Publicity’s Misinformation Problem

Abstract This paper argues that everyday practices crucial for ensuring politically engaged citizens such as sharing news articles or deliberating about potential laws can also be responsible for undermining the state’s efforts to publicize the law. Theorists view publicity—a requirement that laws should be public and accessible—as having crucial normative and practical importance in liberal democracy and, more broadly, in ensuring the rule of law. Due to egalitarian concerns, laws are often long, complex, and specific to ensure that street-level bureaucrats exercise low levels of discretion in applying the law. This—what I deem the institutional publicity problem—means that the law is so inaccessible that busy, everyday citizens must turn to third-party sources to understand policymaking. These intermediaries often make mistakes promulgating the law. Misinformation is hard to counteract, and pre-existing beliefs affect information acceptance. This all represents a behavioral publicity problem: morally and legally permissible actions can complicate and undermine reasonable efforts of citizens to learn about the law. I argue that the state is caught between a rock and a hard place. While there are benefits to having the state fight against misinformation, it also raises serious concerns about democratic engagement.