Amer­ica pays a steep cost to prac­tice ‘cheap speech’

Austin American-Statesman Sunday - - BALANCED VIEWS - Ge­orge F. Will

That phrase was coined 22 years ago by Eu­gene Volokh of UCLA Law School. Writ­ing in The Yale Law Jour­nal (“Cheap Speech and What It Will Do”) at the dawn of the in­ter­net, he said that new in­for­ma­tion tech­nolo­gies were about to “dra­mat­i­cally re­duce the costs of dis­tribut­ing speech,” and that this would pro­duce a “much more demo­cratic and di­verse” so­cial en­vi­ron­ment. Power would drain from “in­ter­me­di­aries” (pub­lish­ers, book and mu­sic store own­ers, etc.) but this might take a toll on “so­cial and cul­tural co­he­sion.”

Volokh an­tic­i­pated to­day’s a la carte world of in­stant and in­ex­pen­sive elec­tronic dis­tri­bu­tions of only such con­tent as pleases par­tic­u­lar in­di­vid­u­als. In 1995, Volokh said that “let­ting a user con­fig­ure his own mix of ma­te­ri­als” can cause so­cial prob­lems: cus­tomiza­tion breeds con­fir­ma­tion bias — close-minded peo­ple who co­coon them­selves in a cloud of only con­ge­nial in­for­ma­tion. This ex­ac­er­bates po­lit­i­cal po­lar­iza­tion by re­duc­ing “shared cul­tural ref­er­ents” and “com­mon knowl­edge about cur­rent events.”

Tech­nolo­gies that rad­i­cally re­duce in­ter­me­di­aries and other bar­ri­ers to en­try into so­ci­ety’s con­ver­sa­tion mean that ig­no­rance, in­com­pe­tence and in­tel­lec­tual so­ciopa­thy are no longer bar­ri­ers.

Now, Richard L. Hasen of the Univer­sity of Cal­i­for­nia, Irvine of­fers a com­men­tary on Volokh, “Cheap Speech and What It Has Done (to American Democ­racy),” forth­com­ing in the First Amend­ment Law Re­view. Hasen, no lib­er­tar­ian, sup­ports cam­paign-spend­ing reg­u­la­tions whereby govern­ment lim­its the quan­tity of cam­paign speech that can be dis­sem­i­nated. Given, how­ever, that “in place of me­dia scarcity, we now have a me­dia fire­hose,” such reg­u­la­tions are of di­min­ished im­por­tance. As, Hasen says, us­ing the in­ter­net to tap small donors has “a de­moc­ra­tiz­ing and equal­iz­ing ef­fect.”

But, he cor­rectly says, cheap speech is re­duc­ing the rel­e­vance of po­lit­i­cal par­ties and news­pa­pers as in­ter­me­di­aries be­tween can­di­dates and voters, which em­pow­ers dem­a­gogues.

Courts have re­jected the idea of govern­ment bod­ies declar­ing cam­paign state­ments lies. But be­cause “coun­ter­speech” might be in­suf­fi­cient “to deal with the flood of bot-driven fake news,” Hasen thinks courts should not con­strue the First Amend­ment as pro­hibit­ing laws re­quir­ing “so­cial me­dia and search com­pa­nies such as Face­book and Google to pro­vide cer­tain in­for­ma­tion to let con­sumers judge the ve­rac­ity of posted ma­te­ri­als.”

Hasen errs. Such laws, writ­ten by in­cum­bent leg­is­la­tors, in­evitably will be in­fected with par­ti­san­ship. Also, his pro­gres­sive faith in the fic­tion of dis­in­ter­ested govern­ment causes him to pro­pose “govern­ment sub­si­diz­ing in­ves­tiga­tive jour­nal­ism” — putting in­ves­ti­ga­tors of govern­ment on its pay­roll.

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