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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Giving the People What they Want: Supplying the Demand for Disinformation
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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 gcharles@law.harvard.edu.
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