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.