Introduction

Over the last several years, it seems like everyone from academics to politicians and reporters have decried the deleterious effect of misinformation on democracy.Footnote 1 Legal scholars have written about how the law can be used as a tool to ameliorate misinformation problems (Frish and Greenbaum 2017; Ellamey 2021; Chesney and Citron 2019). Occasionally, an article is written about how misinformation affects the use or interpretation of the law or about the relationship between democracy, misinformation, and law (Okninski 2019; Naprawa and Reiss 2015; Palmer 2021).

In this paper, I argue that well-intentioned citizens making a reasonable effort to learn the law can be causally responsible for undermining political equality. Scholars view publicity—a requirement that laws should be public and accessible—as having crucial normative and practical importance in liberal democracies. Due to the state’s concern about ensuring equal treatment, laws are often long, complex, and specific to ensure that street-level bureaucrats exercise low levels of discretion in applying the law. I term this the institutional problem for publicity. While we often acknowledge that laws are largely inaccessible, we fail to consider how citizens’ reasonable efforts to learn the law also undermines publicity. As laws are increasingly complex, citizens turn away from the law itself and toward third-parties who interpret the law to make it more digestible. These third-parties—newspapers, political elites, social media influencers, and more—often make mistakes in articulating the law. Sometimes, third-parties do more than make mistakes and lie directly about the law. Misinformation is hard to counteract, and pre-existing beliefs affect information acceptance. This all represents a behavioral publicity problem. The behavior of individual citizens—behavior which is often legally and morally permissible—undermines publicity and, thus, the rule of law and liberal democracy.

Consider the following example: in 2010, after years of debate about how to improve healthcare, the United States passed the Affordable Care Act—a federal statute that represented the most significant regulatory overhaul to US Healthcare in more than 50 years. Throughout the legislative process, pundits and politicians put forward false claims that, under a system of government healthcare, individuals would be unable to choose their doctor and that the government would attempt to prematurely end the lives of old and sick patients (Nyhan 2010).

Former Vice-Presidential candidate and governor Sarah Palin shared a Facebook post with the following:‘The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society”’. News organizations published similar content. One radio show even falsified a page number, asserting that ‘Page 425 [of the Affordable Care Act requires] people in Medicare [to] have a required counseling session that will tell them how to end their life sooner’ (Nyhan 2010, p. 8). Within a month, this lie was repeated in editorials and opinion pieces in more than two-dozen news sources, with 86% of Americans reporting to have heard this claim. Among this 86%, half of respondents believed that it was true (Nyhan 2010, p. 10). One could argue that citizens ought to simply read the Affordable Care Act to see whether these claims are accurate. However, this simply returns us to the world of the institutional problem. In Switzerland—a state known for its referenda—we see similar problems: in analyzing more than two years of politicians’ statements about referenda during a weekly political show, Bernhard (2020, p. 77) found that more than 40% of statements ‘refer[ed] to opinions (as opposed to facts), predict the future, or are vague’.

Whether we be in Switzerland or the United States, liberal democratic institutions rely on publicity as a mechanism to ensure that people know that they are being treated fairly by the state and receive equal treatment under the law.Footnote 2 By making the law public, citizens are able to demand fair and non-arbitrary state enforcement.Footnote 3 The institutional problem for publicity occurs because the state is trying to treat people equally by minimizing discretionary applications of the law. The behavioral problem for publicity occurs because liberal democracy, unlike more hierarchical forms of rule such as monarchy, explicitly relies on the spontaneous behaviors of citizens to maintain state authority: by giving citizens rights to communicate freely and argue about what the state should become, the state implicates citizens in its processes of legitimation. In short, publicity becomes a site of contestation and trade-offs: substantive equal treatment under the law can lead to the institutional problem, and, in trying to learn and argue about the law, people can undermine publicity’s assurance of equal treatment through the behavioral publicity problem.

Any attempt to solve the problems posed in this paper will run into serious normative and implementation problems. These problems are not without potential solutions. However, the scope and length of this paper will not allow for an in-depth discussion of these solutions. While I may gesture to policies that can improve the process of promulgating the law, the goal of this paper is more conservative: to describe the behavioral and institutional problems facing the state’s attempts to promulgate the law, how these problems interact with one another, and why these problems present normative challenges to the state.

