Vol. 32 No. 6 (July 2022) pp. 84-86 CHEAP SPEECH: HOW DISINFORMATION POISONS OUR POLITICS—AND HOW TO CURE IT.
by Richard L. Hasen. New Haven: Yale University Press. pp.245. Cloth:. $27.50. ISBN: 978-0-300-25937-7.
Reviewed by Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.
About halfway through CHEAP SPEECH, Rick Hasen asks what is perhaps the key question in contemporary debates about speech regulation: “If the First Amendment were no impediment to regulation, which laws would work best to deal with cheap speech problems for voters?” (p.81). In the end, he acknowledges that “[i]t is uncertain whether the Supreme Court will accept as consistent with the First Amendment my proposed cures for the [cheap speech] poisoning our politics” (p.165). In between those passages, he offers several suggestions about how to resolve the impact that cheapened speech has had on American elections and, more broadly, American democracy.
CHEAP SPEECH is a noble effort that addresses what Hasen aptly describes as the poisoning of American (and, of course, global) political discourse. He offers a balanced assessment of the debasement of political debate, and the exacerbation of political divisions in the United States over the last decade. In the end, he essentially calls for the strengthening of government, political parties, journalism, and other mediating institutions. This would, Hasen hopes, restore order to politics and political discourse by creating means where political information can be screened for accuracy and where the credibility of disseminators of information can somehow be clearly determined. The question, of course, is whether this would be possible.
This is an important book and a powerful plea by one of the nation’s leading observers of elections and constitutional law. But, in the end, it does leave the reader hanging with uncertainty because, as Hasen acknowledges, his proposals unquestionably test the boundaries of the Constitution and prevailing understandings of the First Amendment. This is not to say that the debate should end here. Constitutional understanding evolves, and there is no reason to think that the scope and definition of “free speech” cannot or should not evolve in the same way that constitutional notions of privacy, search and seizure, equal protection, and so forth have morphed over the course of the nation’s history. In this respect, Hasen’s CHEAP SPEECH fits comfortably on the bookshelf next to Mary Anne Franks’ THE CULT OF THE CONSTITUTION. She calls for a less extreme approach to interpreting “free speech” toto enable the nation to address challenges posed by social media’s capacity to generate revenge porn and deep fakes. Hasen similarly asks for a re-articulation of free speech that would address and accommodate the realities of a social media-driven political process.
I agree with Hasen (and Franks) that a re-articulation is necessary. Technology, social media, and money have changed the context of politics and political discourse. It is at best inapt, and at worst, dishonest to pretend that the 19th and 20th century notions of “the marketplace of ideas” are adequate to describe and manage the challenges posed by 21st century speech. But, one wonders whether proposals such as Hasen’s (even if the Supreme Court declared them constitutional) would be adequate or sufficient. The “poison” in our politics, and in free speech around the world, is due to the successful democratization (or, at least, decentralization) of political power, the capacity to generate, and the ability to consume information. Accordingly, since the late 1960s, the power of political parties has waned as the direct primary and campaign spending laws have moved their control over the nomination process to candidates and voters.
Similarly, Hasen laments that the vast expansion of corporate media power and the rise and spread of social media have undermined the quality of journalism. On one hand, the concentration of media power in a small number of corporations has come at the expense of local, independent journalism, and the diversity of perspectives it once provided. In contrast to this concentration of media power, social media has had a centrifugal impact. By enabling the creation of countless sources of information, social media has blurred the distinction between “news” (generated by professional journalists and organizations that can be held accountable for error and malice) and “fake news”. The latter proliferates because those who produce it really can’t be held accountable because they have little to lose (in terms of corporate wealth or assets) if they propagate misinformation (Volokh 2021).
Hasen is no Pollyanna. He notes that a law “giving the government the power to remove misleading political speech from social media sites” (p.81) would play into the hands of partisan censorship. There would also require the creation of a government body empowered to decide if social media companies were being evenhanded (Ibid.). He suggests stronger disclosure provisions for campaign spending and for social media platforms to indicate when posted videos had been altered (p.101). All of this would be grounded on the government’s “compelling interest in promoting voter competency and access to truthful information” (p.98) so that voters could make informed decisions on Election Day.
All of Hasen’s suggestions are reasonable in theory. But, in practice, they require a balance of the watchmaker's delicacy. Hasen acknowledges this:
“We do not want a First Amendment so absolute in its speech protection that it blocks laws that would chill little speech but ameliorate social harms. Laws should aim for the sweet spot that helps voters make decisions that are consistent with their values and interests and that preserves democratic government but does not inhibit the free expression of valuable information and ideas” (p.82).
Defining and locating that “sweet spot” is a Sisyphean task. Cheap speech and easy access to social media enabled the Trump campaign to assault on the integrity of the electoral process. It enables Macedonian hackers to proliferate fake news in support of the Trump campaign in 2020. Finally, it gave Russia’s IRA the tools to use $200 worth of Facebook pages to generate a confrontation outside an Islamic center in Houston in 2016 (49). Reading accounts like this, it takes little to convince the reader that something needs to be done. But, it is not clear if the government actually has the power to do what would be necessary to remedy the damage done by cheap, democratized speech.
Hasen acknowledges that success will depend on the cooperation of private entities—beginning with social media platforms taking a stand, and policing their content. But, how do we control powerful media corporations (and ensure their evenhandedness as we would that of social media)? Technology, wealth, and the democratization of power have vastly expanded the scope of the political universe and the number of powerful actors playing a role in it. Yet, government power has not grown proportionately. Accordingly, Hasen paints a picture in which the government must somehow accumulate enough new power—or reacquire old power that it ceded—to enable it to police this digital universe in the way it once administered a terrestrial one. How can this be done without a shift towards centralization or, worse, authoritarianism?
In 1948, Wendell Smith said that, “nothing was killing Negro baseball but Democracy”. As I read Hasen’s CHEAP SPEECH, Smith’s quote came to mind frequently. Democratic politics is suffering from 50 years of successful democratization and privatization of political power, the destruction of mediating institutions, and, as a result, the relative weakening of government to pursue the public interest. One wonders whether, even if we could implement Hasen’s suggestions, they would be sufficient enough to clean up the poison in our politics without creating the possibility that the government would become an Orwellian threat to freedom.
Nonetheless, Hasen and others are correct that something needs to be done. In CHEAP SPEECH, Hasen offers what one assumes is a first attempt at describing that “something”. Readers will look forward eagerly to the next.
REFERENCES:
Franks, Mary Anne. 2019. THE CULT OF THE CONSTITUTION. Cambridge: Harvard University Press.
Volokh, Eugene. 2021. “What Cheap Speech has Done: (Greater) Equality and its Discontents.” UC DAVIS LAW REVIEW 54 (3): 2305-2340.
© Copyright 2022 by author, Mark Rush.
