Jurisprudence

How “Cheap Speech” Threatens Our Electoral System

And what we can do about it.

Election workers set up voting booths at the Amway Center, the home arena of the Orlando Magic, on Oct. 15, 2020.
Election workers set up voting booths at the Amway Center, the home arena of the Orlando Magic, on Oct. 15, 2020. Paul Hennessy/NurPhoto

Much has been made about the power of misinformation to undermine public health efforts to contain the coronavirus, to prevent people from getting vaccinated, or to spread baseless conspiracy theories about anything from elected officials to mobile phone technology. But what role does misinformation play in influencing voter behaviors and undermining our nation’s electoral system? And how does the First Amendment enable such speech while also offering us tools for curtailing this crisis?

Election law professor at University of California, Irvine, Rick Hasen, has documented the myriad threats misinformation poses to election integrity. In this week’s Amicus, Dahlia Lithwick sat down with Hasen to discuss his forthcoming book, Cheap Speech: How Disinformation Poisons Our Politics–and How to Cure It.

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Their conversation has been edited and condensed for clarity.

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Dahlia Lithwick: Before we get any deeper on the substance of it, I do want to give you a chance to explain the term cheap speech, which is the title of the book, but you credit Professor Eugene Volokh in the ‘90s with coining it. Can you just tell us what you put in that category of cheap speech?  

Rick Hasen: Eugene Volokh wrote a law review article in 1995 in the Yale Law Journal called Cheap Speech and What it Will Do, and it was a very prescient article in a number of ways. He predicted the rise of things like Spotify and Netflix, and just saw this information revolution and he recognized that it would cause a decline in the value of intermediaries. Think of Walter Cronkite as kind of the ultimate intermediary who can tell you that’s the way it is. And Volokh asked, “Is this going to be okay for democracy? Are people going to be able to stand up to the times? I’m confident they will, but others disagree.” That’s what he wrote in 1995.

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By cheap speech he meant the ability to share thoughts, inexpensively. So if you saw an article in the New York Times in the 1980s, and you strongly disagreed with it, aside from handing out pamphlets on a street corner, really your only option would be to write a letter to the editor to the New York Times and hope that it would be published. And your chances of being published, given the volume, were quite small. Now, anybody who has any thought about any New York Times article or about anything else has a free platform. All you have to do is give up your right to privacy and share your data with these companies. And then they’ll let you say whatever you want, to whatever audience you can muster. And of course, the more outrageous you are, the more likely it is you’re going to attract more eyeballs. And so that creates an incentive to produce more bad speech.

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By cheap speech Volokh meant just cheap, that is inexpensive to produce and disseminate. But I mean it in a double way: It is also cheap in that it is of lower value. I’m not calling it lower value speech in the sense of saying it should be censored. But I do think we can draw a distinction between the kind of speech that’s produced by thoughtful journalists and the kind of speech that’s produced in a troll farm in another country that’s just trying to gain some clicks for profit.

Dahlia Lithwick:  It’s the Cheetos of the speech world, because it’s, as you said, very attractive, it aligns with preconceived ideas, it’s inflammatory. It gets our hearts pumping. And so it’s in a weird sense, it’s fast food in that it’s all calories and not one thing that’s good for you. So it’s cheap to consume as well.

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Rick Hasen: I like your Cheetos example because before Cheetos existed, I don’t think there was a demand for Cheetos. And once you put it on the market there’s, “Oh yeah. I want this garbage.”

Dahlia: Can you talk for a second about the idea that the first amendment is predicated on a notion, which the founders clearly believed deeply, that more speech will always be better and that good speech will always drown out bad speech. One of the things you lead with is the notion that this isn’t a case where the truth, the good ideas, the fact based journalism or reporting rises to the top, because  it gets choked out by the cheap speech. You started to talk a little bit about why that happens, why this is not a marketplace that, left to its own devices, will surface the truth. Can you just help take us along in that analysis? 

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Rick Hasen: We have to start off with the fact that we are a very polarized society and our polarization began before the rise of cheap speech. It has to do with changes in American political alignments with the passage of the Civil Rights Act and the Voting Rights Act in the 1960s. As well as us sorting into two political parties: One that represents opinions, but the other side represents facts.

Dahlia Lithwick: Can you describe how this consumption of what I’m forever going  to call, “Cheeto Truth,” implicates voting behaviors. This is quite different from how alternative facts or misinformation affects our decisions about whether to get vaccinated, right? Your whole premise is that there are a million ways that bad facts, bad truths affect how we vote.

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Rick Hasen: The rise of cheap speech has had all kinds of implications. Number one, as I’ve already mentioned, is in the hands of people who are not acting in good faith. Cheap speech can cause a rapid decline in support for democracy and electoral institutions. Just look at the threats of violence that election officials have faced, which is driving those people out of office. And who’s coming into office? Well, some election candidates for office to be the chief election office service data, the secretary of state, and other roles who are parroting the false claim that the election in 2020 was stolen. And those are the people that are going to be running the election next time.

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But that’s only one of a number of pathologies related to elections that cheap speech causes. The rise of demagoguery, the decline in political parties is another. So if you’re Marjorie Taylor Green or Donald Trump, you don’t have to go through the political party to form your capital, to be able to become a political leader. You can go right to people with the most incendiary claims as possible and you are going to attract large campaign contributions. And so weakening of political parties means that there can be a political system in which more extreme ideas are accepted by political parties and come into the mainstream. And that creates conditions for further polarization. So even though this era didn’t cause polarization, it exacerbates that polarization.