To accomplish this goal, I first provide a framework for understanding how commitments in liberal democracies to the rule of law, public equality, and freedom of expression relate to one another. Then, I articulate and analyze our two problems for publicity. This represents the bulk of the paper. Finally, I conclude with a discussion of the problems that potential solutions to our publicity problems face.

But, first, a few notes. First, publicity is used as a term in debates about institutional transparency (Kogelmann 2022), to denote the importance of public promulgation to the rule of law (Celano 2013; Shapiro 2008), and in discussions about the role of making information public in democracies (Christiano 2008).Footnote 4 In each of these debates, the institutional mechanisms in actual democracies responsible for satisfying what each literature refers to as publicity is the same: the state makes its laws and policies public in some fashion and people discuss it. Second, the realm of democratic theory is vast. This article is most directly in conversation with accounts of democratic authority that rely on democracy’s ability to satisfy political equality (Beitz 1989; Christiano 2008; Kolodny 2014)Footnote 5 In short, the normative value of democracy is that it treats persons equally by affirming equal citizenship. Finally, my primary aim in this paper is to diagnose a problem in how this mechanism functions in actual states. It is up to the reader to determine how damning these problems are and what we ought to do with them. I am not here to defend the value of publicity or democratic equality one way or another; I merely present problems for advocates of publicity to overcome.

Section One: Ensuring Equal Citizenship

In this section, I first articulate the relationship between democratic equality and the law. In short: the law provides a space for coordinating civic life. When liberal democracies publicize the law, they facilitate citizens’ ability to recognize that they are being treated equally by state policy. Then, I distinguish between different kinds of publicity requirements. Altogether, this section explains the normative stakes associated with our two problems for publicity.

Democratic Equality and the Law

In presenting a prominent account of democratic authority, Christiano (2008, p. 51) argues that the procedures that govern state action must allow an ordinary citizen with ordinary cognitive limitations and self-interest bias to see that political institutions treat them in accordance with social justice, or, in other terms, equality. Publicity allows for matters of social justice to become public and allows ‘reasonable citizens [to] see that the basic institutions of society are treating them justly’ (Christiano 2008, p. 52). As individuals have an independent interest in being treated justly, this organization allows for citizens to recognize their own interests in political society. Additionally, as persons have an interest in feeling at home in the world, it is important to see their interests reflected in the basic justifications for political society. Altogether, Christiano’s preferred account of publicity requires the state to be able to ‘display the fact of their justice to ordinary persons’, again emphasizing political equality (2008, p. 51). The importance of publicity is thus that it is the mechanism that allows liberal democratic institutions to satisfy the normative and political commitments of citizens. We see this same mechanism at play elsewhere in the literature where ‘publicity’ can refer to a variety of topics across a multitude of literatures that range from deliberative democratic theory to jurisprudence; discussions of publicity can refer to publicity in the context of public reasons, public deliberations and deliberative democracy, promulgation, or government transparency (Chambers 2004; Fenster 2006; Schwartzman 2004; Rawls 1996). I use the term to refer to the commitment of liberal democracies to ensuring that citizens have a degree of knowledge about the state that facilitates the kind of civic engagement necessary to the functioning of state; as an example, if the state does not publicize the date of an election, then nobody will show up and vote.

The actual institutional mechanisms that ensure that citizens see that they are being treated equally are multifaceted and complex. But, many of them involve the law. Because humans are ‘planning creatures…[with] the capacity to act purposively…[and] the ability to form and execute plans’, society is full of interwoven, often incongruent, plans (Shapiro 2008, p. 193). To achieve complicated goals—such as maintaining a thriving democracy—we must have a legal system that allows for this. Effective legal systems will facilitate shared planning by ‘helping agents lower their deliberation, negotiation, and bargaining costs, increase predictability of behavior, compensate for ignorance and bad character, and provide methods of accountability’ (Shapiro 2008, p. 200).

