The steep cost of cheap speech
A t this shank end of a summer that a calmer America someday will remember with embarrassment, you must remember this: In the population of 325 million, a small sliver crouches on the wilder shores of politics, another sliver lives in the dark forest of mental disorder, and there is a substantial overlap between these slivers. At most moments, 312 million are not listening to excitable broadcasters making mountains of significance out of molehills of political effluvia.
Still, after a season of dangerous talk about responding to idiotic talk by abridging First Amendment protections, Americans should consider how, if at all, to respond to “cheap speech.” 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. Each person can craft delivery of what MIT Media Lab founder Nicholas Negroponte called (in his 1995 book “Being Digital”) a “Daily Me.” 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. One result is a miasma of distrust of all public speech. Although Volokh leans libertarian, what he foresaw — “the demassification of the mass media” — led him to conclude: “The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren’t valid for new technologies, the law may have to evolve to reflect the changes.”
He warned about what has come about, odious groups cheaply disseminating their views to thousands of the like-minded. Nevertheless, he stressed the danger of letting “government intervene when it thinks it has found ‘market failure.’”
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. Voters are directly delivered falsehoods such as the 2016 story of Pope Francis’ endorsement of Donald Trump, which Hasen says “had 960,000 Facebook engagements.” He cites a study reporting approximately three times more pro-Trump than pro-Hillary Clinton fake news stories, with the former having four times more Facebook shares than the latter.
Hasen says that during the 2016 election, digital advertising revenue reached $1.4 billion, a 789 percent increase over the 2012 campaign, with Facebook and Google receiving 85 percent of it. Courts have rejected the idea of government bodies declaring campaign statements lies; besides, as Hasen delicately says, this is “an era of demagoguery and disinformation emanating from the highest levels of government.”
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.
The most urgent debate concerns the First Amendment implications of regulating foreign money that is insinuated into campaigns. This debate will commence when Robert Mueller reports.