Abstract

Excerpted From: Steven I. Friedland, Regulating Speech Bias, 86 La. L. Rev. 759 (Spring, 2026) (160 Footnotes) (Full Document)

“Unconscious biases in the way memory, emotion, and attention work produced misunderstandings and protracted conflicts between people, groups--even nations.” Speakers wishing to advance objective facts generally use neutrality as an express or implied premise of their speech. Yet, claims of implicit bias or non-neutrality are increasingly offered to rebut the factual nature and truthfulness of the speech of others, especially regarding speakers who are part of the established media. Bias claims often are made in conjunction with generalized partisan labels, such as woke, progressive, independent, liberal, and conservative. Such claims arguably exacerbate existing polarization. Bias claims seem well-entrenched in the present United States but have existed in some form or another for centuries.

The invocation of bias reaches the highest levels of the government and can be seen in the way presidential administrations allegedly pressure social media companies, such as Google. Even the White House has its own Website on media bias. Bias allegations are also leveled against media companies. For example, there have been assertions about the non-neutrality of cable channels generally, and late-night comedy hosts in particular. One highly publicized claim was made by now former NPR editor Yuri Berliner, who claimed that NPR had become a dogmatic liberal bastion.

The grain of truth in each of these non-neutrality allegations is that bias is virtually everywhere. While conscious bias or corrupt favoritism can occur, unconscious bias is a natural phenomenon that reaches all of humanity. Neuroscience advances have shown that unconscious bias is a pervasive part of the human condition, especially in the form of mental heuristics, quick mental short-cuts formed without the use of the conscious mind. While human beings regularly use heuristics, the mere existence of unconscious bias is generally not to blame for the seemingly pervasive current pejorative approach to speech labeling.

This current state of group speech labeling leads to many harms. The labels are used to diminish speakers, promote fast-thinking slogans, dismiss speech out-of-hand without any critical inquiry, and further polarize society. In addition, pejorative speech labels flatten the nuance and complexity of important issues, undermine common ground between speakers, and diminish valid points without verification or proof. The weaponization of unconscious bias deters conversation and curiosity, and leads to the destabilization of facts, data, conversation, and truth. The use of easy and empty labels also destroys an important value--viewpoint diversity.

There are even larger potential harms from these labels. Simply put, truth and associated facts matter for the country’s democratic system. As one commentator noted, “To abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so. If nothing is true, then all is spectacle.”

Yet, in some respects, the overuse and illusory nature of bias claims have actually diminished their impact in the digital post-truth era. First, words’ definitions migrate based on context and time so speakers use some words differently when the meaning has changed, and the appropriation of words in the current polarized climate is a common rhetorical tactic that can sideline some words.

More importantly, there is considerable temptation to resolve bias issues with government regulation. This temptation is illustrated by Florida and Texas laws that specifically limit the way large social media platforms treat ““conservative” posts. Sometimes, the government relies on less formal pressure. For example, the Chair of the Federal Communications Commission (FCC), Brendan Carr, indicated after allegedly inflammatory comments by the late-night talk-show host, Jimmy Kimmel, that the government had different ways of handling such an issue, noting that the FCC prescribes limits on how broadcast companies are supposed to operate, namely in the public interest. Carr suggested that either the private companies should change their approach or the FCC would become involved.

This Article suggests that the answer to the generalized pejorative speech labeling problem does not lie in government intervention to create neutrality by punishing or deterring non-neutral speech. Arguments about bias often are proxies and present a false equivalency--one side’s bias against the other’s. The real issue lies in the reliability of assertions and the accountability of the speakers who assert generalities, not whether the speakers fall into disfavored groups, approaches, or positions. Ensuring reliability in the process of gathering and evaluating facts is more important than the ultimate labeling of things as conservative, liberal, or even neutral. When the government starts pressuring speakers and speech, or worse, legislating about biased speech, the constitutional problems that are caused multiply rather than decrease the ultimate harms.

This Article instead promotes the use of nongovernmental tools to create a greater education about bias to limit its impact. The first tool is an awareness of what bias means in neuroscience terms. If people had a better grasp of unconscious bias and used slow-thinking tools such as active listening, critical thinking, and a curiosity mindset that appreciates complexity and nuance, reflexive allegations and oversimplification into polar dichotomies would not occur as readily or have the same bite. Other tools in a bias reduction toolkit would include the reframing of issues to use a spectrum structure, issue by issue in the media instead of dichotomies or binaries, so that complexity and nuance are welcomed, not ignored; and more personal adjustments, such as listening to understand, empathic imagination, and real conversation instead of reflexive attack could be employed. In addition, greater transparency in the assumptions made by speakers would serve to illuminate the processes by which outcomes are reached and not simply accepted.

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Bias allegations about speakers and speech often are misdirected and illusory. The use of pejorative speech labels, especially when aimed at groups of people through a defining label such as conservative or liberal, or left or right, is likely as old as speech itself. Yet, in today’s polarized society where binaries are commonly used to categorize speakers and speech, and critical thinking on a spectrum is often flattened by the Internet and social media, labeling speech as biased is ubiquitous. The bias label, though, is unremarkable to the extent that all humans act with unconscious bias according to the neuroscience. Consequently, the harms of bias labels far outweigh any benefit; such labels stifle conversation and civil discourse and further enhance polarization and emotional disagreement.

Using the government to rein in the labeling, particularly if private companies appear to show bias in dealing with some groups based on politics or identity, is superficially appealing. Yet, such intervention often complicates the issue and leads to harmful unintended consequences. Government regulators are biased in their own right, and government interference does not let ordinary people make their own choices. Less harmful alternatives exist. For example, intentional conversation with greater use of a spectrum framework instead of dichotomies or binaries will lead to more effective outcomes. Further, increasing transparency in the assumptions underlying speech and speakers, making a greater commitment to gathering information rather than reacting to it in reflexive judgment, and implementing a reliability framework such as the one used for experts under Daubert v. Merrell Dow Pharmaceuticals Co., should help lead to greater accuracy in information. In the big picture, it would be beneficial to create a curiosity mindset with a space for conversation, and not use the government to enforce its own notions of neutrality.

Senior Scholar and Professor of Law, Director, Center for Engaged Learning In Law, Elon University School of Law.