The rule of law is a concept used to evaluate how good a legal system is at satisfying its constitutive aims. But, especially in a democracy, the rule of law is a site of contestation—to understand what the rule of law means, we must determine what we want the law to do (Burgess 2020). Its general principles rely on some notion of predictability and publicness; citizens must know the law, how it applies to citizens, and that the law will not change on a whim (Waldron 2008; Cass 2001). The expectations of everyday people matter to understanding the rule of law. Even if people are mistaken about what the law is, we still have reasons to care about citizen perceptions of the state. Another way to phrase this point is to make reference to sociological legitimacy. Unlike scholarship on the rule of law, scholarship on sociological legitimacy emphasizes its importance to the functioning of specific institutions—including domestic and international courts, constitutions, and more general legal decisions (Bassok 2011; Fallon 2005; Wells 2007). In liberal democracies, the relationship between law and planning is elevated further as citizens collectively participate in their own governance.

Derived from accounts of the rule of law that draw on its ability to foster equality between citizens and the state and among citizens, egalitarian justifications for publicity emphasize the importance of reason-giving. Requiring officials to give ‘the reasons for their uses of coercion over individual citizens…[and requiring that] those reasons…be statements of how the law…permits their actions’ allows citizens the ability to verify that they are being held to the same publicly available standard for conduct as all other citizens (Gowder 2013, p. 583). By nurturing a political public sphere, publicity forms a ‘norm that solves social and political problems while maintaining the bases for cooperation and solidarity’ (Bohman 1999, p. 176). Because of this, scholars have emphasized the necessity of democratic engagement to the rule of law, arguing that citizens must ‘understand the concrete value of the rule of law…grasp its contours, content and practical manifestations’ to be ready to defend it in both cases of ‘unnoticed breaches’ and cases where the rule of law defends against massive rights violations (Bello Hutt 2021; Merdzanovic and Nicolaidis 2021).

Kinds of Publicity

For the law to maintain its coordinative function, how public does it need to be? Does every citizen need to actually know all of this information? Or does the information simply need to be accessible to every citizen? It would be useful to our purposes to distinguish between the strength of different publicity requirements.

We can imagine a minimal publicity requirement that concludes that a state meets its requirement if it has exactly one copy of every law ever created that is made available to the public only upon request, and only in a single Library of Congress reading room. There are a variety of responses to make, here. We might make the obvious point: in a country of hundreds of millions, having only one copy would require very long, very impractical waiting times that would, in practice, make the law very inaccessible. Or, we could voice a worry that, in practice, not everyone has the means and opportunity to travel to Washington D.C. to wait in a long line. Even though the law is made public, it is not doing so in a way that satisfies the substantive benefits associated with publicity.

A weak account of publicity requires that the state prioritize transparency in its institutions. The procedures that govern state action must allow an ordinary citizen with ordinary cognitive limitations and self-interest bias to see that political institutions treat them in accordance with social justice, or, in other terms, equality (Christiano 2008, p. 51). Additionally, the fairness of these procedures must be transparent—it must be possible to know that there are procedures governing the creation of legislation and that these procedures themselves are also fair. Together, these conditions of weak publicity require that the state be able to ‘display the fact of their justice to ordinary persons’ (Christiano 2008, p. 51). Strong publicity requires that ‘each person actually see that he or she is being treated justly’ (Christiano 2008, p. 48, emphasis added). On this account, the state must find some way to overcome the ‘basic facts of cognitive limitation’ (Christiano 2008, p. 48). Strong publicity very literally requires that every citizen know every law and the process behind the creation of every law.

Celano (2013, p. 123) defends an expansive account of publicity that relies on ‘the notion of common, or mutual, knowledge…[Publicity requires] not only that each one of the law’s addressees should know what the law is, but also that everybody should know that everybody knows what the law is, that everybody should know that everybody knows that everybody knows what the law is, and so on’. Celano’s account argues that the law attempts to coordinate a multitude of joint acts, occurring concurrently, and, as such, individual compliance requires the law to use common knowledge to solve collective action problems (2013, pp. 131–133). Note that Celano ‘assume[s] that individuals in a political community are free and equal only if they recognize each other as free and equal…[and] individuals can only recognize each other as free and equal, when subject to a set of laws, if these laws are common knowledge among them’ (2013, p. 141). This is quite a high bar, and, as such, Celano concedes that ‘in modern states, citizens do not know much of the law, let alone its complexities and intricacies’ (2013, p. 142). Instead, Celano tentatively proposes that we should ‘hold that publicity requires that…procedures for making positive law—be…common knowledge among the citizens, that an official, reliable, public record…(i.e. legislation) should be available and that the existence of a device for publication of the laws itself be common knowledge among the citizens’ (2013, p. 143). Celano’s ‘publicity for officials’ falls somewhere between strong and weak publicity. It still requires a highly demanding account of shared knowledge—the public must all know that everyone else know how the law is made. But it does not require the most demanding form of publicity: that everyone actually know the law.

