“Cheap Speech and What It Has Done (to American Democracy)”

I have written this draft for SSRN (forthcoming, in the First Amendment Law Review’s symposium on “Distorting the News: ‘Fake News’ and Free Speech“).  Here is the abstract:

In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners.

To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States.

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seems desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.”

Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.

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