prior probability

Alternative title: Alexander Hamilton, Meet Michael Jordan!

Alternative title: Happy April Fools’ Day!!!

Alternative title: A brief survey of the anti-market metaphor literature

Note: This is my 14th blog post in a multi-part series on conspiracy theories

Is there a “marketplace of ideas”, and if so, does this market really work? In my previous two posts I have mentioned how many legal scholars and public intellectuals have rejected the “marketplace of ideas” model. In the context of conspiracy theories, one can see why. After all, if truth is supposed to prevail whenever ideas are shared freely and openly, why are bogus conspiracy theories so popular? Broadly speaking, now that I have surveyed the “anti-market” literature, we can identify three main reasons why some scholars/intellectuals reject the market metaphor:

1. Ideas are not goods.

Although Ronald Coase (1974), an economist, famously concluded that no fundamental difference exists between the “market for goods” and the “market for ideas,” other scholars, by contrast, have rejected the analogy between markets and ideas. Alvin Goldman and James Cox (1996, p. 26), for example, conclude that the marketplace analogy is inapt in the domain of speech because “it is really questionable whether messages are goods or products at all,” while Robert Sparrow and Robert Gooding (2001, p. 48) concur with Goldman & Cox (1996) that “ideas are not commodities of the sort ordinarily bought and sold in markets” and propose an alternative metaphor (pp. 54-55): “the garden of ideas.” Similarly, Brazeal (2011, p. 2) emphasizes “structural dissimilarities between a market in more traditional goods and a market in ideas.”

2. Specific types of speech.

Some scholars/intellectuals have rejected the “marketplace of ideas” metaphor with respect to specific types of speech, such as hate speech and racist speech. David Shih (2017), for example, citing the landmark work of Richard Delgado and Jane Stefancic (1992), focuses on hate speech and racist speech and concludes that the marketplace of ideas “fails” because “we cannot make objective choices about racism.” Why not? Because, according to Delgado & Stefancic (1992, p. 1278, citing Bell, 1987), “racism is woven into the warp and woof of the way we see and organize the world ….” But if this were the case, then everyone must be irredeemably racist, and no amount of public policy reforms could alter their pessimistic conclusion. Alas, Shih, Delgado, and Stefancic’s critique of the market metaphor is self-refuting.

3. Specific types of information environments.

Yet others reject the market metaphor with respect to specific types of “information environments.” Claudio Lombardi (2019), for example, explains how the marketplace of ideas is distorted by the advertising revenue business models of social media platforms like Twitter and Facebook. These platforms treat news as a “product” and readers as “consumers” and distort the marketplace of ideas by lumping reliable sources of news together with fake news. According to Lombardi (2019, p. 201), “Algorithms such as those used by Facebook and Twitter are crafted … to show online content without selecting for the credibility of the source. The watchword is instead the ‘effectiveness’ of a post in generating traffic–a loophole that populist movements have used very effectively.” Lombardi (ibid., pp. 202-203) also falls into the ad hominem trap: “But just as in any other market, trade in ideas may be subject to distortion due to … bounded rationality and cognitive limitations.”

For my part, I am not persuaded by any of these criticisms. Aside from falling into the ad hominem trap, Lombardi’s analysis is already outdated, while Shih’s pessimistic analysis is empirically false. If you don’t believe me, ask “Karen.” Today, when someone is caught on video making a racist statement, they are often “cancelled” and subject to strong censure from many quarters. In any case, in my next post I will propose a new way of dealing with fake news and conspiracy theories: a futures market in fake news or “conspiracy theory prediction market.”

Works Cited

Bell, Derrick A. 1987. And We Are Not Saved: The Elusive Quest for Racial Justice. Basic Books.

Brazeal, Gregory. 2011. How much does a belief cost? Revisiting the marketplace of ideas. Southern California Interdisciplinary Law Journal, 21(1), pp. 1–46.

Coase, Ronald H. 1974. The market for goods and the market for ideas. American Economic Review, 64(2): pp. 384–391.