In all levels of demandingness, publicity’s success is measured in terms of how well it returns substantive benefits. One intuition we get from the earlier example of minimal publicity is that minimal publicity does not seem to be enough to benefit citizen knowledge at the individual level. While this minimal requirement still makes the law public, it does so in a way that minimizes the number of people who have knowledge of the law from the text. Consider the development of Christianity after the invention of the printing press and the translation of the Bible from Latin. When more copies of a text exist, and more people read that text, people create a multitude of interpretations of that text, diversifying and expanding that text’s Overton window. Freedom of expression allows private actors and citizens to create information about the state. In the real world, the reasonable person—the ordinary person—will attempt to learn about the state from sources besides the state. News organizations, academics, and pundits all discuss the law and provide summaries and opinions about state policy. While publicity is still an obligation of the state, citizens still must try to know what the law is. Here, at the moment when this attempt is made, is where citizens complicate and undermine publicity. Importantly, regardless of where we set our ideal—or bare-minimum—requirement, our publicity problems still arise.

Today, explanations of the law abound in every media form and are aimed at every audience. From podcasts by law professors and late-night political talk shows to blogs and TikToks, everybody claims to be a capable conveyor of information about law and policy. Rarely do these accounts have formalized publicity requirements in mind, instead opting to share information that facilitates public discourse thought, again, to be necessary for improving civic engagement. If everyone proclaims to be an expert with a nuanced opinion, it can be difficult to find actual expertise.Footnote 6 If written texts are made scarce—like in our minimal publicity case—learning the law becomes a game of telephone where, due to the limitations of human learning, people will have a mistaken understanding of the law. The examples presented in Section Four illustrate how the different information flows affect publicity. Now, though, I turn to describing our two problems for publicity.

Section Two: The Institutional Problem

The institutional case presents a problem where no reasonable amount of effort could allow someone to understand that they are being treated equally under the law due to the structure of the law itself. I refer both to the normative structure imposed by the ideal of the rule of law and the structure imposed empirically by the development of laws over the last century. Recall from the last section the importance of citizen experience to the rule of law and liberal democracy— citizen experience is where we see injustices and inequality. Because states are made up of multiple agents all acting toward a diffuse array of purposes, states must write laws and codes that describe what each actor’s obligation is in relation to the law. Laws have grown increasingly complex and technical. If a law is vague, or underdefined, those low-level government workers who are responsible for determining legal penalties will exercise a high level of discretion (Galligan 1986). Discretion refers to a capacity of judgment that is constitutive of government work; work done by street-level bureaucrats (SLBs) is ‘improvisational…embedded…in a particular community. Situated in a particular context, [SLBs] develop collective knowledge and practical judgements from their everyday experiences with peers, clients, and superiors’ (Tomkinson 2020, p. 677). Heath (2020, p. 255) poses some of the questions that discretion raises:

Public servants are empowered to make certain decisions, but are often given little guidance on…standards or principles they should use to make those decisions…should they take their past decisions as precedents…constrain[ing] future decisions, or should officials remain free to decide each case on its own merits? What if two officials are interpreting the rules differently, generating inconsistencies in their decisions? If a citizen objects to a decision that has been made, what recourse does he or she have?

Heath ultimately argues that there has been an institutionalization of the rule of law in the administrative state, and, as such, liberal principles of equality are still taken into consideration during acts of discretion. Indeed, Heath’s defense of discretion is impressive and overwhelmingly reasonable. Given how complex the legal system has become, who would ‘not want public officials [to be] able to apply rules in a flexible, intelligent, and when circumstances warrant, compassionate manner?’ (Heath 2020, p. 260). Goodin (1988) disagrees with a defense of administrative discretion, instead viewing it as deeply arbitrary and unpredictable. Baumgartner (1992) articulates the danger of discretion bluntly: discretion often results in discrimination.

Regardless of the merits or drawbacks of discretion, the state has historically tried to minimize discretion. Due to a concern about the state treating all persons equally, laws must often be long, complex, and specific to ensure that street-level bureaucrats have low levels of discretion in applying the law. Regardless of this normative reason for laws to be specific and technical, it is a fact that most laws in most states take this complex, technical form. Accordingly, the ordinary person neither has the necessary skills—nor the necessary amount of time—to read through and understand all of the laws that the state creates.

