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S2: The Supreme Court might stand as an impediment to passing laws that are necessary to promote a free and fair election system.
S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. I am Dahlia Lithwick and I cover those things for Slate magazine. And we’re going to drop in on this off week for the show. Because with all the excitement around Judge Katju Brown Jackson’s nomination to the Supreme Court last week, we ended up having to spike a conversation that feels simultaneously incredibly urgent and also depressingly evergreen. And that is a conversation about free speech, full speech and disinformation and misinformation. We want to talk about it, in part because it is the driver of so much election denialism, the collapse of institutions ranging from the media to government. Because amid the horrifying news from Ukraine and the pandemic, the phenomenon of what our guest Rick Hasen calls quote cheap speech makes it ever more difficult to fully understand what is happening or why. Or to know whether you can trust what you hear and even what you see. Slate Plus members are going to have access to an extended version of this interview. Thank you as ever to our Slate Plus members. And so now on to our guest. Richard Hasen is well-known to listeners of the show. He is Chancellor’s Professor of law and political science at UC Irvine School of Law. He’s co-director of UC Irvine’s Fair Elections and Free Speech Center. He’s a nationally recognized expert in election law and campaign finance reform and has appeared in many, many publications, including the New York Times, Wall Street Journal, Politico and, of course, Slate dot com. Rick and I actually collaborated on the voting series Election Meltdown in the winter of 2020. And in that series, he rather presciently warned about contested elections, voter suppression and, yes, inflammatory and false rhetoric around elections. His new book focuses on that latter problem. It’s called Cheap Speech, how Disinformation poisons our politics and how to cure it. And it’s published by Yale University Press. Rick Hasen, it’s great to have you back on Amicus.
S2: Well, it’s great to be with you. Last time I saw you, there was no pandemic or it was just starting, so it seems like it was maybe a decade ago, but it was just a couple of years ago.
S1: So I think the last time that we saw each other and I parenthetically think we maybe gave each other COVID on that stage. Who knows? But I’m thinking about that live show, Rick, which became the last episode of the Election Meltdown series. So there we were in person on stage in Washington, D.C. It was February of 2020, and we ran through a bunch of potential catastrophic election scenarios that could go wrong with the upcoming 2020 election. And some of the things you were worried about in election meltdown, both in the book and in our podcast, didn’t really happen. So the electrical grid did not come down on Election Day in Michigan in 2020. But as I said in the introduction, a lot of the things you were already worried about even back in 2020 did happen. So questions you were raising then about deepfakes, about inflammatory and polarizing rhetoric, real concerns about the impact all of those things might have on voter confidence. Some of those things really do form the spine of this new book. So I think I want to start with the somewhat forgive me cheeky question, which is you were already pretty darn worried about many of these things before the 2020 election. Could the subtitle of cheap speech just have easily have been you thought things were bad the last time?
S2: Well, I guess what I’d say is that election meltdown was an overly optimistic title for a book where I miscalculated in thinking back on election meltdown and all the many ways that things could have gone wrong. And as far as Ukraine is back in the news, I’m thinking about how the Russians practice first on Ukraine with their attack on the electrical grid before they were spreading Disinformation. They were spreading it there before they were spreading it here. I think the miscalculation that I made was assuming that if we could pull off an actual, well run election, that the kind of energy that there would be to spread false election speech, to say that the election is stolen or rigged would just simply lack the energy and collapse. And that’s not what happened. It turned out that we had a much harder time running a free and fair election in 2020 for reasons which none of us could have imagined, which was we were running an election in the middle of a pandemic. And even so, it was run remarkably well. We had to make a lot of changes. More people had to vote by mail. Polling times had to be changed. Primaries had to be moved. And yet the election was maybe one of the best elections we’ve run in the modern period, and it was certainly among the most watched to make sure that it was fair. And yet Donald Trump. 400 times between Election Day and November 23rd. Claimed falsely on Twitter that the election was stolen or rigged or some variation on that, and the end result is that here we are now well past the election, right? And already looking towards the next election, and not only do millions of Trump’s supporters believe the false claim that the 2020 election was stolen, despite any evidence to support it. Not only are states passing new laws that make it harder to vote, especially to vote by mail in the name of preventing this phantom fraud. Raising a new risk of voter suppression But a CNN poll back in September found that 59 percent of Republicans believing the false claim that the 2020 election was stolen is a key part of what it means to be a Republican that is buying into the Big Lie is part of the Republican identity. And so what I didn’t realize is how much the power of UNmediated lies about elections could permeate even absent a kernel of truth. And that really shows how fragile our election system is. And the confidence in that election system is because it really depends on losers, consent on the ability of an election system to produce a result that not only the winners, but the losers accept as legitimate.