Delgado, Richard, and Jane Stefancic. 1992. Images of the outsider in American law and culture: can free expression remedy systemic social ills. Cornell Law Review, 77(6), pp. 1258–1297.

Goldman, Alvin I., and James C. Cox. 1996. Speech, truth, and the free market for ideas. Legal Theory, 2 (1), pp. 1–32.

Lombardi, Claudio. 2019. The illusion of a “marketplace of ideas” and the right to truth. American Affairs, Spring 2019, pp. 198–212.

Shih, David. 2017. Hate speech and the misnomer of “the marketplace of ideas.” NPR (May 3, 2017), available at https://www.npr.org/sections/codeswitch/2017/05/03/483264173/hate-speech-and-the-misnomer-of-the-marketplace-of-ideas. [permaCC]

Sparrow, Robert, and Robert Goodin. 2001. The competition of ideas: market or garden? Critical Review of International Social and Political Philosophy, 4(2), pp. 45–58.

Note: This is my 13th blog post in a multi-part series on conspiracy theories

As I mentioned at the end of my previous blog post, a rising tide of voices, especially in academia, are calling for direct regulation of social media platforms and other vigorous policy proposals in order to curb the spread of conspiracy theories and other dangerous ideas on the Internet, e.g. QAnon, fake news, etc. Most recently, by way of example, Kevin Roose, a technology columnist for The New York Times, surveyed a group of “experts” about this growing problem. See “How the Biden Administration Can Help Solve Our Reality Crisis,” N.Y. Times, Feb. 2, 2021.

According to Roose, these experts recommend the Biden administration to appoint a cross-agency task force “to tackle disinformation and domestic extremism.” The task force would be led by a “reality czar,” who would coordinate the federal government’s response to conspiracy theories and other forms of “disinformation.” Worse yet, Roose himself agrees with these experts: “I’ve spent the past several years reporting on our national reality crisis, and I worry that unless the [federal government] treats conspiracy theories and disinformation as the urgent threats they are, our parallel universes will only drift further apart, and the potential for violent unrest and civic dysfunction will only grow.”

But who is to judge what constitutes “disinformation”? Do you really trust the government to get this right? If Donald J. Trump, for example, were to win re-election in 2024, who would his “reality czar” be? In any case, even if Roose’s ill-advised and dangerous proposal is never carried out, social media companies are finally beginning to adopt new policies to curb the spread of conspiracy theories. Facebook, for example, has been tweaking its algorithms to slow down the spread of fake news:

“Reducing the spread of false news on Facebook is a responsibility that we take seriously. We also recognize that this is a challenging and sensitive issue. We want to help people stay informed without stifling productive public discourse. There is also a fine line between false news and satire or opinion. For these reasons, we don’t remove false news from Facebook but instead, significantly reduce its distribution by showing it lower in the News Feed.” (See here and here.)

Alas, I object! Simply put, I have a deep philosophical objection to all these private and public calls for action: they stifle speech and suffocate the marketplace of ideas, i.e. the idea that best way to deal with false ideas is with more ideas. According to our classical liberal tradition and John Stuart Mill (see below), the best test of the truth of an idea depends on its direct competition with other ideas, not on the opinion of a censor or a “reality czar” or a secret algorithm or whatever. The rise of conspiracy thinking in the Internet Age, however, is said to pose a direct challenge to this ideal, and a growing chorus of legal scholars and public intellectuals are openly rejecting Mill’s market metaphor. Stay tuned: I will review and respond to this misguided critique in my next blog post …

Note: This is my 12th blog post in a multi-part series on conspiracy theories

In this post I will expand on Richard Posner’s economic analysis of conspiracy law on pp. 230-231 of his magnum opus: Economic Analysis of Law (7th edition, 2003). (Full disclosure: along with Milton Friedman and Ronald Coase, Dick Posner, pictured below during his heyday at the University of Chicago, is one of my intellectual heroes.) In summary, Posner identifies three key features of conspiracy law from a “law & economics” perspective:

