for us.

As we saw, there are a number of distinctive features of judicial process that enable courts to separate truth from fiction and push toward the best view of operative facts. Counsel are expected to ground their arguments in concrete evidence, not belief or opinion, and to observe the duties of candor to the court that are policed under standards of conduct and bar association rules. And judicial decisions are generally subject to appeal. This system both encourages fidelity to facts and allows for correction of judicial error.

And the system worked as it should in the election irregularity cases, with the courts playing their vital role in differentiating between non-credible arguments and those supported by evidence, ultimately leading to decisive rejections of the numerous election irregularity claims. The resolution of these claims by the courts — the institution that our constitutional system relies on to resolve such questions — should have brought closure.

It of course did not. The narrative embraced by the Capitol mob was informed not by what happened in the courts but rather what was said on the courthouse steps, which often bore little semblance to what was presented before the bar or the truths that emerged through the proceedings.

This out-of-court spin was then reinforced by politicians who either embraced it or tolerated it. It gained further momentum through the echo chamber of social media and sympathetic news outlets, ultimately leading to an unthinkable assault on Congress. The willingness on the part of so many to ignore judicial resolution of the matter is a rule of law setback of a colossal scale, as is, more generally, the systematic and intentional use of disinformation as a tool for promoting public uptake of a demonstrably false narrative.

Manifestations of this sort promise to repeat and intensify in the absence of intervention. Law and lawyers will be important contributors to what comes next. While some self-correction is occurring through traditional tools like defamation suits, we will likely need new legal tools and policing mechanisms to stem the growing tide of willful deceit and bring meaningful accountability to purveyors of disinformation that damages the public interest and threatens the foundations of democracy. We somehow, someway, need to get back to a shared understanding of objective fact. There really is no choice in this, no space for legitimizing non-truths.

Disinformation is not just the enemy of the environment — it has become public enemy number one.

This blog originally appeared in the May/June 2021 issue of The Environmental Forum and is republished with permission.

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.