Jeff Kosseff reviews my book Cheap Speech at Lawfare:

To say that Volokh’s article was prophetic would be an understatement. More than a quarter-century later, the cheap speech that Volokh predicted has upended commerce, art, politics, news and community. Many volumes can and should be written about the effects of the rapid evolution of cheap speech on discrete areas of American life. 

Fortunately, Rick Hasen has done just that. In “Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It,” Hasen takes on the lofty task of examining the impact of cheap speech on American elections, politics and democracy. Hasen has written an extraordinary, thorough and fair examination of the impact of misinformation on democracy. He examines the costs and benefits of cheap speech and presents carefully crafted proposals that attempt to address the harms without straying from core First Amendment values or from falling into a moral panic about misinformation….

More important than Hasen’s evaluation of the problem is the second half of the book, in which Hasen considers potential solutions to mitigate some harms of cheap speech. Too often, discussions about misinformation end in solutions that casually dismiss First Amendment principles. Other times, they simply conclude with despair and do not even try to address the problems. Hasen—one of the nation’s most knowledgeable and respected election law scholars—could have gotten away with half-baked proposals to lop off large chunks of the First Amendment for the sake of saving democracy from cheap speech. …

But Hasen has not joined the calls for substantial abrogations to free speech. As Hasen recognizes, solving the problems created by cheap speech with sweeping new laws that limit speech “would undermine some fundamental American values and a key part of our democracy: the benefits of robust and uninhibited political debate.” Hasen also properly questions “who, in a society animated by distrust, would do the regulating and how they would do it.”

Rather than traveling down the censorial road that many others have traveled, Hasen relies on his deep knowledge of election and campaign finance law to suggest ways to mitigate some of the worst political misinformation harms.

Some of Hasen’s suggestions—such as ensuring that state and local governments competently administer elections—do not raise First Amendment problems. The proposals that do implicate potential free speech concerns valiantly attempt to stay within the strictures of the First Amendment. For instance, when Hasen suggests that Congress amend campaign finance disclosure laws to address online advertisements, he attempts to adhere to the Supreme Court precedent that has approved of some campaign finance disclosure requirements. Yet Hasen also recognizes that some justices who supported campaign finance disclosure laws no longer sit on the court, so how the current court would react to new requirements is uncertain.

Hasen also recognizes that it is hard to predict whether the Supreme Court would approve his proposal to require large online platforms to place labels on synthetically altered videos and images of politicians, addressing the concerns about deep fakes. Yet he presents a reasonable argument for such a proposal to survive even the most rigorous constitutional scrutiny and contrasts it with more constitutionally problematic bans on deep fakes.

Hasen argues that the government should have the power to ban “false speech about the mechanics of voting,” such as lying about when an election will occur or how people can vote. The Supreme Court has suggested that a state’s ban on speech that is “intended to mislead voters about voting requirements and procedures” would survive a First Amendment challenge. Hasen is appropriately careful to exclude from his proposed ban generalized claims that an election will be “rigged” or “stolen,” as well as postelection claims about stolen or rigged elections. The narrowness of this proposal means that it would not address much of the “big lie” that fueled the Jan. 6 storming of the Capitol, but it is far more likely to survive a First Amendment challenge than a more sweeping election misinformation proposal. 

Hasen rightly resists the temptation to attempt to address misinformation through amendments to Section 230, the 1996 law that shields online platforms from many claims arising from third-party content. A wide swath of misinformation is constitutionally protected, and amending Section 230 could not eliminate that protection. He also correctly recognizes that repealing Section 230 would not address the claims that platforms are biased against conservatives, as the increased legal risk likely would cause platforms to take down more content. That is not to say that Hasen dismisses concerns about platform power; rather, he suggests addressing them via required disclosures about algorithmic tweaking of content, antitrust law and privacy laws.