Mary Anne Franks has written this post for the Balkinization symposium on my cheap speech book. Her contribution begins:
Who pays for cheap speech? According to Richard Hasen, the answer is all of us. His book provides a compelling account of how cheap speech, which “is both inexpensive to produce and often of markedly low value,” comes at a high cost “whether disseminated on social media, search engines, news cable channels, or otherwise” (21). As Hasen describes in detail, cheap speech pollutes the information ecosystem, instigates violence, and threatens democracy itself.
Hasen’s book is refreshingly anti-fundamentalist in its discussion of free speech doctrine and practice, criticizing the selective and self-serving libertarianism that has led to the deregulated chaos in which Americans are now entangled. Acknowledging the “the market failure of our current approach to speech” (82), Hasen offers pragmatic, concrete solutions to the problem of cheap speech that range from disclosure requirements for altered digital material to bans on empirically falsifiable information. While remaining alert to the dangers of government censorship and the important of robust debate, Hasen calls for a “recalibration” of First Amendment balancing (164) that better serves the goals of a democratic, well-informed society.
From the outset, Hasen emphasizes the boundaries of his project. His focus is how cheap speech threatens free and fair elections in the U.S., not “on other key questions about the intersection of cheap speech and society, such as the loss of privacy and the potential for government to rein in the nonconsensual sharing of sexual images” (29). This kind of clarity and humility is admirable, not least because it opens the door for those who work on those issues to expand and engage with his insights. That is the opportunity I will take up here, not only because my scholarship and advocacy focuses on those issues, but also because I think these issues provide a useful way to test and contextualize Hasen’s proposals….