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I also think that the decline in local journalism is another problem. The model for local journalism has collapsed. Local journalism is among the most trusted kind of journalism for people to get accurate information. But it’s being replaced by foreign actors and by Democratic and Republican party actors who are pretending to be journalists and put out websites that look like news sites, but are really just political propaganda. And that means that people are less likely to get accurate information, to be able to make voting decisions. And it’s harder to know who’s sending the messages because our campaign finance laws have not caught up.

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And so it’s very easy to pretend to be, if you’re a liberal Democrat in Alabama in 2017, to pretend you’re a Baptist group that’s supporting Roy Moore and wants to ban all alcohol in the state as Democrats did in a disinformation campaign. Or Russians in 2016 pretending to be Black activists who are convincing them that Hillary Clinton hasn’t done enough for the Black community and saying that people need to just stay home.

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So these are just some examples of the kinds of threats to rational decision making by voters, as well as threats to the acceptance and legitimacy of elections. This is a problem that pervades our system right now. And even if Donald Trump left the political stage entirely, I think these problems are going to be with us for some time.

Dahlia Lithwick: Do you want to talk for a little bit about some of your solutions? You have essentially disaggregated in the book, what the law can handle and what the law can’t handle. And part of the confounding problem here of course is the First Amendment. So can you give us a little bit of what you’re thinking of in terms of legal fixes with the caveat that the First Amendment precludes some fixes. And also, I think you note, the court is really changing in its thinking around the First Amendment right now.

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Rick Hasen: Over the last 20 years, I’ve thought of the Supreme Court as kind of libertarian and de-regulationist, at least among its conservative members in thinking about issues of speech. So for example, you have Justice Clarence Thomas who’s written that he believes that all campaign finance limits are unconstitutional under the First Amendment. You can’t limit how much people or corporations want to spend on elections. He also doesn’t even believe you can require much disclosure of those who are spending money on elections. And that itself creates a kind of problem for voters who can’t tell who’s trying to influence their opinions.

But it turns out that Clarence Thomas is not a full fledged libertarian when it comes to free speech. In a case involving Donald Trump’s ability to block people on Twitter, which came to be known as Biden versus First Amendment Institute, Thomas decided to use that opportunity to support a wacky argument that was first floated by Eugene Volokh. (Ultimately, the Supreme Court got rid of it because Trump was no longer president and the issue was moot) Thomas argued that social media companies could be required to carry the speech of candidates that they don’t like. Even if those candidates might be fomenting violence or spreading false claims about elections being stolen. This was clearly a response by Justice Thomas to the de-platforming by Twitter and Facebook, that is removing Trump from the platforms in the immediate aftermath of the January 6th insurrection.

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The legal theory that Volokh and Thomas have put forward is, social media companies are really like a telephone company. All they do is connect users and a state can pass a law that says they don’t have the ability to discriminate or can’t say, “Nazis can’t use the phone.” But it’s a false analogy because it depends on the idea that social media companies don’t curate speech when that’s exactly what they do. When they decide to remove pornography or hate speech, when they decide to promote certain posts and to demote others, when they build their algorithms, all of that is a means of promoting speech.

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So here’s Justice Thomas, just to give you an example, who would ban laws that I think under the First Amendment that we really need to help voters make decisions like laws that would require those who spend money on online ads to reveal who they are. You spend a million dollars on ads trying to convince people to vote for a particular candidate, you should have to disclose.

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And then on the other side, Justice Thomas has said that states can pass laws that would require the carrying of dangerous speech. This is what I mean by saying that the Supreme Court might stand as an impediment to passing laws that are necessary to promote a free and fair election system. And even so, even given these differences, I don’t believe that law alone can solve the problem. We need some political solutions to deal with this because, and it’s the same thing with the risk of election subversion that we face in the United States today, law is only going to be as strong as people’s willingness to obey it. And we have to start thinking about a broad civil society movement supporting truth and the value of the rule of law if we’re going to get out of this moment.

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Dahlia Lithwick: And that’s where the book ends: You’re saying we need to, even with the legal fixes, even with the technological fixes, even if we ask private companies to police themselves better just doesn’t get us to the outcome we need, unless we are very, very seriously thinking about improving civil society, improving discourse, better media trust and faith in institutions. How do we thread this needle of trying to convince folks that the media works when in fact the media is the problem, that voting works when in fact voting is the problem, the government works when in fact government is the problem? How do you foster and foment trust in democratic institutions, including the press, when it’s so clear that they are so far along the path of being discredited?

Rick Hasen: One thing I mentioned already is supporting local journalism and coming up with new business models for journalism. The other thing I suggest in relation to journalism is the creation of certain standards. So those media outlets that subscribe to certain sets of rules that conform with journalistic norms about truth telling, they would get a kind of seal of approval and they would police themselves. And so, if someone wants to claim that Breitbart, this right wing populous website, is entitled to the seal of approval, let them come before a board of journalists and argue about it. This is all private. This is not a government body I’m talking about. And then that seal of approval could then be used by Facebook and others that could appear next to this. And that would serve as a signal to voters as to what is reliable.

I think we need to pressure social media companies. And that includes Google, that runs YouTube and Spotify that runs podcasts to be policing misinformation. Not as a matter of law, not by passing a law saying the government will decide what’s true or false, but political pressure on companies.

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