1. Criminal conspiracies are more dangerous than one-man crimes. Why? Because, according to Posner, conspirators are able to specialize and take advantage of the division of labor–“e.g. posting one man as a sentinel, another to drive the getaway car, another to fence the stolen goods, etc.” (As an aside, the same thing could also be said of civil conspiracies, such as agreements to commit fraud. In both cases, the division of labor and specialization of nefarious tasks among the conspirators make it more likely that the conspiracy will succeed.) This Posnerian insight about the dangers of conspiracies, dangers due to the efficiencies resulting from the division of labor, might explain the special place that conspiracy theories have in popular culture, why such myths are able to capture the public’s imagination.

2. “Conspiracy” is a separate crime. That is, from a purely legal perspective, a conspiracy to commit a criminal act generates criminal liability whether the conspiracy succeeds or not. For Posner, the rationale for this special treatment of conspiracies–i.e. the fact that a conspiracy is a separate offense regardless of whether the conspiracy succeeds–is based on point #1 above: the conclusion that conspiracies are more dangerous than one-man crimes. Again, this Posnerian insight might explain why conspiracy theories are so popular. Even if a particular conspiracy is unlikely to succeed–indeed, even if the conspiracy is entirely fictional–the possibility that a private plan or hidden agreement might exist might be especially alarming to many people. Just as no one likes it when others about you are talking behind your back, no one likes it when some group of individuals are secretly scheming to accomplish some illegitimate end.

3. Posner also mentions that some of the most serious crimes, like the crime of insurrection, can only be committed by conspiracies. Consider the January 6 Capitol Hill riot, for example. On January 6, 2021, thousands of angry Trump supporters marched up to the main U.S. Capitol Building in Washington, D.C., where the Congress was in the process of certifying the Electoral College results of the 2020 presidential contest. Many of the protestors apparently sincerely believed that the 2020 election had been stolen from President Trump, and several hundred protestors stormed the west side of the capitol building and interrupted the counting of the Electoral College votes for several hours. Had the protestors (conspirators?) succeeded in stopping the Electoral College vote count, they might have prevented a peaceful transition of power from Donald J. Trump to Joe Biden.

In other words, we should take conspiracy theories seriously! But how should we respond to conspiracy theorists? Alas, support for the “marketplace of ideas” model of free speech is starting to erode among many legal scholars and other public intellectuals. Worse yet, the “solutions” being proposed by these scholars and intellectuals are far worse than the dangers of conspiracy thinking. In my next few posts I will do three things: I will summarize these proposed solutions and explain why they are bad; I will defend the “marketplace of ideas” metaphor; and I will conclude by proposing my own solution to conspiracy thinking: the creation of a prediction market in conspiracy theories!

Note: This is my eleventh blog post in a multi-part series on conspiracy theories

What separates a legitimate claim of “conspiracy” from a fringe or far-fetched “conspiracy theory” (like the so-called “plandemic”) or a dangerous alternate reality “conspiracy myth” (like the Weimar era stab-in-the-back legend)? After all, conspiracies can be real. In fact, conspiracies occur all the time. Consider, for example, the actress Felicity Huffman and the infamous 2019 College Admissions Scandal. Although, legally speaking, Huffman, along with dozens of other wealthy parents, was charged with mail fraud and honest services fraud, one could argue that she also committed the crime of conspiracy when she paid a third party to arrange for a ringer to take her daughter’s college admissions entrance examination. (By the way, Huffman’s slap-in-the-wrist ten-day jail sentence was way too lenient in my opinion.)

Given the fact that conspiracies are, in fact, quite ubiquitous–and given that my area of expertise is law–, why don’t we try to look at conspiracy theories through the eyes of the common law and the modern crime of conspiracy? Specifically, instead of asking whether a given conspiracy theory is simple or falsifiable or instead of trying to measure the level of orthodoxy of a given discourse, we should be asking the following series of practical or legal-inspired questions:

• Is there an agreement between two or more conspirators?
• Who are they and when did they reach this agreement?
• And is their agreement an illicit or immoral one?

