Balkinization: Who Pays for Cheap Speech?

Who Pays for Cheap Speech?

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).

Mary Anne Franks

Who pays for cheap speech? According to Richard Hasen, the answer is all of us. His book provides a compelling account of how cheap speech, which “is both inexpensive to produce and often of markedly low value,” comes at a high cost “whether disseminated on social media, search engines, news cable channels, or otherwise” (21). As Hasen describes in detail, cheap speech pollutes the information ecosystem, instigates violence, and threatens democracy itself.

Hasen’s book is refreshingly anti-fundamentalist in its discussion of free speech doctrine and practice, criticizing the selective and self-serving libertarianism that has led to the deregulated chaos in which Americans are now entangled. Acknowledging the “the market failure of our current approach to speech” (82), Hasen offers pragmatic, concrete solutions to the problem of cheap speech that range from disclosure requirements for altered digital material to bans on empirically falsifiable information. While remaining alert to the dangers of government censorship and the important of robust debate, Hasen calls for a “recalibration” of First Amendment balancing (164) that better serves the goals of a democratic, well-informed society.

From the outset, Hasen emphasizes the boundaries of his project. His focus is how cheap speech threatens free and fair elections in the U.S., not “on other key questions about the intersection of cheap speech and society, such as the loss of privacy and the potential for government to rein in the nonconsensual sharing of sexual images” (29). This kind of clarity and humility is admirable, not least because it opens the door for those who work on those issues to expand and engage with his insights. That is the opportunity I will take up here, not only because my scholarship and advocacy focuses on those issues, but also because I think these issues provide a useful way to test and contextualize Hasen’s proposals.

Specifically, the consideration of issues such as privacy and image-based sexual abuse reveal that while the answer to the question, “Who pays for cheap speech?” is indeed “all of us,” some of us pay more than others. Hasen’s book points to some aspects of this disparity, noting that while disinformation can be found across the political spectrum, conservatives are far more heavily invested in both promoting and consuming it and liberals are far more likely to be the target of it.

But another group that pays a disproportionately high cost for cheap speech is women. 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. Female politicians and journalists are particularly at risk. To take two recent examples, Democratic Congresswoman Katie Hill was forced to resign in 2019 after intimate photos of her were released without her consent by rightwing media outlets, while Rana Ayyub, an Indian journalist who writes for the Washington Post, was inundated with violent threats and depicted in a deep fake pornographic video in 2018 after making critical comments about India’s coverups of child sexual abuse.

Hasen is rightly concerned about the impact of deep fakes on democracy, given their potential not just to make the public believe false things are true, but also to make them believe true things are false— the “Liar’s Dividend,” as Robert Chesney and Danielle Keats Citron call it. Hasen discusses former President Trump’s use of the Liar’s Dividend when he claimed, a year after apologizing for the Access Hollywood tape in which he bragged about committing sexual assault, that the tape was not authentic. Hasen proposes that “[f]ederal and state governments should mandate truth-in-labeling laws requiring social media platforms and other websites with large numbers of users to deploy the best reasonably available technology to label synthetic media containing altered video and audio images of political candidates and elected officials as exactly that—altered” (97).

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. Since the source code to make pornographic deepfakes was widely publicized in 2018, a cottage industry of websites and applications offering to create custom deep fakes of ex-girlfriends, neighbors, and strangers based on innocuous photos and videos has spung up. 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.

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. Such an approach is also short-sighted, as women are often the first targets of technological abuse, but rarely the last. Each time policymakers ignore or downplay a technological threat so long as it is “only” used to sexually exploit women, society loses another opportunity to prepare for the day that the technology is weaponized against other people and for other causes.

Considering the reality of women’s experiences with cheap speech also helps illuminate the appropriate calculus for legislative interventions. Hasen writes that “requiring the labeling of deep fakes is a more narrowly tailored means” of addressing the problem “than laws that would punish deep fakes or require their removal from websites and social media platforms” (99). This is true, but it is also a less effective means. As Hasen himself points out throughout the book, it is not clear that disclosure or labeling has an appreciable impact on the public’s ability to accurately assess information. Perhaps even more importantly, it is not clear that disclosures have an appreciable impact on the public’s desire for accurate information. Here again, considering women’s experiences brings into focus how often the production and consumption of disinformation may be driven by the desire to defame, humiliate, silence, or intimidate, motives that cannot be effectively countered with improved labeling. Elsewhere in the book Hasen acknowledges the limitations of counterspeech; the injury inflicted by deep fakes, especially pornographic deep fakes directed at women, is immediate and largely unanswerable.

Once we have a fuller picture of who is paying for cheap speech, we also have a clearer picture of who is not: namely, those who create, promote, and profit from it. That includes not only the individuals who generate cheap speech, but also the social media platforms that amplify and monetize it. The most straightforward answer to why social media platforms are profiting from rather than paying for cheap speech is the broad immunity from liability they currently enjoy under Section 230. Consequently, Section 230 reform is a necessary (though not sufficient) condition for cleaning up our polluted information ecosystem.

Here, it is important to distinguish between the two primary provisions of Section 230: (c)(1) immunizes platforms from liability for content they leave up, while (c)(2) immunizes them for content they take down. Given that the reward for inaction and action is the same, it is no surprise that tech companies generally opt for inaction. It is entirely predictable that granting an industry the ability to “move fast and break things” without having to pay for them would lead to the firehose of cheap speech. In order to force tech companies to change their incentives and internalize some of the costs of their own practices, the protections of (c)(1) should be limited to speech wholly provided by third parties and denied to intermediaries who fail take minimum steps to address foreseeable harm.

Hasen does not address Section 230 reform directly, but he implies that it can or should be superseded by suggesting that federal and state officials could force websites to remove verifiably false election information when detected (110). Hasen spends far more time describing what platforms could voluntarily do to stem the tide of cheap speech: ban microtargeting of political ads; label synthetic media; improve disclosure requirements; pledge not to algorithmically favor particular candidate and set up voluntary inspection system. While he is certainly correct that the platforms could do any of those things, and indeed some platforms have done some of these things to some extent, the looming question is why for-profit corporations would voluntarily do anything that would fundamentally jeopardize its bottom line? Facebook effectively invented microtargeted advertising; it’s essential to their business model. The possibility that it would renounce a wildly profitable strategy out of some sense of civic commitment seems highly unlikely. Without Section 230 reform, online intermediaries simply do not have compelling incentives to behave more responsibly.

Even with Section 230 reform, there is good reason to doubt that social media platforms will ever have the institutional competence to, as Hasen describes it, “ensure robust, political debate” (145-6). Perhaps one of the most important steps we can take to restore our democracy is to reduce our dependency on social media and reinvest our attention and our resources in public education, traditional media, libraries, and other spaces for connection and deliberation. While the Internet may feel in some ways like a public square, it is in reality dominated by privately owned spaces to which we are granted access not for the purposes of public debate or democratic discourse, but to provide free labor and generate profit for billion-dollar corporations. One of the costs of cheap speech, it seems, is that we forget that we are paying for it.

Mary Anne Franks is a Professor of Law and Michael R. Klein Distinguished Scholar Chair, University of Miami School of Law. You can reach her by e-mail at mafranks@law.miami.edu.

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