Confronting Misinformation in the Age of Cheap Speech – Lawfare

A review of Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It (Yale University Press, 2022).

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In 1995, Eugene Volokh published a law review article in which he predicted that the rapidly growing internet would dramatically reduce the costs of distributing speech and that the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. The concept, which Volokh dubbed cheap speech, would mean that far more speakersrich and poor, popular and not, banal and avant gardewill be able to make their work available to all.

To say that Volokhs article was prophetic would be an understatement. More than a quarter-century later, the cheap speech that Volokh predicted has upended commerce, art, politics, news and community. Many volumes can and should be written about the effects of the rapid evolution of cheap speech on discrete areas of American life.

Fortunately, Rick Hasen has done just that. In Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It, Hasen takes on the lofty task of examining the impact of cheap speech on American elections, politics and democracy. Hasen has written an extraordinary, thorough and fair examination of the impact of misinformation on democracy. He examines the costs and benefits of cheap speech and presents carefully crafted proposals that attempt to address the harms without straying from core First Amendment values or from falling into a moral panic about misinformation.

Hasen expands on Volokhs concept of cheap speech, defining it as speech that is both inexpensive to produce and often of markedly low social value. Hasen devotes the first part of the book to an even-handed evaluation of the impact of cheap speech on American democracy. Hasen does not villainize the internet as the source of all that is evil about modern politics. There is no doubt that the rise of the Internet has had many free speech benefits, Hasen writes. We worry much less about media consolidation and scarcity of information than we did when there were just three main broadcast television networks and a handful of local newspapers in each area.

Of course, the discussion of the internets benefits to democracy is followed by a very long but. Hasen documents many information harms that have accompanied the digital revolution: contraction of local journalism, political operations disguised as news sources, reduction in public trust in institutional media and elections, deep fakes, Russian disinformation during the 2016 presidential campaign, and of course the lies that led to the storming of the Capitol on Jan. 6, 2021.

Hasen explores how the dissemination of cheap speech has shaped modern politics by weakening political parties, accelerating demagoguery of candidates and opening the door to more public corruption. The unique challenges posed by online platforms and the algorithms they use to amplify and target extremist content can further contribute to the spread of conspiracy theories and other misinformation. Hasen writes of the increased power that platforms wield in their decisions to take down or leave up political content.

Although he comprehensively outlines the potential harms of cheap speech on elections and democracy, Hasen readily admits that the magnitude of some of these harms is unclear, in part because of the opacity of the operations of many platforms and the lack of researcher access to their data. (Indeed, the extent of the harms of misinformation is the subject of much-needed and spirited debate.) Hasens candor about the unknown makes readers more likely to consider his ultimate assessmentthat from a voters perspective, the costs of cheap speech likely have outweighed the benefits.

More important than Hasens evaluation of the problem is the second half of the book, in which Hasen considers potential solutions to mitigate some harms of cheap speech. Too often, discussions about misinformation end in solutions that casually dismiss First Amendment principles. Other times, they simply conclude with despair and do not even try to address the problems. Hasenone of the nations most knowledgeable and respected election law scholarscould have gotten away with half-baked proposals to lop off large chunks of the First Amendment for the sake of saving democracy from cheap speech.

Nor would Hasen have been alone had he proposed sweeping limits to free speech. The First Amendment allows the government to limit some false speech, such as perjury, fraud, and defamation, but the Supreme Court has held that false speech is not categoricallyor even generallyexempt from constitutional protection. Nor can the courts easily carve out new exceptions just because they believe that the harms of certain speech outweigh the benefits. The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits, Chief Justice John Roberts wrote in 2010.

That hasnt prevented well-intentioned but impractical proposals to censor in the name of misinformation prevention. For instance, earlier this year, Washington Governor Jay Inslee supported a bill that would make it a jailable offense for politicians to tell certain lies about election administration. While such proposals are borne of legitimate concerns about misinformation, too often they do not fully account for fundamental First Amendment values that constrain the governments ability to regulate speech. After state lawmakers consulted legal scholars, they redrafted the bill to limit it to cases that meet the Supreme Courts standard for imminent incitement, a high bar that, if applied faithfully, would make it incredibly difficult for prosecutors to bring charges arising from many politicians election lies. Yet it still likely would have a chilling effect on many politicians who have well-founded concerns about election administration. Even if they likely would not be convicted under the law, why risk the prospect of prosecution and legal fees? (The bill died without receiving a vote in the state legislature.)

Of course, nine people have the power to redefine First Amendment protections for false speech. And two of those nineJustices Clarence Thomas and Neil Gorsuchhave argued that the Supreme Court should reconsider New York Times v. Sullivan, the vital 1964 ruling that requires public officials who are plaintiffs in defamation lawsuits to meet the high bar of actual malice. Among the cases that Thomas cited in support of the need to reconsider Sullivan was Pizzagate, the online conspiracy alleging that prominent Democrats ran a sex trafficking ring in a D.C. pizza shop, causing an armed man to enter the restaurant in December 2016 and fire three shots. Our reconsideration is all the more needed because of the doctrines real-world effects, Thomas wrote. Public figure or private, lies impose real harm.

