Monday, April 11, 2022

Social Media and Democracy: An Institutional Perspective

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).

Yasmin Dawood

In a compelling new book, Cheap Speech: How Disinformation Poisons Our Politics – And How to Cure It, Rick Hasen provides a searing analysis of the true toll of disinformation on elections and democracy. A particularly valuable contribution is the book’s forensic account of the insurrection of January 2021. The book highlights the role of social media and disinformation in the events leading to the insurrection, and focuses in particular on President Trump’s involvement in spreading the false claim that the 2020 election was rigged and stolen. Brimming with illustrative examples, this accessible and engaging book threads together a host of topics—fake news, hyper-partisanship, polarization, voter distrust, foreign election interference—thereby illuminating the corrosive impact of disinformation on elections and democracy. Prof. Hasen also canvasses an array of solutions—both legal and extra-legal—and assesses their prospects for redressing the crisis of disinformation. This book is a must-read for anyone interested in disinformation and the future of democracy.

There is no question that the rise of social media or “cheap speech” raises pressing questions about the regulation of speech and the parameters of the First Amendment. But social media also has significant implications for institutions—particularly those institutions, whether in the public sphere or the private sphere, that play an important role in electoral and democratic processes. One of the great strengths of Cheap Speech is its attention to the institutional dimension of social media. As described by Hasen, the rise of social media has had a notable impact on intermediary institutions, such as political parties and traditional media venues. 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.

The communications revolution also has implications for intermediary institutions in the private sphere, most notably internet platforms, which are not only the carriers of disinformation but also its maximizers as a result of a business model that relies on algorithms and micro-targeting to increase engagement. Platforms are now front and center on the electoral stage—a perhaps unexpected role for which they are decidedly ill-equipped.    

However, the institutional dimension of social media and disinformation massively complicates regulatory and reform efforts. The question of how to regulate speech is complex enough. The marketplace of ideas approach to the First Amendment suggests that we should have faith in the eventual emergence of the truth, and conversely, that we should be highly skeptical of anything that approaches state censorship. On this view, there are many virtues of social media—its widespread availability, low cost of entry, and capacity to connect like-minded individuals in a common cause—and conversely, there are significant dangers to state-led content-based restrictions on disinformation. But if, as Hasen argues, the marketplace analogy is outmoded in light of the mechanics of social media and disinformation, and if we are now in a state of market failure, how should we protect electoral and democratic processes?

Prof. Hasen proposes legal solutions, including narrow restrictions on verifiable false election speech, disclosure requirements, banning micro-targeting for election advertising, and competent election administration. As noted in Cheap Speech, some of these legal solutions are accompanied by unintended consequences while others face hard-edged political realities: Congress may not be able to enact such measures, and even if Congress is successful in so doing, the Supreme Court may strike these measures down. Given the limits of the law, Hasen argues that private action—by individuals, social media corporations, nongovernmental organizations, and civic institutions—is also required to safeguard democracy. For instance, platforms could take additional steps to curb disinformation, including by “deplatforming” certain individuals as Twitter and Facebook did with respect to President Trump in the wake of the insurrection. However, Hasen rightly worries about self-regulation by media companies given the immense power of large platforms to moderate the content of political speech and thereby influence elections. Other suggested reforms include subsidizing local media, bolstering investigative journalism, strengthening reliable intermediaries, enhancing digital literacy, and promoting respect for science and the rule of law.

Addressing the problem of disinformation ultimately requires, among other things, strengthening a wide array of institutions. Given the scope of the reform project, I wonder whether we should be speaking about a “cure” as the title of the book suggests or if instead the objective is something more modest, say, preventing (or at least mitigating) the worst effects of disinformation? To be sure, Hasen is careful to highlight the political roadblocks and unintended consequences that would accompany each proposal, which suggests, perhaps, that the reference to a “cure” is aspirational, setting out what ought to be done in an ideal situation. This minor quibble aside, I should note that I am very much in agreement with the institutional focus of Cheap Speech. Drawing on the example of Canada, I have argued elsewhere for a “multifaceted public-private” approach, which employs a suite of complementary strategies—including disclosure rules, political ad registries, self-regulation by online platforms, norms-based initiatives, civic education, and digital literacy—to protect elections from some of the harms of disinformation while still safeguarding the freedom of speech. Because an electoral system is an interconnected network of institutions, processes, and actors, all of which must coordinate together to ensure electoral effectiveness and legitimacy, a multifaceted approach helps to strengthen points of vulnerability across the electoral ecosystem.

In sum, those who wish to minimize disinformation are not simply facing the dilemma of regulating speech but are also grappling with the challenges posed by managing institutions. Even if such reforms are difficult to implement in practice, Cheap Speech sheds an urgent light on the significant risks of disinformation, the enormity of what is at stake for democracy and elections, and the considerable work that remains to be done. In this way, the book itself is part of the solution—by raising awareness and providing a roadmap for reform.

Yasmin Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law and an Associate Professor at the Faculty of Law, University of Toronto, with a courtesy appointment in the Department of Political Science. You can reach her by email at

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