An example of the institutional case would be useful here. No ordinary person would read through the approximately 17,000 pages of the rules and proposed rules that made up the Affordable Care Act (Kessler 2013). A review of almost 200 studies performed over the last century to determine reading speed states that we read at an average of 238 words per minute (Brysbaert 2019). If people can read an average of one double-spaced page a minute, then—without any breaks for food, water, work, or sleep—it would take approximately 17,000 min, the equivalent of a little bit more than 283 h or almost 12 days to fully read through the document. And, the ACA happens to be a piece of legislation so complicated that the Supreme Court case hinged on a single sentence with vague grammar. In this case, understanding the ACA would require reading more than just the law—due to statutory vagueness, an interpretation of the law is also necessary for understanding. Is it then necessary for someone to read all the documents surrounding the ACA’s court cases? To add to the worry, here, the ACA is simply one piece of legislation out of hundreds passed by each Congress. As states, counties, and cities all pass their own regulations, it is simply unreasonable to expect anyone to read every piece of legislation. The ordinary person is not a lawyer who has endless time to read and can subsist on reading alone.

Publicity is most often taken as an obligation of the state. A sensible response here would be to say that states ought to focus less on legibility and more on ensuring that laws are written in ways that citizens can easily understand. However, in attempting to simplify laws—in making them easier to read, shorter, and all around more manageable for the average citizen—administrative agents would likely end up with a greater degree of discretion. Then, we would arrive back at a debate between Heath and his adversaries.

When there are ambiguities in the law, individual state actors end up applying rules differently. This phenomenon, known in the literature on institutional change as drift, would end up making the state more opaque (Mahoney and Thelen 2010, p. 16). If laws are less predictable, then they undermine the internal morality associated with the rule of law. After all, if the goal of the rule of law is to articulate an agreement between the state and citizens, then both sides must be able to understand what that contract requires. Greater institutional discretion undermines this comprehensibility requirement from both sides of this hypothetical contract. The modern state is not a monolith. It varies in its perception by citizens, roles it undertakes, and effectiveness across state, county, city, and industry lines. Many of the interactions citizens have with the state occur on the local level. Low-level agents of the state are responsible for implementing policy. If those agents are given high levels of discretion, if laws are too general, then citizens do not have a full understanding of how they will be treated by the state before they engage with the state.

Thus, the institutional problem can be summed up with the following: for laws to be created in a way that ensures that they treat individuals equally, laws must often be long and specific. Even when laws are publicly available, they neither meet the normative standards inherent in a requirement of publicity nor the rule of law more generally.

Section Three: The Behavioral Problem

The behavioral case addresses the role of the individual in seeking out information. The ordinary person learns about the law from secondary sources. If laws are not written for the average citizen, but rather written as commands for lawyers inside of administrative agencies to perform necessary tasks of governance, then it is reasonable for citizens to turn away from the state proper for information about the laws. Citizens may make a reasonable effort when they consume the news or read reputable blogs about politics. How are citizens to know which secondary sources are reputable? In the example from the institutional case, the false information was being touted by news anchors and pundits who are elevated within the news media. These are the figures that ordinary people view as trustworthy purveyors of information. If an ordinary citizen reads a popular source from someone who appears to have good credentials, is recommended by her most trusted friends, and claims to have factual evidence, who is to say that she did not make a reasonable effort to learn about the law? As people tend to have insular information spheres, getting good recommendations for unbiased, factual secondary sources—if we think that reporting on politics can be unbiased—can be extremely difficult.

Empirically, misinformation is hard to counteract. Throughout the past two decades, there has been a large growth of the information available about political misinformation. Political science recognizes an important distinction between citizens who are uninformed about politics and citizens who are misinformed about politics—people firmly hold inaccurate beliefs and use those beliefs to engage in political life (Kuklinski et al. 2002). Correcting misinformation is extremely difficult. Political psychologists phrase this as humans being ‘goal-directed information processors’ where the goal is reinforcing pre-existing views (Nyhan and Reifler 2010). This goal can lead to something called a ‘backfire effect’ where individuals who ‘receive unwelcome information…come to support their original opinion even more strongly’ (Nyhan and Reifler 2010). Because people have an interest in being justified in their world view, people grow extremely confident in their misinformation (Kuklinski et al. 2000; Nyhan and Reifler 2010; Jerit and Barabas 2006). To add to this dilemma, pre-existing belief structures, like partisanship, can affect the information that individuals are willing to accept (Zaller 1992). When it comes to misinformation, partisanship predicts an individual’s vulnerability to misinformation (Nikolov et al. 2021).

