Dan Tokaji for “Cheap Speech” Balkinization Symposium: “Why State Courts May Be Democracy’s Last Line of Defense”

Dan Tokaji has the first post up in a new Balkinization symposium on my Cheap Speech book. (Other contributors are:  Guy-Uriel Charles (Harvard), Julie Cohen (Georgetown), Yasmin Dawood (Toronto), Mary Anne Franks (Miami), Dan Tokaji (Wisconsin), and Eugene Volokh (UCLA).). Thanks to Jack Balkin and the contributors for making it all happen.

Dan’s post begins:

Cheap Speech 
is Rick Hasen’s best book yet, and that’s saying something.  His previous works have adeptly explored the Supreme Court’s election law jurisprudence, the corrosive impact of concentrated wealth on American politics, the oeuvre of Justice Scaliathe Voting Wars, and the prospect of Electoral Meltdown.  While all are worth reading, Cheap Speech is Hasen’s most important book to date because it confronts an existential threat to our democracy:  the proliferation of false information about elections and politics.  Hasen addresses these threats in a clear-eyed way and offers realistic responses to the quandary in which we find ourselves. 

This post follows one thread in the tapestry that Cheap Speech scrutinizes:  the crucial role of courts as a bulwark of truth and defense against the dark art of election subversion.  To grasp the magnitude of the threat, we need only look back to the 2020 election, as Hasen does in Chapter 1.  He begins by showing just how easy it was for former President Trump to spread the “Big Lie” that he’d actually won the 2020 election.  Bringing Joseph Goebbels’ reputed advice into the digital age, Trump incessantly tweeted false claims about electoral fraud and corruption to an audience all too willing to believe them.  As Hasen irrefutably puts it, Trump was “[t]he greatest spreader[] of election disinformation in the 2020 presidential election” (p. 1).  The most frightening aspect of Trump’s disinformation campaign was its efficacy.  Although the former President wasn’t successful in overturning the election result, he did manage to persuade most Republicans that the election was rigged against him (p. 44-45).  Twitter and Facebook eventually suspended Trump from their platforms, but by that time the harm had been done.  Hasen explains how the platforms’ algorithms amplified false and inflammatory speech (pp. 8-9, 71-72). With the demise of traditional media sources trusted across the political spectrum, Trump’s Big Lie seriously damaged public faith in the democratic process. 

Of course, Trump’s disinformation campaign was not completely successful, for reasons that are equally important – and offer at least a glimmer of hope.  The former president failed to overturn the result of the 2020 election, despite his unrelenting false attacks on the integrity of our election system that culminated in the January 6, 2021 attack on the U.S. Capitol.  At least this time, our democratic institutions withstood the assault.

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