S1: My follow on question was going to be why this pivot from all of the complicated machinery of elections in your last book to questions about speech and lying. But I think you’ve just answered it. And the answer is you can have the most highly functioning, immaculately pristine working election machinery. And if the lies somehow subordinated all that, it just doesn’t matter how good the election systems are. And I think what you’re saying is that’s why the pivot that the speech and I think the attendant loss of sort of dignitary or reputational harms for lying. And I know you talk about that in the book, but that stuff in the end can swamp everything else. And it’s so in Kuwait, it’s so hard to articulate because it’s just not the same as saying people in Georgia stood in line for seven hours, right? It’s something that is both everywhere and nowhere, and you’re trying to pin it down.
S2: Well, you know, the the book started off, and I had a draft of the book done before the January six, 2021, insurrection, and I had to completely redo the book and redo the book’s introduction because much of what I was talking about as possibilities how this kind of rhetoric can lead to violence actually led to violence and how it could lead to attempts to try to subvert election outcomes, actually led to a concerted effort by Trump and his allies to steal the election based upon lies lies, which I don’t believe could have gained the currency if we were living in, say, the same polarized era that we’re in today. But with the technology of the 1950s. So imagine that Donald Trump comes up to the presidential podium 400 times over three weeks between Election Day in November 23rd to say the election was stolen or rigged. Walter Cronkite’s not going to be repeating that to his viewers 400 times. It’s not going to be printed in the local newspaper or in the New York Times 400 times. It’s not going to gain the same resonance. And there are not going to be Facebook groups or the ability of people who buy into conspiracy theories, not only to find each other and to egg each other on, but to be able to organize for political action. And so while there are many benefits to our current system of communication, we have the knowledge of the world in the palm of our hands. We can organize for positive action. There is a dark side, and the dark side is one that attempts to be a demagogue. Attempts to undermine election legitimacy just have much more fuel in this communications regime than they would have 50 or 60 years ago.
S1: It strikes me listening to you, Rick, that one of the conversations we had a lot around the 2020 election was the weird byproduct of having this massively decentralized election system in the United States, which turned out to be actually a perceived weakness that was a strength. Part of the reason the system held is because it’s so decentralized, and I’m finding it really ironic that one of the things you’re saying about the media and I think this is descriptively correct. Is that part of the problem is that it is so decentralized. And you mentioned in the book that Walter Cronkite example, you know, we don’t all trust anything anymore. There is a third of the population that believes that every word in the New York Times is a lie. And here you have a problem where, as you say, the decentralization of the media solves a lot of problems. It also creates catastrophic problems in terms of misinformation.
