Here is the introduction to Yasmin Dawood’s contribution to the Balkinization symposium on my Cheap Speech book:
n a compelling new book, Cheap Speech: How Disinformation Poisons Our Politics – And How to Cure It, Rick Hasen provides a searing analysis of the true toll of disinformation on elections and democracy. A particularly valuable contribution is the book’s forensic account of the insurrection of January 2021. The book highlights the role of social media and disinformation in the events leading to the insurrection, and focuses in particular on President Trump’s involvement in spreading the false claim that the 2020 election was rigged and stolen. Brimming with illustrative examples, this accessible and engaging book threads together a host of topics—fake news, hyper-partisanship, polarization, voter distrust, foreign election interference—thereby illuminating the corrosive impact of disinformation on elections and democracy. Prof. Hasen also canvasses an array of solutions—both legal and extra-legal—and assesses their prospects for redressing the crisis of disinformation. This book is a must-read for anyone interested in disinformation and the future of democracy.
There is no question that the rise of social media or “cheap speech” raises pressing questions about the regulation of speech and the parameters of the First Amendment. But social media also has significant implications for institutions—particularly those institutions, whether in the public sphere or the private sphere, that play an important role in electoral and democratic processes. One of the great strengths of Cheap Speech is its attention to the institutional dimension of social media. As described by Hasen, the rise of social media has had a notable impact on intermediary institutions, such as political parties and traditional media venues. Candidates and office holders can now connect directly with voters without needing political parties to serve as intermediaries. As a result, political parties are no longer engaging, at least to the same degree, in their historic role of screening and moderating extremist views, which has led to widespread ripple effects on political discourses and alignments.
The communications revolution also has implications for intermediary institutions in the private sphere, most notably internet platforms, which are not only the carriers of disinformation but also its maximizers as a result of a business model that relies on algorithms and micro-targeting to increase engagement. Platforms are now front and center on the electoral stage—a perhaps unexpected role for which they are decidedly ill-equipped.
However, the institutional dimension of social media and disinformation massively complicates regulatory and reform efforts. The question of how to regulate speech is complex enough. The marketplace of ideas approach to the First Amendment suggests that we should have faith in the eventual emergence of the truth, and conversely, that we should be highly skeptical of anything that approaches state censorship. On this view, there are many virtues of social media—its widespread availability, low cost of entry, and capacity to connect like-minded individuals in a common cause—and conversely, there are significant dangers to state-led content-based restrictions on disinformation. But if, as Hasen argues, the marketplace analogy is outmoded in light of the mechanics of social media and disinformation, and if we are now in a state of market failure, how should we protect electoral and democratic processes?…