Wednesday, April 13, 2022

Giving the People What they Want: Supplying the Demand for Disinformation

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).

Guy-Uriel Charles

Political disinformation, the subject of Rick Hasen’s latest book, Cheap Speech: How Disinformation Poisons our Politics–and How to Cure it, is one of the most important and vexing problems currently facing American democracy.  The opening chapter of Rick’s book sets up the stakes.  Rick vividly recounts how Donald Trump created a maelstrom of misinformation, attempted to use weaponize the “Big Lie” to overturn the results of the 2020 Presidential election, and succeeded in convincing some of his supporters to violently attack capitol.

Though the stakes of false information and misinformation are high for democracy, Rick treats the issues of false and disinformation fairly and comprehensively.  Rick’s legal solutions are modest and measured.  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. I would amend his proposal that the government ban empirically verifiable false speech about the mechanics of voting by applying such a law only to public officials, candidates, political parties, and the like.  Rick would apply the law to anyone who made a false statement about the mechanics of voting “whenever the statement is made on television, in a newspaper, or on social media, a website, or a messaging app.”  This strikes me as much too broad and unnecessarily so.  But the core of the idea, requiring public officials to be truthful about the mechanics of an election, strikes me as a reasonable one worth considering.  Perhaps Congress should amend 52 USC section 20511 along those lines.  Again, for the most part, with some minor exceptions, Rick’s solutions that rely on law are generally modest and largely unobjectionable.  Indeed, Rick is careful to emphasize the limits of law in addressing some of the issues raised by false information and misinformation. And his final chapter is devoted to an exploration of the possibilities of private ordering and the market.

On his own terms, there is very little to object to in Rick’s book. I do however wonder how we ought to think about the problem of disinformation and misinformation if we assume that the market for political information is operating efficiently and that the problem is not one of market failure, which is how Rick frames the issue. Rick defines cheap speech as “speech that is both inexpensive to produce and often of markedly low social value,” (21) and frames it as a problem of political market failure caused by information asymmetry (30).  He uses as his model a pathbreaking paper by George Akerlof, the Nobel Prize winning economist, entitled The Market for “Lemons”: Quality Uncertainty and the Market Mechanism.  In that famous paper Ackerloff explored how the information asymmetry between sellers and buyers with respect to the quality of certain goods might result in a market in which lower quality goods overwhelm high quality goods and in a reduction in the size of the market. For example, if you’re a buyer in the used car market, you can’t tell whether a seller is offering a reliable used car or a lemon, though the seller knows. To hedge the risk that you’re buying a lemon, you make a lower offer.  Potential sellers of quality cars are less likely to enter the market because buyers are unlikely to pay their asking price. The absence of sellers of quality cars leaves sellers of lemons in the market.  Buyers demand even greaters discounts on used cars to hedge against the now even greater risk that they are buying a lemon.  This drives even more quality sellers from the market and the downward cycle continues.

Rick analogizes voters to buyers in the used car market. Voters are in the market for truthful information, but political actors are offering both truthful and false information.  Because voters are being flooded with both truthful and false information, voters have a hard time distinguishing what’s true from what’s false. Consequently, “[b]ad information is driving out good, and voters discount all information as potentially unreliable.  This market failure undermines basic conditions of democratic governance; voters must be able to get enough reliable and accurate information about the state of the world to permit them to vote in line with their interests and values and have confidence in a fair and impartial election system.” (31).

It is unclear to me that the Akerlof model, which assumes that consumers are in the market for quality cars, is the right frame for thinking about political misinformation and disinformation.  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.  

Rick recognizes this potential problem. As he notes, “[i]t is as if there is a segment of the automobile market that not only tolerates but actually demands lemons while rejecting reliable cars” (79). But he does not fully explore this complexity. To the extent that voters are seeking information that is consistent with their partisan identities or confirms their priors, then the market is working perfectly. There is no market failure, given that the market is supplying precisely what the people want.  Republicans seek and get the information they like; Democrats seek and get the information they like.  Everyone gets to live within their echo chamber, and no one must be confronted with ideas and information that makes them uncomfortable.  Of course, this is no way to run a democracy.

Cheap Speech is extremely compelling on its own terms. At the same time, Rick’s exhaustive exposition raises the question whether we have the right model for understanding the problem. If the problem of misinformation presents a demand-side problem, or to the extent that there is both a demand-side and supply-side problem, supply-side only solutions are not likely to resolve the problem.  Similarly, to the extent that we have a supply-side problem, then demand-side solutions are not going to suffice.

If it is the case that political disinformation is at least about voter preferences as it is about politicians and social media platforms, solutions to the problem are much more complex.  Modern democracies are not very good about figuring out what to do when voters get exactly what they want and what voters want is actually bad for democracy. Tweaking the law and relying upon private ordering is less than optimal, if the goal is a resolution of the problem.  Rather, the focus will need to be on structural political and economic reforms.  Rick does a great job in helping us understand what’s possible.  The next step is coming to terms with what is necessary.

Guy-Uriel Charles is Charles J. Ogletree Jr. Professor of Law and Faculty Director, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. You can reach him by e-mail at

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