S2: And to be clear, it’s not just social media, it’s the fragmentation of news. It’s Fox News. And remember when Fox News was not radical enough for the Trumpists during the 2020 post-election season? Trump told his viewers to go to one America news network to go to Newsmax, and they saw a huge spike. So there are alternative outlets, there are no barriers to entry. And one of the things I try to argue in the book is that when it’s really expensive to produce quality journalism and when it’s really cheap to produce. Misinformation and when it’s profitable to produce that misinformation, it can drive good information out, and that has a number of effects. Number one, it’s harder for voters to get accurate information about what’s going on and to discern what’s accurate. And number two, it creates a kind of feedback cycle. So one of the things I learned in researching cheap speech was how much profitability there is to producing the kind of wild conspiracy theories that people want to hear. The rise of Q and on the rise of conspiracy theories related to vaccines. The rise of election denialism. This is making some people rich, and it’s also creating this loop where the public demands more Disinformation to feed their denialism. And that’s what’s provided and even when it’s not intended. So someone who goes onto YouTube and watches a video that spreads a kind of claim of election denialism, maybe someone’s not sure about the claims about the 2020 election being stolen. They will be fed up by the algorithm at Google that runs YouTube. They’ll be fed up more and more extreme videos that will produce more conspiracies, ism and that will make people demand more. And so it’s a vicious cycle rather than a virtuous cycle in terms of misinformation. And, you know, for too long, we’ve given a free pass to these companies that just allowed this stuff to flourish
S1: before we get any deeper on the substance. 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. And can you just tell us what you put in that category of cheap speech as opposed to speech? I generally don’t like.
S2: Sure. So 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 professional article on 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, you know, Walter Cronkite as kind of the ultimate intermediary who can tell you that’s the way it is. And he said, You know, is this going to be OK for democracy or 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. And by cheap speech that 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. And so by cheap speech, Volokh meant just cheap that is inexpensive to produce and disseminate. But I mean it in a way it’s that, but it’s also cheap in that it is of lower value. And I’m not calling it lower value speech in the sense of saying it should be censored. That’s not the point. I’m making it all. But I do think we can draw a distinction between the kind of speech that’s produced, say, 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
S1: and maybe also cheap to consume, right? 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 and that it’s all calories and not one thing that’s good for you. So it’s cheap to consume as well.
S2: Well, I like your Cheetos example, because before Cheetos existed, I don’t think there was a demand for Cheetos. Yeah. And once you put it on the market that that’s oh yeah. You know, I want this garbage. No, no offense to the makers of Cheetos.
S1: I wonder if you would talk for a second. You started to say this, and I think it’s really helpful to the framing of your argument that the First Amendment is predicated on a notion. And the founders clearly believe this deeply that more speech will always be better and that good speech will always drown out bad speech. And as you say this, I don’t want to say naive, but I guess I will say in APT at this moment comparison to the marketplace of ideas. And 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, 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. But can you just help take us along that analysis? Because I think it otherwise it’s very hard to get to where you want to go.
S2: 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, you know, 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 and are sorting into two political parties, one that represents more liberal ideas and one that represents more conservative ideas. So already we were primed to a situation where people have different values and people have different respect for institutions that traditionally have been relied upon as reliable intermediaries for understanding the truth. This is a way I think it’s kind of a different cut at understanding why Donald Trump was so successful as a political leader in attracting support. Think about who he attacked. He attacked the press as the true enemy of the people. I mean, really something that no modern American president would have come close to, certainly not in public. He attacked the FBI. He attacked the judiciary and the legal system. He attacked the opposition party. He attacked his own party. And so all of these attacks? Tend to undermine those institutions in society that most people relied upon for fair and unbiased information. Right. It’s the same thing we see in government where Democrats and Republicans used to rely on estimates from the Congressional Budget Office to figure out what the effects of a budget change would be or on the American Bar Association to figure out if a judge was qualified or not. All of these things have gotten politicized. And as the intermediaries are being attacked, we have this new means of communication that’s opened up that has allowed those who are demagogues. Those who want to spread false information for or even incendiary if not false, information for political gain and for profit have the ability to reach those people directly. You know, just in the last few weeks, we’ve seen Donald Trump trying to launch a new Orwellian named social media app called Truth and try and create an alternative ecosystem of facts or what Kellyanne Conway once called alternative facts. What we might call lies just to bolster the arguments for the political agenda of these leaders. And so if you believe that COVID vaccines don’t work, you believe that Biden is senile, you know, you go through the litany of the things. If you can actually get people to believe them, then you can get them to support you politically and to support you financially. And so there’s just this emerging system where truth doesn’t rise to the top. And I don’t know if the marketplace of ideas ever was an accurate description of American society. But there’s no good social science evidence today that truth rises to the top. In fact, we see so much more of motivated reasoning where. You have kind of a preconceived conclusion of where you want to go on a particular factual question and you get there because of your political or other value based commitments. And so that sort of tendency of all of us to want to believe what is most consistent with our values is just supercharged in an era when it’s easy to get affirmation and it’s easy to move towards a kind of tribalism that discounts not just the other side’s opinions, but the other side’s facts.
