Balkinization: What If Nothing Is Enough to Save Us from the Scourge of Cheap Speech? A Response to Balkinization Symposium Participants

What If Nothing Is Enough to Save Us from the Scourge of Cheap Speech? A Response to Balkinization Symposium Participants

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics-and How to Cure It (Yale University Press, 2022).

Richard L. Hasen

Near the end of my new book, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, I confessed that the legal and social solutions I offered to the serious problems for American democracy caused by our radically changed information environment may not be enough. I wrote: “In the cheap speech era, it is wrong to assume that the marketplace of ideas is self-correcting. We cannot make lemonade from lemons amid a disinformation crisis. As the 2020 election, marked by relentless presidential disinformation about voter fraud, demonstrated, the dangers our democracy faces are deep, perhaps existential. Next time, the norms may not hold, and disinformation easily could provide a path to stealing an election under the guise of election integrity. It almost did on January 6, 2021.”

The impressive and diverse set of participants in this Balkinization symposium on Cheap Speech—Guy Charles, Julie Cohen, Yasmin Dawood, Mary Anne Franks, Dan Tokaji, and Eugene Volokh—do not really disagree with either my diagnosis of the problems or with most of my proposed solutions. If anything, the contributions show that the problems run even deeper and wider than I described, and that courts, social media companies, and the existing power structure all pose roadblocks to U.S. democracy’s twin commitments to robust political speech and free and fair elections. It all has the feeling of being suddenly stopped on the freeway and watching as a car is coming up too fast behind you and likely unable to stop before a collision.

In this response, I want to highlight the additional challenges flagged by symposium participants in terms of courts, social media companies and other intermediaries, political polarization, and society more generally. I conclude by asking what, if anything, can be done as we hurtle toward a potential constitutional, political, and social crisis.

The Role of the Courts

Eugene Volokh, who coined the term “cheap speech” in a 1995 Yale Law Journal article (though with a much more optimistic spin about how our information revolution will affect American democracy) agrees in his symposium contribution that my book “identifies a tremendously serious problem” in terms of disinformation adversely affecting American elections. More surprisingly Eugene says he has “little quarrel with many” of my suggestions. This is surprising given how much we disagree on some fundamental questions, such as whether states have the ability to pass laws consistent with the First Amendment that would require private social media platforms to re-platform candidates such as Donald Trump even if they consistently lie about election integrity and even if they foment violence. I argue in Cheap Speech that the government has no more right to tell Twitter which politicians they must carry and how they must present such content than the government can tell Fox News or the New York Times. Despite the curating of content that social media platforms do all the time in excluding hate speech, pornography, and some objectionable political messages, Eugene has at least tentatively endorsed the idea that a company like Twitter is more like a common carrier phone company than the Times and it can have its content dictated by a government bureaucrat, an idea that Justice Clarence Thomas has echoed.

Nonetheless, I will happily take this possible sub silentio possible concession (Eugene is not specific about which of my “many” suggestions he has “no quarrel with”) and focus on Eugene’s opposition in his symposium contribution to laws limiting foreign interference with U.S. elections. His approach demonstrates a view of the First Amendment that is willing to let foreign governments significantly interfere with U.S. elections. He relegates to a single brief mention the Supreme Court’s summary affirmance in Bluman v. FEC. Bluman recognized that society has a compelling interest in assuring self-government, that the choices Americans make for political leaders should be influenced by Americans. Rather than address this compelling interest and how the Court held that a ban on foreign-funded express advocacy in elections withstood strict scrutiny under the First Amendment, Eugene looks for loopholes: for issue ads that don’t expressly endorse or oppose candidates, for the provision of mere “information” by foreign governments, and for news media (a category which he rejects as unworkable). Of course there are difficult cases on the margin, as I discuss in Cheap Speech. But Eugene’s attitude about foreign interference is almost blasé. He says I “rightly” propose “only modest solutions” to the problem of cheap speech in our elections given the risks of speech regulation despite the “tremendously serious problem” we face, and simply throws up his hands. He’s content to live in a system in which the Constitution guarantees the right of foreign governments to interfere with American elections. No doubt many Justices on the Supreme Court likely share Eugene’s sentiments.

