Let’s Stop Investing Rhetorical Flourishes with Legal Weight 

In May of 2009 President Obama declared that “my single most important responsibility as President is to keep the American people safe”. When his administration released its National Security Strategy a year later we were told that his “Administration has no greater responsibility than the safety and security of the American people.”

And a year after that, in a document outlining his administration’s National Strategy For Counterterrorism the president’s team recycled the same claim saying the President “bears no greater responsibility than ensuring the safety and security of the American people.” 

I guess for some out there this is an appealing assertion. Indeed, you can be sure it was market-tested by his pollsters before being rolled out to the public for the first time. 

However, it suffers from one big problem. 

It’s simply not part of any description of the president’s duties as described in the Constitution or his oath of office. According to those controlling documents the only things meriting special presidential efforts to insure their security or safety are the inherent rights of citizens as delineated in that very same Constitution. 

My guess, however, is that if you were to ask a broad cross-section of people about the claims made by the Obama administration regarding the US president’s principle responsibility, very few would find them at all objectionable or off-key.

And therein lies the problem. 

To present the president and the presidency and institutions designed principally to “keep us safe,” and to use the bully pulpit to hammer that notion into a de facto social reality through strategically-designed repetition is, in effect, to alter (or try to alter) most citizens’ basic understanding of their relationship to government. 

In this particular case the campaign is designed to open them up psychologically to an acceptance of a key precept of a form of government this country was founded to oppose, feudalism, in that it presumes that citizens are, and must always be, dependent on those at the apex of the system of social power to guarantee their physical security, and that this promise of security will be “paid for” by the cession of individual citizen liberties to these already powerful, would-be protectors. 

This practice of creating new, roundly-subscribed “legal” precepts through extra-legal culture-planning campaigns is not new. However, it has been used with ever greater frequency and effectiveness by our governmental elites since the September 11^th attacks. 

For example, the Bush administration rhetorically generated a simulacrum of a “legal” process for treating and judging prisoners at Guantanamo that was not fundamentally delimited by the guarantees inherent in US, US military, or International law. 

Rather, the so-called Guantánamo Bay tribunals were nothing more than an ad hoc invention of a small group of Pentagon planners designed to make Americans and people around the world believe that “justice” was being meted out at what was, in fact, a largely lawless interrogation and torture facility. 

But that did not stop the great Varnisher-in-Chief, Barack Obama, from standing in front of a glass-encased copy of the Constitution at the National Archives in May of 2009 and making a long impassioned proclamation about how he had ended the unconstitutional practices carried out by the Bush Administration in the so-called War on Terror such as those at Guantánamo, a peroration he ended with the following pearl: 

But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.  

Get it? 

There will be due process for everyone rounded up by the US and brought to be mistreated at Guantanamo…except when we decide that there won’t. 

No habeas corpus. No trial. Continued life in chains for you. 

Emboldened by Congress and the press’ inability to recognize the patent and argument-crushing contradiction in that speech, he sent Attorney General Eric Holder out in March of 2012 to argue with a straight face that the killing of an American citizen (and his underaged US citizen son) believed to be sympathetic to Al Qaeda through an overseas drone attack was in complete accordance with the “due process” provisions of the US Constitution! 

Again, with the exception of a few lonely voices, the press and Congress accepted this absurdly illegal “legal” doctrine that effectively licenses the government to kill its own citizens whenever a small group of national security figures believes it is in their interests to do so. 

Given the generalized press and citizen indifference to the distinction between a ratified legal precept and oft-repeated rhetorical constructs, we should not be surprised by the accelerating elite attempts to create and sell such legal fictions. 

During the dictatorial state of exception commonly referred to as the pandemic, ,government officials invoked (and sadly most citizens obeyed)  CDC guidelines  and  recommendations as if they were settled  federal laws.

Now, the most consequential entries in the growing field of verbally generated pseudo-law are the terms “misinformation” and “disinformation”, two rhetorical inventions that are being tossed around by important (ok, at least prominently platformed) public figures as if they were had long-since been ratified by case law,  and thus should play an important role in public debates on free speech and the free flow of information.

To speak of misinformation or disinformation is to speak implicitly, by means of the pejorative prefixes dis- and mis-, of the existence somewhere of information that is pristine in the sense of accurately and completely representing a given slice of reality. 

Such a premise, however, flies in the face of the most basic principles of modern linguistics, which hold that there is never a perfect correspondence between a word or phrase and the thing it is supposed to represent and that, moreover, the relationship between the sign (the word or phrase) and the signified (the slice of reality being described) will often change in response to the contextual armature within which it is embedded at any given moment.