S1: And maybe this is a good place for you to describe how this. Consumption of what I’m forever after going to call Cheeto Truth. How that implicates voting behaviors because I think you start and end with thinking about election systems. And this is quite different from how alternative facts or misinformation affects our decisions about whether to get vaccinated, right? I mean, your whole premise is that there are a million ways that bad facts bad truth affects how we vote.
S2: Right, and so the rise of cheap speech has had all kinds of implications. We can think about our friend Danielle Citroen’s work on privacy. We can think about the work that public health people are doing on vaccine misinformation. But you know, I’m not a technologist, I’m not an expert on this area of the law. Where I specialize is in elections. And what I see is that at least when it comes to American democracy, the rise of cheap speech has had a number of negative consequences. Number one, as I’ve already mentioned, is in the hands of people who are not acting in good faith. It can cause a rapid decline in support for democracy and electoral institutions. I mean, 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 officer of a state of secretary or in other roles 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. So a lot of election skepticism right now on the right. Just imagine if Jody Hice, who’s a member of Congress, he’s running against Brad Raffensperger, the secretary of state of Georgia Republican, who stood up to Trump and refused to find the eleven thousand seven hundred eighty votes when Trump had had made that call. Raffensperger may lose to Hice in a primary. Hice may be running the election someone who’s embraced the false claims that the 2020 election was stolen. Are Democrats going to believe it if it’s Trump versus Biden, too? And he says, Yeah, Trump’s won the state, right? So, you know, we’re in a position now where. There’s just so much Disinformation about elections that it’s going to undermine people’s confidence on both the left and the right as to how elections are run. And whether they can be run fairly, but that’s only one of a number of pathologies related to elections, the cheap speech causes, I talk about some others in the book The Rise of Demagoguery, The Decline in Political Parties. So if you’re Marjorie Taylor Greene or you’re 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’re going to attract large campaign contributions. You know, it was Donald Trump who really broke the mold. It was Democrats like Barack Obama who had an easy time raising small dollar donations. Republicans had a harder time with that. Mitt Romney didn’t get people excited about giving money to Republican candidates run for office, but Donald Trump did. And Marjorie Taylor Greene has. 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 coming to the mainstream, and that creates conditions for further polarization. So even though this Erick didn’t cause polarization, it exacerbates that polarization. I also think that the decline in especially local journalism because of the changing economics of the whole way that we fund newspapers used to fund newspapers through classified advertising. You know that first there was Craigslist and then, you know, all kinds of other online ways of selling things. The model for local journalism has collapsed. Local journalism is among the most trusted kind of journalism for people to get accurate information. 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. 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. But Hillary Clinton hasn’t done enough for the black community, and people need to just stay home. So there’s just 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 which pervades, you know, 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.
S1: And one of the things that you point out in the book is that while our kids may be learning enough media literacy to be able to disentangle what is a foreign bot and what’s coming out of a troll farm and what is a genuine piece of reporting this fall’s hardest on older voters who really do sometimes fall prey to the idea that if I saw it on YouTube, it must be true.