At common law, the crime of conspiracy required an illicit agreement between two or more persons, i.e. an agreement to commit a crime or a civil offense, such as murder or fraud.[1] Under modern conspiracy law, by contrast, an illegal conspiracy requires proof of an illegal agreement as well as an overt act. By way of specific example, consider the general federal conspiracy statute, which is codified at 18 U.S.C. § 371,[2] which defines a conspiracy as follows:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

In other words, the conspirators must not only intend to achieve the goal of the conspiracy; one or more of the conspirators must also commit an “overt act” in furtherance of the conspiracy.[3] Also, under both the common law and modern conspiracy law, a conspiracy is considered an “inchoate crime”; that is, a conspiracy need not be successful in order to constitute a crime. Why? Because it is the illicit agreement itself that it is illegal, regardless of whether the conspiracy is successfully carried out beyond the commission of an overt act in furtherance of the conspiracy. This special treatment is significant for several reasons; I will explain why in my next post.

 

[1] Today, this underlying crime or civil offense is referred to by courts as the conspiracy’s “target offense.”

[2] June 25, 1948, ch. 645, 62 Stat. 701; Pub. L. 103-322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147. In addition to this general conspiracy statute, many other federal statutes contain anti-conspiracy provisions.

[3] The “overt act” itself need not be an unlawful or wrongful act. Either way, this requirement is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005).

I am interrupting my multi-part series of blog posts on conspiracy theories to share this report by James Vincent (via The Verge), which is titled “The UK’s new £50 note celebrates Alan Turing with lots of geeky Easter eggs.” As it happens, I am a huge fan of Alan Turing, and even wrote a paper in his honor, “The Turing Test and the Legal Process“, during one of my trips to Tortola in the British Virgin Islands–shout out to my wife’s generous cousin Omonike Robinson-Pickering for hosting us during our many stays in the BVI. (By the way, a law professor at the University of Houston, Seth Chandler, once wrote a really mean-spirited and vindictive review of my Turing Test paper when I was going up for tenure. I will track down his nasty review and post it here soon.)

Note: This is my tenth blog post in a multi-part series on conspiracy theories

In this post, I will frame conspiracy theories as a special type of Wittgensteinian “language game.” Although the enigmatic Ludwig Wittgenstein himself used the technical term “language-game” to convey many different ideas, one of his key language-game insights is the special relationship between the domain of language–the way in which we talk to one another in different contexts–and the domain of games, including both games of skill and games of luck. Specifically, Wittgenstein draws an analogy between languages and games–between “speaking” and “playing”–and he concludes that languages are like games in that both are rule-governed activities. That is, whether one is speaking a language or playing a game, the rules of a language are analogous to the rules of a game because, in both cases, one is engaged in an activity that is governed by general rules and social conventions.

For Wittgenstein, saying something in a language is like making a move in a game; That is, the meaning of words, concepts, sentences, etc. depends on the language game in which such words, concepts, etc. are being used. Among other things, Wittgenstein gives the example of the word “water.” This word could be used as a request or an order, i.e. to ask someone to bring the speaker a glass of water. Or it could be used as an answer to a question. It could even be used as part of a code by members of a secret society. However the word “water” is used, it has no meaning apart from its use within a language game. (See slide below.) In Paragraph 23 of the Philosophical Investigations, for example, Wittgenstein presents a long laundry list of examples to illustrate “the multiplicity of language-games”:

• Giving orders, and obeying them –
• Describing the appearance of an object, or giving its measurements –
• Constructing an object from a description (a drawing) –
• Reporting an event –
• Speculating about an event –
• Forming and testing a hypothesis –
• Presenting the results of an experiment in tables and diagrams –
• Making up a story; and reading it –
• Play-acting –
• Singing catches –
• Guessing riddles –
• Making a joke; telling it –
• Solving a problem in practical arithmetic –
• Translating from one language into another –
• Asking, thinking, cursing, greeting, praying.

