My New One in the NY Times: “How to Keep the Rising Tide of Fake News From Drowning Our Democracy”

I have written this guest essay for the NY Times, tied to the release of my Cheap Speech book tomorrow. It begins:

The same information revolution that brought us Netflix, podcasts and the knowledge of the world in our smartphone-gripping hands has also undermined American democracy. There can be no doubt that virally spread political disinformation and delusional invective about stolen, rigged elections are threatening the foundation of our Republic. It’s going to take both legal and political change to bolster that foundation, and it might not be enough.

Today we live in an era of “cheap speech.” Eugene Volokh, a First Amendment scholar at U.C.L.A., coined the term in 1995 to refer to a new period marked by changes in communications technology that would allow readers, viewers and listeners to receive speech from a practically infinite variety of sources unmediated by traditional media institutions, like newspapers, that had served as curators and gatekeepers. Professor Volokh was correct back in 1995 that the amount of speech flowing to us in formats like video would move from a trickle to a flood.

What Professor Volokh did not foresee in his largely optimistic prognostication was that our information environment would become increasingly “cheap” in a second sense of the word, favoring speech of little value over speech that is more valuable to voters….

The rise of cheap speech poses special dangers for American democracy and for faith and confidence in American elections. To put the matter bluntly, if we had the polarized politics of today but the information technology of the 1950s, we almost certainly would not have seen the insurrection of Jan. 6, 2021, at the United States Capitol. Millions of Republican voters would probably not have believed the false claims that the 2020 election was stolen from former President Donald Trump and demanded from state legislatures new restrictive voting rules and fake election “audits” to counter phantom voter fraud.

According to reporting in The Times, President Donald Trump took to Twitter more than 400 times in the almost three weeks after Nov. 3, 2020, to attack the legitimacy of the election, often making false claims that it had been stolen or rigged to millions and millions of people. In an earlier era, the three major television networks, The Times and local newspaper and television stations would most likely have been more active in mediating and curtailing the rhetoric of a president spewing dangerous nonsense. Over at Facebook, in the days after the 2020 election, politically oriented “groups” became rife with stolen-election talk and plans to “stop the steal.” Cheap speech lowered the costs for like-minded conspiracy theorists to find one another, to convert people to believing the false claims and to organize for dangerous political action at the U.S. Capitol….

The rise of anonymous speech facilitated by the information revolution, particularly on social media, increases the opportunities for foreign interference to influence American electoral choices, as we saw with Russian efforts in the 2016 and 2020 elections. Domestic copycats have followed suit: In the 2017 Doug Jones-Roy Moore U.S. Senate race in Alabama, Mr. Jones’s supporters — acting without his knowledge — posed on social media as Russian bots and Baptist alcohol abolitionists supporting Roy Moore in an effort to depress moderate Republican support for Mr. Moore. Mr. Jones, a Democrat, narrowly won that election, though we cannot say that the disinformation campaign swung the result.

The cheap speech environment increases polarization and the risk of demagogy by individual candidates. Representative Marjorie Taylor Greene of Georgia, who before entering Congress embraced dangerous QAnon conspiracy theories and supported the execution of Democratic politicians, need not depend upon party leaders for funding; by being outrageous, she can go right to social media to cheaply raise funds for her campaigns and political activities.

We now live in an era of high partisanship but weak political parties, which can no longer serve as the moderating influence on extremists within their ranks. Cheap speech accelerates this trend.

We cannot — and would not want to — go back to a time when media gatekeepers deprived voters of valuable information. Cheap speech helped fuel Black Lives Matters protests and the racial justice movement both before and after the murder of George Floyd, and virally spread videos of police misconduct can help catalyze meaningful change. But the cheap speech era requires new legal tools to shore up our democracy.

Among the legal changes that could help are an updating of campaign finance laws to cover what is now mostly unregulated political advertising disseminated over the internet, labeling deep fakes as “altered” to help voters separate fact from fiction and a tightening of the ban on foreign campaign expenditures. Congress should also make it a crime to lie about when, where and how people vote. A Trump supporter has been charged with targeting voters in 2016 with false messages suggesting that they could vote by text or social media post, but it is not clear if existing law makes such conduct illegal. We also need new laws aimed limiting “microtargeting,” the use by campaigns or interest groups of intrusive data collected by social media companies to send political ads, including some misleading ones, sometimes to vulnerable populations.

Unfortunately, the current Supreme Court would very likely view many of these proposed legal changes as violating the First Amendment’s free speech guarantees.

Much of the court’s jurisprudence depends upon faith in an outmoded “marketplace of ideas” metaphor, which assumes that the truth will emerge through counterspeech. If that was ever true in the past, it is not true in the cheap speech era. Today, the clearest danger to American democracy is not government censorship but the loss of voter confidence and competence that arises from the sea of disinformation and vitriol.

What’s worse, some justices on the court who otherwise fashion themselves as free speech libertarians have lately espoused positions that could exacerbate our problems. Justice Clarence Thomas, for example, has indicated that he would most likely treat social media companies like telephone companies and allow states to pass laws requiring them not to deplatform politicians who violate the companies’ terms of use (as Facebook and Twitter did to Mr. Trump), even those who constantly spread election disinformation and encourage political violence. Justice Thomas and Justice Neil Gorsuch have also signaled an interest in loosening up libel laws, as Mr. Trump has urged, making it harder for legitimate journalists to expose or criticize the actions of politicians.

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