While the law is thought to apply to everyone equally, because of several empirical factors that affect cognition, demographics will be differently affected by misinformation (Mani et al. 2013; Katsnelson 2015; Bremner and Narayan 1998). Learning about the law, fact-checking articles shared on Facebook, and evaluating strong and weak evidence are all cognitive tasks: if Susan works double-shifts and is worried about feeding her children, she might be less likely to spend time vetting sources as Susan barely has time and bandwidth for politics of any kind (Elliott 2023).

Because of all of these overlapping features, media is a particularly effective way of disseminating misinformation. Given research on framing, priming, and agenda-setting, we might be skeptical about the ability to convey complex amalgamations of political information without using a partisan lens. Partisan news programs, for example, focus on ‘helping people make sense of the world given particular predispositions’ rather than listing arguably neutral descriptions of law and policy (Levendusky 2013, p. 612). Social media—‘web-based interactive applications such as Facebook, Twitter, [etc.]’—has also drastically altered the way people learn about politics (Settle 2018). On top of the speed by which social media allows individuals to access information about politics, social media also combines political content with social content, making ‘traditional correlates of political engagement and political information…[like] interest in politics…and political information seeking’ less important for studying exposure to political information and, thus, misinformation on social media (Settle 2018, p. 13).

There is a general, causal relationship between conditions of poverty and increased cognitive load. Being worried about having enough money to survive takes up bandwidth and leaves fewer cognitive resources available for everything else, including politics:‘Just as an air traffic controller focusing on a potential collision course is prone to neglect other planes in the air, the poor, when attending to monetary concerns, lose their capacity to give other problems their full consideration’ (Mani et al. 2013, p. 976). Chronic stress makes us worse at cognitive tasks (Mani et al. 2013; Katsnelson 2015). Empirical features that diminish cognitive capacity are injuries. If these injuries were evenly distributed throughout the demos, it might not be relevant to a discussion of publicity. However, these empirical factors are neither evenly nor randomly distributed. Poverty is very clearly a condition that affects different geographic and racial demographics unequally (Holt 2007). Without underlying structural injustices, we might expect the behavioral problem to be distributed randomly. Instead, because of phenomena such as concentrated poverty, the behavioral problem poses a straightforward concern for political equality as the behavioral problem might be more prominent in certain demographics over others. In short, the behavioral problem represents another harm to political equality—one that might be compounded by other structural injustices that also undermine political equality.

Section Four: Publicity Problems in Action

This section provides examples of our problems for publicity. In liberal democracy, one ought to ‘recognize the implicit generality of the reasons to which one appeals in political argument’ (Richardson 2002, p. 187). Citizens are not automatons:‘individual reflection is…embodied in flesh-and-blood-deliberators’ (Richardson 2002, p. 192). Liberal democracy is constituted by a public consisting of imperfect rhetoricians engaging with an information system which ‘forges the emotional connections between speakers and listeners’ (Richardson 2002, p. 192). To emphasize the imperfect nature of deliberation, these examples interweave legal fact with testimony and information from news media—much like citizens do in the deliberative process. The goal is to allow the reader to reflect on how they might navigate different instances of publicity problems.

A. Misinformation in Private Speech

Private speech between individuals is the most difficult type of speech to regulate. Take social media. Most people using social media platforms are exposed to political information incidentally and when they are seeking out information about their social circle instead of politics; social media platforms present content in a ‘personalized, quantified blend of politically informative expression, news, and discussion that is seamlessly interwoven in a single interface with non-political content’ (Settle 2018, p. 15). In short, social media is a unique contributor to misinformation (Del Vicario et al. 2016). There are also different rates of misinformation transmission through different demographics: immigrant communities or communities of non-native English speakers in the United States that make use of applications such as WeChat or WhatsApp might be at higher risk for reading and receiving misinformation (Zhang 2018; Pinhiero 2020). Social media platforms are also less effective at stopping the spread of misinformation in languages other than English (Valencia 2021).

