First Amendment Law Review
Helen Norton, The Government's Manufacture of Doubt, 16 First Amend. L. Rev. 342 (2018), https://falrunc.files.wordpress.com/2018/03/falr-volume-16-symposium-issue3.pdf, available at https://scholar.law.colorado.edu/articles/1183/.
“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture doubt and protect their own interest at the expense of the public’s.
In this symposium essay, I examine how the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences. I start with some background on the history of government speech in the United States, a history that reveals the diversity and complexity of the government’s expressive choices. Drawing from historical and contemporary examples, I then identify at least three expressive strategies through which the government can manufacture doubt: through its lies and misrepresentations, through its attacks on individuals and institutions that challenge its preferred narrative, and through its choices to bury or deny access to information that it finds inconvenient or dangerous. I close by briefly considering possible responses to these strategies.
The government’s speech can serve, or instead threaten, deliberative democracy. At its best, the government’s voice speaks truth to power both public and private, and supports or amplifies the voices of the powerless. But government is not always at its best. Our history and continuing experience reveal a variety of ways in which the government's expressive choices can manufacture doubt, distort the truth, and frustrate key constitutional values. In this essay, I seek to identify some of these patterns (both longstanding and new) in hopes that we can better recognize and challenge them when they arise.
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