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.