For example, Jill posts ‘vaccine mandates are unconstitutional’ during the Covid-19 pandemic with a link to a news article written by her good friend Jack. Jack not only confirms the ‘illegality’ of vaccine mandates; he also writes that the state’s social distancing laws were repealed by the highest court of the land.Footnote 7 Jill’s followers read this information, trust Jill—and, by extension, Jack—and get angry when the state still mandates social distancing. Richard posts on Facebook that the City Code bans parking in the street.Footnote 8 This is not actually what the law says: temporary street parking is allowed in several circumstances. Someone has a birthday party. Janice—the vengeful neighbor—calls the police, requesting that they ticket guests temporarily parked on the street. The police might tell Janice that she is wrong about the law. Janice flies into a rage, tells the police about Richard’s promulgation, and grows distrustful of whether the police know the law, illustrating the tangible danger of the ‘backfire effect’ (Nyhan and Reifler 2010). Janice’s trusted friend of several decades—a leading voice in local politics—made a mistake that caused Janice to feel mistreated by the government. Although the police officer upholds the rule of law and treats everyone equally by refusing to ticket the cars, Janice will still believe that political equality is being violated.

B. Misinformation in Public Speech

Return to our vengeful neighbor, Janice. What if the police officer was also friends with Richard on Facebook? It has been a few years since he read the entire City Code. He tickets the guest cars. Then, citizens behaving lawfully were penalized by the state’s inconsistent application of the law, undermine a commitment to equal administration of the law and citizen trust. Street-level bureaucrats are members of the state who have direct contact with individual citizens and are citizens themselves. Police officers, teachers, city clerks, and zoning officials do not exist in a vacuum. Street-level bureaucrats have friends, families, and Facebook pages that can all influence how they treat other citizens (Zacka 2017; Tomkinson 2020). This most clearly implicates Celano’s account of moderate publicity. If, at minimum, publicity requires that state officials know the law, then we should be concerned about how our officials come to know the law. While official trainings are often required, as discussed in the above section, political socialization relies on social circles. As such, misinformation about the law can cause members of the state to be mistaken about the law.

Institutional arrangements further complicate this problem. Recall from Section ‘The Institutional Problem’ that part of the cause of the institutional problem is that the law represents a complex, multi-faceted arrangement between different jurisdictions. States often contain both national and subnational governments. Sometimes, one government has jurisdiction over another and can strike down or halt certain pieces of legislation. If street-level bureaucrats are learning about the law from multiple sources at different points in time and in different contexts, there is likely to be informational discrepancies.

In the United States, in Nashville, Tennessee, in May 2023, Hayley Kiyoko, an entertainer, alleged that she was ‘advised by local law enforcement that having a drag performance at my all ages show could result in legal action’ (Lee Hood 2023). This comes after an April 1st ruling by a district court judge that temporarily blocked Tennessee SB0003—a bill that amended TCA Title 7, Chap. 51, Part 14 and made it ‘an offense for a person who engages in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult’ (State of Tennessee, Public Chapter No. 2). The Metropolitan Nashville Police Department consists of approximately 1,658 sworn police officers and 369 civilian support staff employees across five Bureaus, 88 Police Precincts, and 60 specialty assignments (Metropolitan Police Department 2023). Tennessee has passed a variety of laws similar to SB0003 throughout the past few years. Laws are constantly being added and changed throughout the legislative session. Do we expect that all 2,000 members of the MNPD are up to date on every piece of legislation that gets passed? No, likely not. It is no surprise, then, that ‘a spokesperson for the [MNPD] confirmed the department had no role in the encounter, did not advise Kiyoko of any legal problems over SB0003, nor would it be within their purview to do so’ (Lee Hood 2023). Kiyoko says one thing happened; MNPD says another. If Kiyoko is right, then a police officer, because of misinformation about the law, undermined equal treatment under the law—in another bar in the same city, Kiyoko’s evening would have gone on without a hitch. If the MNPD is right, then it seems like a private citizen impersonated a police officer to warn off Kiyoko. Then, we arrive back at a straightforward behavioral problem: whether through malice or ignorance, misinformation about the law became a cudgel.