Dan Tokaji is much more sympathetic to the ideological commitments in Cheap Speech, and to the recognition that aside from some very narrow areas (foreign spending to influence U.S. elections and lies about when, where and how people vote), government bans on even dangerous speech is not the solution. The solutions offered in Cheap Speech are not about censorship but about giving voters better tools to assess the veracity of election-related information, such as improved campaign finance disclosure laws and labeling deep fakes as “altered.” Dan says I’ve offered “realistic responses to the quandary in which we find ourselves.”

But like me, Dan believes that my proposed legal solutions may not be enough to stop attempts at election subversion facilitated through bald-faced lies about election integrity. And so he considers whether courts can remain bulwarks against attempts to manipulate electoral outcomes. Dan too is skeptical of the Supreme Court continuing to serve in its role, given the turn it is beginning to take against robust campaign finance disclosure and in other areas. He remarks that “the best we can probably hope for from the current U.S. Supreme Court is noninterference.” Still it was somewhat remarkable for someone like Dan who in the past has seen the federal courts as the best protectors of voting rights and the First Amendment for American democracy to pivot to state courts as the new bulwarks. This is less a statement about the virtues of state courts—which are often populated by judges and justices who were elected in partisan elections and who in the past have not always shown themselves as strong protectors of democracy—than the deterioration of federal courts as rights protectors. If state courts rather than the federal courts are our last line of defense, I fear we are in even more trouble than I thought.

The Role of Social Media Companies and Other Intermediaries

Courts are of course not the only actors, and not even the primary actors, responsible for the current information environment that allows election lies to flourish and that makes it harder for voters to get accurate information to vote consistent with our values. We have gone from an environment in which voters could easily find trustworthy information via credible intermediaries to one in which unmediated lies are spread virally through malicious activities done for profit and political advantage.

Julie Cohen appreciates the attention Cheap Speech pays to the intersection of election law and privacy law, including the proposal the book offers for a ban on the use of fine-grained data that social media companies use to microtarget political ads. She also appears to agree that private company decisions like that to deplatform Donald Trump when he consistently spread election lies and encouraged the January 6 violence were the correct ones. But she sees content moderation decisions as addressing the problem of democracy and free speech on social media in a too little, too late fashion.

Julie instead focuses on a more fundamental problem, which is that the very business model of social media companies is to keep eyeballs on the platforms. This means that their incentive is to foment agitation and discord as a means of engagement. She writes that “because the platform business model mandates optimization for engagement, platforms have little incentive to institute more global measures designed to undercut destabilization attacks.” She wisely counsels that the kinds of disclosures Cheap Speech advocates (including whether platforms are deliberately tweaking their algorithms to promote particular political candidates) need to be supplemented with more revelations about what’s under platforms’ hoods, showing everyone how the business model works to set us into opposing camps and spew dangerous nonsense. But given the political strength of the platforms and the disincentives the platforms have for showing us the ugly mess under the hood, the likelihood for the kind of radical disclosure reform Julie advocates seems sadly low. It may well take antitrust law, and not just election law and privacy law, to get us to the next steps with these intermediaries.

Yasmin Dawood focuses on how the cheap speech era has disempowered other key intermediaries such as political parties. “Candidates and office holders can now connect directly with voters without needing political parties to serve as intermediaries. As a result, political parties are no longer engaging, at least to the same degree, in their historic role of screening and moderating extremist views, which has led to widespread ripple effects on political discourses and alignments.” Given the loss of intermediaries to help stabilize political and electoral institutions, she fairly asks whether there is a means to “cure” our problems, as the subtitle of Cheap Speech suggests.

But ultimately, Yasmin ends up in the same place as me: pushing a “multifacted public-private” approach that includes a suite of both legal and political change that can help to shore up institutions that used to be bulwarks against electoral stabilization. She praises Cheap Speech for “raising awareness” of the need to “manage institutions” to counter these problems, but like Cheap Speech recognizes that what Heather Gerken has called the “here to there” problem continues to exist. We know that institutions can help, but we flounder with who and how they can be restored.

