The dark side of ‘cheap speech’

As the price of something precious, the dissemination of speech, declines steeply, society is facing some disquieting consequences of the cheap speech that the internet enables. Among the anomalous responses are conservatives demanding new government regulations of privately owned but liberal-leaning businesses (Facebook, Google, Twitter). And liberals, who excoriated the Supreme Court’s Citizens United decision that corporations and unions have a constitutional right to fund speech about political candidates (independent of the candidates’ campaigns), are defending the freedom of some enormous corporations to influence political speech.

Such oddities are explored by Eugene Volokh in “What Cheap Speech Has Done: (Greater) Equality and Its Discontents” in the UC Davis Law Review. Volokh, law professor at UCLA, notes that the internet, by making it possible for almost anyone to speak to many others, has radically reduced the importance of the “oligarchy of speech” that existed when large media entities acted as gatekeepers to the public forum.

While the “old expensivespeech system” may have seemed “undemocratic,” at least the media owners were disciplined by market forces (loss of their audience’s confidence could be costly), they valued their reputations, and because they had financial assets, they were disciplined by the risk of liability for, say, libel. The democratic and egalitarian internet has, Volokh says, “the vices of those virtues.” The mainstream media had defects, but, says Volokh, they “didn’t offer much of a voice to people obsessed with private grievances, or to outright kooks, or to the overly credulous spreaders of conspiracy theories.”

Many people who spread hoaxes and “fake news” with a few clicks have no significant assets, financial or reputational, that are risked by issuing, say, defamatory falsehoods. The First Amendment generally protects reckless speech by the credulous or malicious from criminalization. And a controversial 1996 statute stipulates that internet content and service providers do not have the legal status of publishers or speakers of material posted by others.

Hence, says Volokh, “for much online material, there is no potential institutional defendant who might be held accountable.” Thus there is no “incentive to police speech.”

So, “courts have shifted to a remedy that had long been seen as categorically forbidden — injunctions against libel,” whereby continuing to libel someone becomes criminal contempt. Although modern laws against “criminal harassment” and “cyberstalking” were written to prohibit unwanted speech to a person (e.g., telephone harassment), some courts have used them — this is constitutionally problematic — against speech about a person.

Laws also can protect against invasions of privacy. North Dakota criminalizes intentionally or recklessly engaging in “harassing conduct by means of intrusive or unwanted ... words” that annoy or alarm a person by affecting his or her privacy. Minnesota lets judges enjoin “repeated incidents of intrusive or unwanted” words intended to adversely affect a person’s privacy. Volokh says “the era of ‘cheap speech’ has pushed courts and legislatures to criminalization — either through specific statutes or through the use of injunctions backed by the threat of criminal contempt — in order to deal with the danger posed by judgment-proof speakers,” of whom “there are millions.”

Newspapers, which cost money to publish and make money from advertisers and subscribers, are accountable in multiple ways. But because internet users can speak cheaply and without persuading “any intermediary about the worth of their speech, judges are likely to see much more speech that seems pointless and ill-motivated.” Volokh is rightly uneasy about courts enforcing such judgments. Today, however, three non-government intermediaries — Facebook, Google, Twitter — mean that control “is more oligarchical than ever.”

Supreme Court Justices Neil Gorsuch and Clarence Thomas have recently expressed dissatisfaction with the court’s 1964 ruling that public figures who claim to have been libeled must prove “actual malice” or reckless disregard for the truth. Gorsuch considers this standard essentially “immunity from liability” and suggests that it is responsible for “the publication of falsehoods by means and on a scale previously unimaginable.” Thomas agrees that the 1964 ruling, by protecting from libel suit “those who perpetrate lies,” has contributed to a “proliferation of falsehoods.” In 1993, Elena Kagan — then a law professor, now a colleague of Gorsuch and Thomas — said “the obvious dark side” of the 1964 decision “is that it allows grievous reputational injury to occur without monetary compensation or any other effective remedy.”

A right to protection from reckless reputational injury is implied. This, too, reflects what Volokh calls the legal system’s “struggle with the dark side of cheap speech.”