But, can both Kiyoko and the MNPD be telling the truth? When is a police officer not a police officer? In commenting on the situation, representatives from the Tennessee Equality Project made two points: first, emphasizing that street-level bureaucrats are also citizens who exist in multiple capacities, ‘it’s common for off-duty officers from Metro and other jurisdictions to work security at concerts and other events, and that it’s possible one of these individuals made the comment to [Kiyoko]’ and, second,‘the ambiguity of the law lends itself to this…it’s believable because our law is so notorious. It was the first’ (Lee Hood 2023). When controversial legislation is discussed all over the news, citizens, street-level bureaucrats, legislators, and judges are receiving (often contradictory) information about the law. In an ideal world, consistent with moderate publicity, state agents would have perfect knowledge about the laws they create and enforce. In our actual world, state agents are people who can fall prey to the behavioral problem.Footnote 9

Conclusion

This paper has argued that misinformation and citizen behavior undermine the state’s ability to promulgate the law. The behavioral problem combines concerns about the spread of public opinion, demographic dilemmas, issue salience, and political psychology. As such, it represents a complicated, multi-faceted dilemma that is not easily solved within our existing empirical architecture. Normatively, we face a much more difficult dilemma: if we did have the power to solve the behavioral problem, do we want the state to oversee that process?Footnote 10

It is important for people to know about the law. Civic engagement is often considered a crucial part of a liberal democratic society. The ability to criticize the state is also necessary. If we put the state fully in charge of correcting for misinformation, we give the state the authority to declare citizen criticisms ‘fake news’. Return to the Affordable Care Act example. Empirically, the ACA did not give the federal government the ability to create bureaucratic panels to decide who lives and who dies. Recall also that the ‘death panels’ myth was originally spread among partisan lines. In politics, information will often be spread with bad faith. We ought to keep in mind that there is a critique of the ACA present in the ‘death panels’ myth:‘the government ought not be involved with private healthcare decisions’. This is an opinion about the legitimate role of the state. We also know that this same mechanism—freedom of expression—is also responsible for helping to maintain public equality. To be clear: no regulation will be completely effective. Some of these actions would strongly limit the number of people exposed to misinformation. This might be a great help in preserving more accurate knowledge of the law. We might combine attempts to teach critical thinking and source evaluation in schools with more government oversight over private civics classes. There are ways to mitigate the behavioral problem, but, as with most questions of policy implementation, it is complicated. Each of these solutions runs into problems. Unfortunately, as the argument of this paper emphasizes, certain forms of participation can also be detrimental to the liberal democratic problem. The more engaged that we all become—the more we try to improve political equality by minimizing discretion—the greater the risk of falling into one of problems for publicity and harming political equality in a different way.

There is another worry raised by the behavioral problem. Recall that partisanship mediates information gathering. As such, increased affective polarization and greater diversity of information sources—two phenomena we see today—may interact to make the behavioral problem worse. In the United States, partisans are increasingly socially polarized;‘religion and race, as well as class, geography, and culture, are dividing the parties in such a way that the effect of party identity is magnified…we limit our exposure to outgroup individuals [and] the differences we perceive between parties grow increasingly exaggerated’ (Mason 2018). As a result, regardless of the actual quality of information available about the law, communities are likely to be distrustful of information that falls outside what is consumed by its members.

How one conceives of the relationship, and trade-off, between democratic participation, political equality, and freedom of expression will determine which sort of interventions are deemed appropriate and worthwhile. For example, in regulating misinformation, the state finds itself between a rock and a hard place. On one hand, it has an obligation to effectively educate citizens about what the state requires of it. On the other, it ought to leave itself open to criticism. As private citizens, individual politicians, thought leaders, and companies, we might deem it an irrelevant (or even harmful) critique. But when the government has the power to declare that certain critiques are illegitimate and creates laws to limit the spread of those critiques, we ought to proceed with caution. The state can always improve access to reliable information about the law. But there is a fine line between the state declaring ‘death panels do not exist in the ACA’ and determining which forms of evidence and rhetoric are acceptable ways of criticizing the state’s decisions. Existing institutions constrain the kinds of interventions that can be made.

To be clear: every policy solution raises normative difficulties. As a country, we make choices about which trade-offs we are willing to accept. My hope is that this paper accomplishes some preliminary work in making us aware of those trade-offs.