The Confounding Question of Political Polarization

Guy Charles, like Eugene Volokh, endorses most of my “generally modest” and “largely unobjectionable” proposals: “No one can object to his calls for an improvement in election administration, more disclosure of those who fund on-line election activity, and using existing defamation law to deter those who make false statements about elections that injure the reputation of a person or entity.” But one gets the sense from reading Guy’s contribution that he views Cheap Speech’s set of solutions as little more than rearranging the deck chairs on The Titanic.

The key problem, according to Guy, is a demand-based problem and not the supply of disinformation. He writes: “There are certainly some voters who are interested in truthful political information. But there are certainly a, perhaps larger, group of voters who are not in the market for truthful political information. We know, for example, that there is a relationship between partisanship and misinformation (see, e.g., here, here, and here). There's literature, and debate, on the role of motivated reasoning on assessing the accuracy of information (see, e.g., here vs. here). Moreover, as some researchers have demonstrated, the demand may be asymmetrical (see, e.g., here and here; conservative or Republican voters may be more likely to believe misinformation and there is evidence of partisan asymmetry with respect to cures to misinformation. If voters are filtering information based upon their partisanship or other identities that are salient to them or if they are seeking information that is consistent with their priors, then the Akerlof model is less apt.”

If Guy is right, then we have a much harder problem to deal with, and the solution, is to focus efforts less on those who crave misinformation because it comports with their world views and makes it easier to deal with loss of status and economic and political power, and more on those in the middle who remain persuadable and open to the truth. The only hope for reaching some kind of political stability in this view is for a left and center-right coalition committed to ideals like the rule of law, a key point I raise near the end of Cheap Speech. And yet political polarization makes achieving such a coalition harder than ever. The challenge is especially large because one of the two main political parties remains enthralled by a serial election disinformation machine in Donald Trump.

Broader Challenges for Society

Mary Anne Franks helpfully and depressingly reminds us that the problems caused by the cheap speech era extend far beyond the electoral realm. She praises Cheap Speech for its “refreshingly anti-fundamentalist” approach to questions of free speech and disinformation, and she appreciates the “humility” with which I tried in the book to stay in my lane and address only questions related to elections and politics. But she rightly points out that electoral disinformation is hardly the only urgent social problem caused by cheap speech. Mary Anne notes: “Women experience higher levels of harassment, rape and death threats, and image-based sexual abuse such as ‘revenge porn’ and ‘deep fake’ porn than men. These practices are often expressly intended to silence and intimidate women, especially women in positions of power, and they are very effective in disrupting women’s employment, educational, and expressive opportunities. . . . As Hasen makes clear in the opening pages of his book, his focus is on fair elections, and so it is not surprising that his proposal is confined to political deep fakes. That said, the vast majority—96%, according to a 2019 report—of deep fake videos to date are pornographic, and of those, 100% feature women. . . . Like other forms of nonconsensual pornography, deep fake pornography violates victims’ autonomy, harms their reputations and careers, and jeopardizes their physical, psychological, and emotional welfare.”

Mary Anne argues that “when laws are passed or proposed to address political deep fakes but not pornographic ones, it reinforces the message that sexual harms are distinguishable from and less important than other kinds of harms. It fails to emphasize that threats to women’s autonomy and expression are also threats to democracy.” That’s certainly not a message that I would want any reader to take away from Cheap Speech, but the point is a fair one. It demonstrates that the threats to democracy come in a variety of forms, and some have a particularly disparate impact. And it also demonstrates that legislative solutions may be even harder to come by when one considers both the complexity and political resistance that broader reform proposals may engender.

The Way Forward

In concluding these thoughts about the reactions to Cheap Speech, I’m reminded of the title of the excellent Tom Mann and Norm Ornstein book, It’s Even Worse Than It Looks. The U.S. political system is indeed hurtling toward crisis, with millions of people believing the false claim that the 2020 election was stolen, a false belief that makes holding a free and fair election in 2024 much harder. These excellent contributions to Cheap Speech serve as sober reminders that there is no magic bullet to save American democracy in this age, and that even the best-intentioned ideas may prove inadequate to a moment of profound threat to the kind of democracy that we in the United States have long taken for granted.

Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. You can reach him by e-mail at rhasen@law.uci.edu.

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