For the Balkinization symposium on Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics-and How to Cure It (Yale University Press, 2022).
Dan Tokaji
Cheap Speech is Rick Hasen’s best book yet, and
that’s saying something. His previous works
have adeptly explored the Supreme
Court’s election law jurisprudence, the corrosive
impact of concentrated wealth on American politics, the oeuvre
of Justice Scalia, the
Voting Wars, and the prospect of Electoral
Meltdown. While all are worth
reading, Cheap Speech is Hasen’s most important book to date because it confronts
an existential threat to our democracy: the proliferation of false information about
elections and politics. Hasen addresses
these threats in a clear-eyed way and offers realistic responses to the
quandary in which we find ourselves.
This post follows one thread in the tapestry that Cheap
Speech scrutinizes: the crucial role
of courts as a bulwark of truth and defense against the dark art of election
subversion. To grasp the magnitude of
the threat, we need only look back to the 2020 election, as Hasen does in
Chapter 1. He begins by showing
just how easy it was for former President Trump to spread the “Big Lie” that
he’d actually won the 2020 election. Bringing
Joseph
Goebbels’ reputed advice into the digital age, Trump incessantly tweeted
false claims about electoral fraud and corruption to an audience all too
willing to believe them. As Hasen
irrefutably puts it, Trump was “[t]he greatest spreader[] of election
disinformation in the 2020 presidential election” (p. 1).
The most frightening aspect of Trump’s disinformation campaign was its efficacy. Although the former President wasn’t successful in overturning the election result, he did manage to persuade most Republicans that the election was rigged against him (p. 44-45). Twitter and Facebook eventually suspended Trump from their platforms, but by that time the harm had been done. Hasen explains how the platforms’ algorithms amplified false and inflammatory speech (pp. 8-9, 71-72). With the demise of traditional media sources trusted across the political spectrum, Trump’s Big Lie seriously damaged public faith in the democratic process.
Of course, Trump’s disinformation campaign was not
completely successful, for reasons that are equally important – and offer at least
a glimmer of hope. The former president failed
to overturn the result of the 2020 election, despite his unrelenting false attacks
on the integrity of our election system that culminated in the January 6, 2021
attack on the U.S. Capitol. At least this
time, our democratic institutions withstood the assault.
The irony is that the 2020 election was exceptionally well
run in many respects, as Hasen and other
election experts have observed.
Election officials did a heroic job of managing unprecedented voter
turnout amidst a global pandemic in which many voters shifted from in-person to
remote voting. The percentage of people voting by mail more
than doubled, while the percentage voting in person on election day
declined to less than half its previous level. The public servants who labor in the trenches
of election administration deserved a pat on the back, not the barrage of
verbal and digital abuse they have endured.
A laudable example is Georgia’s Republican Secretary of State Brad
Raffensperger, who stood up to Trump’s call to “find” some 11,000 votes that
would allow him to reverse the result in that state. For good reason, then, Hasen sees competent and
impartial
election administration – boring as it may seem – as essential to
combatting misinformation and protecting the legitimacy of future elections
(pp. 83-85).
Another silver lining from the 2020 election is the performance
of courts. This turned out to be the
most litigated election in modern history, with over 500 cases
brought, many of them pandemic-related. As Hasen recounts, Trump and his allies filed
62 lawsuits seeking to challenge the 2020 election results, only one of which
succeeded on a minor issue (p. 157).
Rudy Giuliani, Sidney Powell, and other Trump lawyers made outrageous
claims of electoral malfeasance unsupported by competent evidence. Republican- and Democratic-aligned judges
alike rejected those claims. As Judge
Stephanos Bibas, a Trump appointee, memorably put it in a
Third Circuit opinion that Hasen quotes: “Free, fair elections are the
lifeblood of our democracy. Charges of unfairness are serious. But calling an election
unfair does not make it so. Charges require specific allegations and then
proof. We have neither here.” All in all, 86 state and federal judges rejected
the Trump camp’s electoral claims (p. 157).
The 2020 election litigation thus highlights the centrality
of courts in standing up to election-related falsehoods. Although many have come to believe the Big
Lie, those evidence-free claims gained no traction in court. Easy as it is to spread disinformation via
social media, lawyers can’t go into court making factually unsupported claims
and hope to get away with it. Professional
and court rules – including the prospect of attorney discipline and Rule 11
sanctions – constrain the conduct of lawyers.