But Hasen has not joined the calls for substantial abrogations to free speech. As Hasen recognizes, solving the problems created by cheap speech with sweeping new laws that limit speech would undermine some fundamental American values and a key part of our democracy: the benefits of robust and uninhibited political debate. Hasen also properly questions who, in a society animated by distrust, would do the regulating and how they would do it.

Rather than traveling down the censorial road that many others have traveled, Hasen relies on his deep knowledge of election and campaign finance law to suggest ways to mitigate some of the worst political misinformation harms.

Some of Hasens suggestionssuch as ensuring that state and local governments competently administer electionsdo not raise First Amendment problems. The proposals that do implicate potential free speech concerns valiantly attempt to stay within the strictures of the First Amendment. For instance, when Hasen suggests that Congress amend campaign finance disclosure laws to address online advertisements, he attempts to adhere to the Supreme Court precedent that has approved of some campaign finance disclosure requirements. Yet Hasen also recognizes that some justices who supported campaign finance disclosure laws no longer sit on the court, so how the current court would react to new requirements is uncertain.

Hasen also recognizes that it is hard to predict whether the Supreme Court would approve his proposal to require large online platforms to place labels on synthetically altered videos and images of politicians, addressing the concerns about deep fakes. Yet he presents a reasonable argument for such a proposal to survive even the most rigorous constitutional scrutiny and contrasts it with more constitutionally problematic bans on deep fakes.

Hasen argues that the government should have the power to ban false speech about the mechanics of voting, such as lying about when an election will occur or how people can vote. The Supreme Court has suggested that a states ban on speech that is intended to mislead voters about voting requirements and procedures would survive a First Amendment challenge. Hasen is appropriately careful to exclude from his proposed ban generalized claims that an election will be rigged or stolen, as well as postelection claims about stolen or rigged elections. The narrowness of this proposal means that it would not address much of the big lie that fueled the Jan. 6 storming of the Capitol, but it is far more likely to survive a First Amendment challenge than a more sweeping election misinformation proposal.

Hasen rightly resists the temptation to attempt to address misinformation through amendments to Section 230, the 1996 law that shields online platforms from many claims arising from third-party content. A wide swath of misinformation is constitutionally protected, and amending Section 230 could not eliminate that protection. He also correctly recognizes that repealing Section 230 would not address the claims that platforms are biased against conservatives, as the increased legal risk likely would cause platforms to take down more content. That is not to say that Hasen dismisses concerns about platform power; rather, he suggests addressing them via required disclosures about algorithmic tweaking of content, antitrust law and privacy laws.

Even if Congress were to adopt all of Hasens proposals and the courts did not strike them down, he recognizes that law is not a panacea. Law alone is not going to stop millions of people from believing the election was stolen when a president popular within his party repeatedly uses social media to advance the false claim that it was, Hasen acknowledges. He appropriately devotes the final chapter to extralegal solutions to problems caused by misinformation. Hasen recognizes the ability of social media platforms to more effectively address misinformation (as online platforms are not state actors that are bound by the First Amendment). To be sure, content moderation at scale is difficult, and many of the toughest decisions will inevitably attract some criticism. And while public pressure on platforms to moderate can be effective, pressure coming from the government could raise First Amendment concerns about jawboning. Hasen also correctly focuses on the need to invest more heavily in local journalism and improve digital literacy.

The book would benefit from a meaningful analysis of how other countries have confronted misinformation in recent years. Authoritarian governments oppressive use of fake news regulations would further bolster Hasens caution against broader restrictions on false speech. U.S. protections for false speech are not an accident. The First Amendment does apply to a wide range of false speech, but the experiences of these other countries illustrate why it should apply to this speech.

In the books conclusion, Hasen argues that the Supreme Court should recognize that First Amendment balancing must be recalibrated, though he recognizes that the risk of censorship and of stifling robust debate still must figure heavily in constitutional analysis. Recalibration of core First Amendment protections could lead to dangerous consequences. But such recalibration likely is unnecessary for many of the narrow and reasonable proposals that Hasen presents.

Misinformation has the potential to upend individuals, institutions and democracy. It is tempting to seek to address these harms via a radical rethinking of free speech protections. But balanced and narrowly tailored solutions, such as those that Hasen has proposed, are more valuable to this vital discussion.

The views expressed in this review are those of the author and do not represent the Naval Academy, Department of the Navy, or Department of Defense.

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Confronting Misinformation in the Age of Cheap Speech - Lawfare