There’s an important question that often goes unaddressed in the debate about regulating online disinformation: Who guards the guardians? For the past half decade, the State Department has funded the Global Disinformation Index (GDI), a project ostensibly designed to help advertisers avoid sites trafficking in disinformation. But according to a recent Washington Examiner investigation, GDI has blacklisted a wide range of mainstream conservative content—including an Examiner article whose sin was quoting an AEI scholar. (Hat tip to the ever-vigilant Walter Olson, whose work has inspired me since law school.) This investigation highlights the danger of controlling information online, especially when it comes in the form of government-funded restrictions on political speech.

GDI is a British nonprofit firm that exists “to disrupt online disinformation.” It maintains a Dynamic Exclusion List, an index of global news publications “rated high risk for disinformation.” GDI licenses this index to digital ad companies, which use the index to help place client ad spending. The Examiner reports that GDI has received $330,000 in funding from two State Department initiatives.

The difficulty, of course, is how one defines “disinformation.” GDI defines the term as “push[ing] an intentionally misleading narrative which is adversarial against democratic institutions, scientific consensus or an at risk group—and which carries a risk of harm.” GDI applies this definition broadly to include not only incorrect facts but allegedly harmful inferences from true facts, which has led it to blacklisting many fairly conventional conservative viewpoints.

For example, GDI flagged as “misogynistic” an article quoting AEI Nonresident Senior Fellow W. Bradford Wilcox about a survey showing that 60 percent of conservative women report being completely satisfied with their family life, compared to just 35 percent of liberal women. Wilcox argued that the survey results challenged liberal notions that independence, freedom, and work lead to greater happiness than marriage and family. While Wilcox’s conclusion is debatable, it is a reasonable extrapolation from the data and is far from the QAnon-influenced falsehoods that drive the disinformation debate. Nor is this an isolated incident: The Examiner reports that GDI has identified the New York Post, Reason, the Examiner itself, and a host of other mainstream conservative publications as risky.

This gatekeeper-bias problem has been a long-standing issue online. Advertisers, consumers, and IT departments lack the resources to review individual sites, so they reasonably rely on intermediaries such as GDI to filter unwanted content. But when these intermediaries inadvertently or intentionally abuse their position, the victims have little recourse. This is the lesson of an early internet law case called MEDIA3 v. Mail Abuse Prevention System (MAPS), wherein a web-hosting company found no recourse after being similarly blacklisted by the industry-leading provider of anti-spam services, meaning MEDIA3’s 1,500 clients were suddenly blocked from reaching 40 percent of all internet addresses with no right of challenge or appeal. Internet law guru Lawrence Lessig highlighted the MEDIA3 case as an example of how corporate power can subtly influence the flow of information online.

But when the government funds the gatekeeper, the problem takes on a constitutional dimension. The First Amendment is designed to prevent public officials from censoring viewpoints with which they disagree. That constitutional principle casts a long shadow here: While government officials are free to express their own views and argue with opponents, they should not fund a blacklist that tilts public discourse against disfavored viewpoints. As Olson notes, “In practice that can mean stepping selectively on the oxygen hose of ad revenues that supplies an adversary press.”

This episode also provides a warning about broader efforts to regulate disinformation online. As I’ve discussed before, any gatekeeper’s perception of particular content can be informed by his or her priors, at least subconsciously. It is risky for the government to appoint any one entity as the arbiter of truth. (Just ask Galileo how that works out.) It’s true that the internet has reduced information costs, which leads to a deluge of not only reliable but also unreliable information. So there’s a role for filtering services to help separate the wheat from the chaff online. But First Amendment principles counsel against the government playing this role, even in part. And those private entities that step up should take their responsibilities seriously. Disinformation doesn’t mean information you dislike.

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