So, if “information” is itself always unstable and subject to endless reinterpretation over time, how can it stand as a foil for something being presented as an alteration of its own ontology? It can’t, as only a completely fixed and stable “form” can said to be “de-formed.” 

But the more important disqualification of the use of terms “misinformation” and “disinformation” is, of course, found at the level of constitutional law. 

The Founders of this country knew all too well what it meant to live in a culture where the flows of information were heavily mediated by the ideological preferences of the ruling classes; that is, where those with great power could effectively label some information “good” and “legitimate” while consigning the rest of it to the realm of the corrupt or blasphemous thinking. And they wanted no part of that game of top-down canon making, and hence control, in our public spaces. 

This is why they wrote and ratified the First Amendment, whose wording could not be any clearer or unambiguous: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

It goes without saying, or at least it should, that the Founders provided no palpable mechanism for the suppression of what some might consider false or misleading speech because they: 

a) realized that it is not always easy to know what is true and false (see discussion of the inherent instability of the sign-signified relationship above) and that notions of the same vary from person to person and sometimes even minute to minute. 

b) believed that to ensconce a person or a group of persons as the final arbiters of truth always leads to abuses of power. 

c) trusted that, if provided with enough information and the ability to engage freely in debates with others, most citizens would come to sensible solutions about how to spend their political capital in the public arena. 

In short, for the Framers of our Constitution, there was only information, the usefulness or truthfulness of which would be determined—always with an understanding of the essentially contingent nature of such qualifications—over time through exercise of the collective discernment of the population. 

Surely a legal scholar like Laurence Tribe knows all this in much greater detail than I ever will. 

And yet, as a superb editorial published in this space last Sunday points out, Tribe, like a whole host of public prominent public figures now present the need to fight “disinformation” and “misinformation” as existing in a relationship of relative value, vis-a-vis the protections of free speech included in the First Amendment.

But no such relationship, with its implied call for the implementation of “reasonable” trade-offs between the need to insure the free flow of ideas and to protect people from mis- and disinformation, exists under our system of law. 

Like Bush and Obama before them, Tribe, and the Biden administration for which he so often speaks are trying, through wide and forceful media repetition, to elevate a rhetorical flourish to the level of legal construct in the absence of any legislation or case law ratifying it as such. 

So, what should we do in the face of such audacious intellectual and moral dishonesty? 

As believers in free speech we cannot, nor would we want to, stop them from doing what they’re doing. 

What we can do is stop imbuing their terms with any sort of legitimacy. 

How? By consistently pointing out that these terms are absolute nullity as legal concepts and, perhaps more importantly, refusing to employ them in our own patterns of speech. 

Like new consumer products, new terms and words are subject to an informal and spontaneous system of reviews when thrust into the linguistic spaces we inhabit. Each time we decide to employ a newly invented or newly repurposed term we are, in effect, voting on it and the set of semantic associations currently attached to it. 

And this is—it’s important to bear in mind—regardless of whether we share or believe in our intellectual heart of hearts in the accuracy of those associations. 

Two days ago, for example, David Catron published a piece titled “Censorship is More Dangerous than Disinformation,” in which he argues strenuously against the drive to censor in the name of protecting people from disinformation.

 Fine. 

However, by using the term disinformation in the title and implying that it exists in some sort of trade-off relationship with other legally protected values , he is unwittingly reifying the posture of those whose views he claims to oppose. 

Those who mount these campaigns designed to turn verbal tropes into de facto tools of social governance on behalf of powerful interest groups are well aware that most people are blind to the role of what George Lakoff calls “linguistic framing” in their lives. They know that if they get us—both intellectual friends and intellectual foes of the concept—to repeat it enough it will acquire the aura of a settled truth in the minds of most people. 

There was perhaps an earlier time, when governments still more or less sought to respond to the interests of the governed, in which we did not have to pay so much attention to such discursive details. But those days are over. 

We now face an entrenched elite, backed by the full might of the Deep State and its well-researched tools of cognitive conditioning who see us as a largely unindividuated biomass that can and should be manipulated into serving what they see as their transcendently conceived ends. 

This reality requires each of us to become much better students than we have generally been up to this point of the details of the methods they employ to stealthily nullify long-standing norms, values, and legal doctrines and replace them with legal pseudo-concepts like misinformation and disinformation. 

So the next time you hear someone presenting these terms as having a juridical weight comparable, say, to that of habeas corpus, point out that it’s not the case and, if you are tempted, respond to the merits of their argument for limiting free access to information, eschew the use of the words disinformation and misinformation in your answer, and describe their proposal as what it is: pure old-fashioned censorship.