So, why not add “conspiracy theories” and “alternate realities” and “political myths” to this already extensive list of language games? Although we can only wonder what Wittgenstein himself would have thought of this possibility, it turns out that conspiracy theories and conspiracy thinking generally seem to resemble many of the specific language-games in Wittgenstein’s long list, such as speculating about an event, making up a story, or reporting an event, depending on the use a specific conspiracy theory is being put to.

Furthermore, this language-game lens is intriguing for several additional reasons. To begin with, we avoid the ad hominem trap I mentioned in one of my previous posts; i.e. we don’t need to diagnose or otherwise impugn the mental health of conspiracy theorists. Instead, we ask a completely different question, What are the rules of the conspiracy theory game? Also, although the rules of language-games are “socially constructed,” to borrow the contemporary term of art from our previous post, the Wittgensteinian approach is arguably not self-refuting in the same way discourse theories are. Why not? Because one is not bound by the internal rules of the language-game that is one is studying as an observer. Instead, one is just trying to figure what those rules are. (In other words, we can study conspiracy theories using this Wittgensteinian lens without having to believe in them.)

Yet, aside from clarifying the different uses of the phrase “conspiracy theory” (see Wittgenstein’s laundry list above), what else, if anything, is gained by comparing conspiracy theories to a language game? Alas, the Wittgensteinian sketch of conspiracy theories presented here poses many more questions than it answers. After all, if a conspiracy theory is like a game, a game with its own internal logic and its own set of rules, what are these rules? What does this internal logic consist of? Although these questions are certainly worth considering, I will take an entirely different and new approach in my next set of blog posts starting next week. Specifically, instead of getting bogged down in the internal logic of conspiracy theories–a game that, in my opinion, is not worth playing–, I will examine such myths from an Anglo-American “common law” perspective. After all, “conspiracy” is a common-law crime, so our traditional legal norms and rules might shed some light on this sordid and shadowy corner …

Alternative title: Conspiracy theories, discourse, and power

Note: This is my ninth blog post in a multi-part series on conspiracy theories

I sincerely apologize in advance for this blog post. Personally, I am not a big fan of sociology or of “social constructionism.” Nevertheless, that said, for purposes of completeness–of leaving no conspiracy-theory stone unturned, so to speak–I am going to put on my post-modern social construction hat today. More to the point, I will argue that many, if not most, conspiracy theories, especially far-fetched ones, are social constructs. That is to say, the secret machinations and alternate realities that these theories purport to describe don’t really exist, except in the minds of the conspiracy theorists themselves. Accordingly, what if we were to extend discourse theory or “Foucauldian discourse analysis” to conspiracy theories?

Discourse theory refers to an entire family of research techniques and qualitative methods of linguistic analysis. (See bottom image by Susan Herring.) In summary, however, it suffices to say that the central focus of discourse theory, as developed by such intellectual giants as Michel Foucault and Jacques Derrida (both of whom are also pictured below), is on the non-linear relationships between language, knowledge, and power. To oversimplify, for Foucault, Derrida, and their post-modern followers the term “discourse” refers to the many different ways in which we express knowledge and embody power relationships. On this Foucauldian view, then, conspiracy theories are just a special type of socially constructed discourse: a subversive form of social knowledge existing alongside many other competing forms of knowledge.

Further, this Foucauldian view of conspiracy theories contains an epistemologically novel and revolutionary insight, one that is especially relevant to the murky and shadowy world of secret plots and concealed cabals: truth is a subjective and contested concept. That is, “truth” is rarely, if ever, an absolute value; the truth is always up for grabs. (Compare the notion, which is popular today, of “my truth.”) The focus of discourse theory is thus on who is doing the speaking because a given “truth” (my truth or yours?) will often depend on who the speaker is, not just on what he is saying. On this Foucauldian view, the shadowy and subversive nature of most conspiracy theories are features, not bugs.