S2: Well, there certainly is a generational divide, but I would say it’s not all rosy on the young side, so it’s certainly true that older Americans are more likely to spread political Disinformation Disinformation related to elections than younger people. But the trends that I’m seeing among younger people is that they tend to discount everything they see and believe that all is or could be misinformation. And that’s dangerous to right, because if I think that what I see in what was a reliable source is no longer reliable, well, the I’m not going to pay for it. And then how are local newspapers and others going to survive if people are not interested in finding out the truth because they believe that the truth is essentially and discoverable because we’re amidst a sea of Disinformation? And so we can talk about media literacy, and that’s often one of the solutions that’s posed to the problem of our information system. But I don’t think that that alone is going to solve the problem. One of the things that we need and it’s, you know, kind of low tech as opposed to some of the more high tech solutions I talk about in the book, is subsidies for local journalism because I think that’s really where the key is if you look at something like the Texas Tribune or the Nevada Independent. These are organizations that were started by veteran journalists who were not relying on the same business model and have been producing strong, independent investigative journalism. But they depend upon donors. I mean, you can even think of The Washington Post or the L.A. Times as being subsidized by billionaires because they are, as you know, maybe we need this donation model as a way of trying to, you know, fight Disinformation by changing the economics of what it is to produce reliable information. And then we need the literacy piece to get people to be able to differentiate between that, which is of higher value in that which is not.
S1: Before we get to your other proposed fixes. I guess I want to ask this question of asymmetry, because even though I think you’re at pains throughout the book to say the left does it to the right, does it too? You know, we see it at both ends of the spectrum. I think you’re very quick to concede that there is a real asymmetry at work here. And I guess the question that I have is is that just because the right and here, I want to include all the different aspects of that, not just, you know, the Republican Party or the conservative movement in the United States, but the right generally. Is it that they are better at this or is it that consumers of those sources are more inclined to believe it or both?
S2: So I do think you’re right that there is an asymmetry to this and the causes of that asymmetry are complex. I think in part, it’s because the new coalition among the Republican Party is a coalition that is culturally anti-establishment and against academia and the media and those who are. We talked about motivated reasoning earlier, spreading information that leads to results that people don’t necessarily like. So there’s a greater demand right now on the right for Disinformation, but it is not only a problem of the right. And you know, one of the examples I talk about in the book is Democrats are absolutely convinced that there was collusion. I don’t say all Democrats, some Democrats and those on the left are absolutely convinced that there was collusion between Donald Trump and Russia during the 2016 election. And the evidence has not shown that the evidence has shown that Donald Trump was happy to have the support of Russians, you know, to try and help him in his campaign. That Russians did try to help get Donald Trump elected, but not that there was this collusion. And yet it remains kind of an article of faith that this has happened. Or take the example of the stories about Hunter Biden’s laptop. So looks like Hunter Biden’s laptop was stolen or somehow gotten from Hunter Biden, and information about it was reported about in the New York Post. And there’s a dispute today over whether or not that information that was in there, all the information that was in there was accurate. Maybe it’s relevant to politics. Maybe it’s not, but as a kind of. Overreaction to Russian propaganda about Hillary Clinton being spread during 2016 on social media, we had this clampdown by Twitter and Facebook that they wouldn’t even share the New York Post article about this. You know, the Hunter Biden story and that to me, is worrisome, too. You know, there can be an overreaction to the two worries about misinformation. Some things that we think are misinformation might later turn out to be true as we get more information. And so I want to be careful that although there’s no question that those on the right have been more prone to accept election related misinformation so far, they’re not the only ones. And there are reasons to believe that this could become a more widespread problem going forward.
S1: 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 maybe 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.
