I have written this oped for Sunday’s Los Angeles Times Opinion section. It begins:
The Internet and social media did not create white supremacist movements in the United States, such as the hate groups that rallied in Charlottesville, Va., last weekend to deadly results. Nor did the Internet create Donald Trump, who defended the Nazi protesters as “very fine people.” Trump was a demagogue long before he became @realDonaldTrump on Twitter. And there was plenty of “fake news” before there was Facebook.
The rise of what we might call “cheap speech” has, however, fundamentally altered both how we communicate and the nature of our politics, endangering the health of our democracy. The path back to a more normal political scene will not be easy.
As Trump’s presidency should make obvious, we do not want the government to have the power to ban speech it dislikes — what the White House considers “fake news.” 1st Amendment protections rightfully would prevent such legislation, anyway.
Still, in the era of cheap speech, some shifts in 1st Amendment doctrine seem desirable to assist citizens in ascertaining the truth. The courts should not stand in the way of possible future laws aimed at requiring social media sites to identify and police false political advertising, for instance.
Of course a new conservative Supreme Court is more likely to make things worse than better. It might hold, for example, that it violates the 1st Amendment to bar fake campaign news distributed over social media by foreign governments. Or it might strike down laws that help voters figure out who is paying for political activity (under the dubious argument that transparency measures violate a right to anonymity).
Ultimately, nongovernmental actors may be best suited to counter the problems created by cheap speech. Tech companies such as Facebook, Google and Twitter can assist audiences in ferreting out the truth. 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.
This piece is based on my forthcoming law review article, “Cheap Speech and What It Has Done (to American Democracy).”