More importantly, given the subjective and contested nature of truth, the probability or truth value of any given conspiracy theory is beside the point. What really matters is the identity of the people or social groups who happen to believe in that theory as well as the reasons for their subjective beliefs, however fanciful or far-fetched those beliefs are. In other words, instead of asking, Is X Conspiracy Theory true?, we should be asking an entirely different set of questions:

• Which individuals or groups believe in X Conspiracy Theory?
• What are the reasons for or logical structure of these subjective beliefs?
• And, most importantly, what power relationships do these beliefs embody?

Although these types of research questions are certainly fruitful ones, post-modern discourse analysis and social constructionism generally share a fatal flaw: they are self-refuting! After all, if truth and reality are socially constructed, mere forms of discourse, then so too are the results of discourse analysis and social construction theory! In my next post, I will introduce and discuss another way out of this trap: the idea of a Sprachspiel or “language-game,” a concept that appears many times in Ludwig Wittgenstein’s seminal work, Philosophical Investigations.

Note: This is my eighth blog post in a multi-part series on conspiracy theories

What if conspiracy theories were in reality a type of cultural replicator or “meme” in the Richard Dawkins’ sense of the term? Dawkins, an evolutionary biologist who was the first to propose a “memetic” theory of cultural evolution in his book The Selfish Gene (1989, pp. 192-201), coined the word “meme” to describe the smallest unit of cultural transmission. According to Dawkins: “Just as genes propagate themselves in the gene pool by leaping from body to body via sperms or eggs, so memes propagate themselves in the meme pool by leaping from brain to brain via a process which, in the broad sense, can be called imitation.”

By way of illustration, textbook examples of such cultural memes include “tunes, ideas, catch-phrases, clothes fashions, ways of making pots or building arches.” (See Dawkins (1989), p. 192.) So, based on Dawkins’ memetic theory of cultural evolution, one could argue that conspiracy theories themselves are just another type of cultural meme, one that propagates itself in the meme pool of human culture by leaping from brain to brain via a process of imitation. After all, once a memorable conspiracy theory like the Weimar stab-in-the-back myth is created, it often assumes a life of its own and starts to spread like wildfire.

In The Selfish Gene, Dawkins identifies three essential features of all successful “replicators”: longevity, fecundity, and copying-fidelity. Whether we are describing biological replicators like genes or cultural ones like memes, for evolution to occur the replicator must live long enough to make sufficient copies of itself, and these copies must be high-quality ones. From a meme’s perspective–i.e. not from the perspective of any particular person who falls for a given conspiracy theory, but from the perspective of the individual meme itself–the successful propagation of any given meme or conspiracy theory does not depend on its underlying truth value; instead, successful propagation of a meme depends on its ability to replicate or make copies of itself.

Moreover, one of the advantages of this meme’s-eye view of conspiracy theories is that it explains why far-fetched and fringe theories are more likely to propagate in the meme pool of human brains. (In other words, it is not good enough to say that conspiracy theories and other memes have psychological appeal. What we really need to know is why conspiracy theories have such psychological appeal. Cf. Dawkins 1989, p. 193.) Simply put, the more “crazy” or shocking a given conspiracy theory is, the more likely it is to grab the attention of a person’s brain and to spread to other brains, since people are more likely to share memorable memes than run-of-the-mill ones.

Nevertheless, Dawkins’ “meme’s-eye” view of conspiracy theories poses a vexing question. What makes far-fetched or fringe conspiracy theories more memorable or more likely to spread in the first place? After all, just as more plausible scientific theories have generally replaced less plausible ones in the domain of the natural sciences–think of astronomy gradually replacing astrology or alchemy giving way chemistry–why doesn’t this trend carry over into the domain of memes? Another weakness with Dawkins’ meme’s-eye view–aside from the question of the ontological status of memes!–is that Dawkins’ approach assumes that people are just passive receptacles of memes. In reality, we have some agency in this matter: we get to decide which conspiracy theories to believe in! Accordingly, I will describe an alternative approach to conspiracy theories–an approach based on the work of Michel Foucault, who was one of the most influential intellectuals of the 20th Century–in my next post.