S2: Right, and I think that that’s really an important factor. Over the last 20 years, I’ve thought of the Supreme Court as kind of libertarian and deregulation. You know, 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 turns out that Clarence Thomas is not a full fledged libertarian when it comes to free speech in a case involving a tangential involving Donald Trump’s ability to block people on Twitter. Case that came to be known as Biden versus First Amendment Institute, which the Supreme Court got rid of because Trump was no longer present, the issue was moot. Clarence Thomas decided to use that opportunity to support a wacky argument that was first floated by Eugene Volokh, the author of that cheap speech article, and a few others 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, I mean, this was clearly a response by Justice Thomas to the de-platforming by Twitter and Facebook that is removing from the platforms of Donald Trump in the immediate aftermath of the Jan. six insurrection. And the legal theory that Volokh and Thomas have put forward is, you know, social media companies 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. You can’t say, you know, 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, so here’s Justice Thomas, just to give you an example. 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 $1 million on ads trying to convince people to vote for a particular candidate. You should have to disclose. And then the other side. Justice Thomas has said, you know that states can pass laws that must carry laws that would require the carrying of even dangerous speech. This is what I mean by saying in the book 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. So I think we could have a law, for example, that makes it illegal to lie on social media or elsewhere about when, where and how people vote, you know, saying you can vote by text. We had a case like that or Democrats vote on Tuesday. Republicans vote on Wednesday. But you probably can’t, consistent with the First Amendment. Ban lies about the last election being stolen. That goes really to kind of the heart of political speech. While laws that go to when, where and how people vote interfere with the election process itself. And so law alone can’t solve the problem, and 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
S1: and that’s where the book ends, with this, I think create occur where in fact you’re saying we need to even the legal fixes, even the technological fixes, even asking 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. And I guess that always is a point that you and I land on, no matter where we start, is 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, and that I’m just thinking of your reflection on how we’ve got a generation of young people coming up who I think legitimately have reason to believe that all media lies and that all government sucks and that elections don’t matter. And so I guess I want to ask you the question. I feel that I often ask you, which is 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?
S2: Oh, Dahlia, we’re going to end another podcast.
S1: No, I’m going to. We’re going to go happy after this. I’m telling you this is this is me pivoting to joy right here. But OK. I do feel like I need you to answer it because I need to know myself.
S2: Yeah, there are some things that we can do. I think there are some laws that could be passed and could make things better. And I describe those in the book, and I think some of those could sustain a constitutional challenge even before this very conservative Supreme Court conservatives and even the right word. But a Supreme Court that has, I think, the wrong ideas about the First Amendment in this current era. So what can we do outside of passing those laws? One thing I mentioned already is supporting local journalism and coming up with new business models for for journalists. 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, you know, if someone wants to claim that Breitbart, this right wing populist website is entitled to the seal of approval, let them come before a board of journalists and argue about it. This is all private, right? It’s 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. It’s not going to help everybody, but it will help enough people in the middle. I think we really have to worry about the middle because there is going to be this fringe that is never going to be convinced. I think we need to pressure social media companies, and that includes Google that runs YouTube and Spotify that runs podcast to be policing misinformation not as a matter of law, not by passing a law saying, you know, the government will decide what’s true or false. But political pressure on companies, you know, we saw this with the recent Joe Rogan vaccine issue to the extent that there can be public pressure on these companies. We need to bring it to bear and we need to build up institutions and think about, for example, the bar complaints bar associations that have gone after Rudy Giuliani, John Eastman, Sidney Powell, all those who’ve spread false claims that the election was stolen. I think we can help police in that way. It’s the same way that defamation lawsuits that have been brought by voting companies, these are kind of old tools that are being used in new ways to try to support election integrity. And, you know, we need better education always, you know, respect for the rule of law and for the scientific process and recognizing the scientific process is iterative. And when scientists get it wrong, it doesn’t mean that they haven’t told the truth. And that’s something that’s complex and needs further explanation. And so education is always a part of this, although I don’t think that alone is going to save us.
S1: Yeah, but I like where you’re going because I do like Rick landing on the fact that I think despite everything you’re describing and how worrying it, it genuinely is. There is an enormous. Desire for truth. I think that everybody, with the exception of a couple of people who are manipulating this misinformation Cheeto era for their own ends. But I think folks are starved for truth for what they deem to be better journalism. And I like the idea of clawing our way back there somehow, because it just feels as though there’s a reason, as you say in the book, that the press is so essential to democracy. And I think that aspiring to get that right feels more hopeful than perhaps my last question sounded. I wanted to give you a second to talk about voting qua voting only because I know that’s your day job and we’re heading into midterms and also heading into, I guess, the 2024 contest. What are you seeing that gives you pause and what are you seeing that gives you hope going into the next big election cycles?