As Hasen puts it, “courts’ public function as truth-telling bodies can
go a long way toward combatting disinformation about stolen elections” (p.
158). Hasen doesn’t pretend that courts can solve
all of democracy’s ills, but he’s right to argue that they’re a crucial defense
against false claims of electoral fraud.
Courts are likely to play an even more vital role in
protecting democracy against the pernicious effects of cheap speech in 2024 and
beyond. And given that election
administration in the U.S. remains primarily a matter of state law and local
practice, state courts will be especially vital. 2020 surely won’t be the last time a losing
candidate makes false claims of fraud in an effort to overturn an election
result. If the continuing fealty to the
former president is any indication, state legislators and election officials
may not have the backbone to stand up to those false claims next time
around. State courts could well be the
last firewall against election subversion.
To see why, consider the flurry of election-related
legislation we’ve seen since 2020. Even
more worrisome than laws making it harder to vote are attempts to remove
authority from the local or state election officials and place it in the
hands of partisan actors – perhaps even the legislature itself. There are arguments under the U.S.
Constitution or Voting Rights Act that might be made against such state laws. The U.S. Supreme Court, however, has made it
more difficult to prevail by hardening the Purcell doctrine,
which generally prohibits federal courts from issuing injunctions shortly
before an election. And even without Purcell,
the most diabolical efforts at election subversion are likely to defy
federal-law remedies.
Let’s imagine some of the nightmare scenarios that might be
used to overturn a presidential election based on false claims of electoral corruption,
as Matthew Seligman does in this
terrific draft article. One
possibility is that a state legislature dissatisfied with the election result
could enact post-election legislation appointing electors – effectively
declaring the losing candidate the winner.
We can imagine due process and equal protection arguments against such a
law, but it’s far from certain they would prevail. That’s especially true if the state
legislature were to find that the election was so flawed that the state “failed
to make a choice” on election day, thus triggering the Electoral Count Act
provision allowing the state legislature to appoint electors on a “subsequent
day.” Rick Pildes has aptly described this provision as a loaded
weapon, lying around for an unscrupulous state legislature to invoke.
An even more devious possibility that a state legislature
might act before the election, adopting legislation that makes the state
legislature itself – rather than state courts – the final arbiter of
presidential election results. If the
election doesn’t turn out the way the legislature wants, it could later invoke
this authority to declare its preferred candidate the winner. Here too, we can imagine federal
constitutional or statutory claims that might be asserted. But the best we can probably hope for from
the current U.S. Supreme Court is noninterference. There’s a genuine risk that the Court will
breathe life into the so-called “independent
state legislature” theory, which should really be called the unfettered state
legislature doctrine. In its most robust
form, this argument posits that state legislatures have plenary power over
presidential elections that can’t be constrained by state courts, state
constitutions, or even Congress.
Provided this pernicious theory remains just a theory, state
legislatures will remain constrained by state constitutions and state
courts. That will enable them to check
state legislative attempts to overturn an election result based on false claims
of electoral fraud or corruption. For
example, if a state legislature arrogated to itself the authority to determine
the winner of a presidential election, before or after election day, a state
court might find that this legislature has exceeded its powers under the state
constitution. Alternatively, it might
find that state constitutional voting rights have been violated. Given the strong performance of state courts
in the 2020 election, there’s good reason to believe that they will be more
trustworthy arbiters than state legislators or executive branch officials. As the Trump camp’s judicial misadventures in
the 2020 election demonstrate, it’s hard to get away with unsupported factual
claims in courts of law.
Hasen’s latest book paints a devastating picture of the
harms to American democracy arising from the proliferation of cheap
speech. As he persuasively argues, law
alone can’t fix these problems. But our
legal institutions – and particularly state courts – have the capacity to stop
some of the most perilous attempts to overturn election results based on
misinformation and disinformation. We
can only hope that the U.S. Supreme Court will stay out of their way.
Dan Tokaji is the Fred W. and Vi Miller Dean and Professor of Law at the University of Wisconsin Law School. He is a co-author of Election Law: Cases and Materials with Professor Hasen. You can reach him by e-mail at tokaji@wisc.edu.