Steep costs come with 'cheap speech'
In America's 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 at the dawn of the internet, he said new technologies were about to “dramatically reduce the costs of distributing speech,” which would produce a “much more democratic and diverse” social environment and drain power from “intermediaries” (such as publishers) but this might take a toll on “social and cultural cohesion.”
In 1995, Volokh said that “letting a user configure his own mix of materials” can breed confirmation bias — close-minded people who cocoon themselves in a could of only congenial information. This exacerbates political polarization. One result is distrust of all public speech.
Although Volokh leans libertarian, what he foresaw 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 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, forthcoming in the First Amendment Law Review.
Hasen, no libertarian, 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. 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.
Courts have rejected the idea of government declaring campaign statements lies. 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 ... to provide certain information to let consumers judge the veracity of posted materials.”
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.
George F. Will is a columnist for Newsweek and The Washington Post.