S2: Well, so the biggest concern is even greater than the concern over voter suppression, which I believe is a real concern. At least some of these laws that are being passed in the states raise this risk. But even bigger than that is the risk of election subversion in 2024. And what I mean by election subversion is the loser of the election being declared the winner through some kind of manipulation of the process, whether that’s through violence or through an election official not accurately reporting election results or through some kind of attempt to manipulate the arcane Byzantine rules of the Electoral College and the Electoral Count Act. And Democrats spent the last year trying to pass this massive set of voting rights bills. The John Lewis Voting Rights Advancement Act, which I supported, as well as this very broad bill that was first called before the People Act and then the Freedom to Vote Act as it was pared back to satisfy Joe Manchin or satisfy and halfway when he voted for it, but wouldn’t vote to tweak the filibuster to actually get it made into law. Democrats spent all their time on a bill that was not going to pass and didn’t do what I thought should have been Job one on January 20th, 2021, when Joe Biden came in, which is make it much harder to try and do what Trump did and steal the election through manipulating the Electoral College rules. So one thing that gives me a little bit of hope is that there’s now a bipartisan group of senators who are interested in not only fixing the electoral count act in certain particulars, which are the laws that govern how Congress certifies the presidential election results, but also providing some protection for election workers and election officials and doing other things. So I’m really, really scared. Five. Alarm fire scared more scared than I’ve ever been scared about whether we can make it through a successful 2024 election because the 2020 election showed how so much of our election system depends on norms rather than laws, and depends on people acting in good faith. And now we know we have a lot of people who don’t act in good faith. But I do think that and I’ll end here on the positive note that. At least the people are aware of this, and there is some political movement towards making change and in the Senate, so maybe that will happen. But as I wrote in a New York Times piece that appeared around the time of the January 6th anniversary, the Democratic Party is not going to save us. The Republican Party either agrees with Trump about election subversion or is too afraid to speak up about Trump. So we’re going to have to have and it goes back to the same thing I say at the end of cheap speech. We’re going to have to have a broad based centrist coalition of people who may disagree about a lot of things, but they can agree that we should have an election system where you have a free and fair election and the winner of the election is the one that actually gets to take office. And that’s a pretty low bar. But I’m hoping that we could come together as a society and assure that that can happen for the 2024 election. We can get over this hump, get through the next few election cycles. I think we’ll be in much better shape.
S1: And I would just pause to say, I don’t think there’s a lot of people who do more than you do, Rick, to try to take that, which seems an abstraction and utterly theoretical and hard to pin down and explain in a way that helps folks at least begin to find their way toward both truth and hopefully after that, a solution. So really huge congrats on the new book, but also deep. Thanks for all the ways that you, I think, patiently explain and explain and explain again what it is that’s going on in these systems that sometimes are hard to penetrate. So Rick Hasen is Chancellor’s Professor of law and political science at UC Irvine School of Law and co-director of UC Irvine’s Fair Elections and Free Speech Center. The book is Cheap Speech, How Disinformation Poisons Our Politics and How to Cure It. Published by Yale University Press. Rick, thank you as ever for giving us some of your time and a little bit of your terror and all of your big brain.
S2: Thank you. Julian, thank you. You know for the many opportunities you’ve given me to talk about these issues, which I really do go to the heart of the American democracy that we both love so much.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in, and thank you so much for your letters and your questions and your notes. You can keep in touch at Amicus, at Slate.com, or you can always find us at Facebook.com slash Amicus podcast and we really do love your letters. Today’s show was produced by Sara Burningham. Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcast. And we’ll be back with another episode of Amicus in one short week.