Richard L. Hasen: How to Keep the Rising Tide of Fake News From Drowning Our Democracy

From a New York Times guest essay by Richard L. Hasen headlined “How to Keep the Rising Tide of Fake News From Drowning Our Democracy”:

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.

It is expensive to produce quality journalism but cheap to produce polarizing political “takes” and easily shareable disinformation. The economic model for local newspapers and news gathering has collapsed over the past two decades; from 2000 to 2018, journalists lost jobs faster than coal miners.

While some false claims spread inadvertently, the greater problem is not this misinformation but deliberately spread disinformation, which can be both politically and financially profitable. Feeding people reassuring lies on social media or cable television that provide simple answers to complex social and economic problems increases demand for more soothing falsities, creating a vicious cycle. False information about Covid-19 vaccines meant to undermine confidence in government or the Biden presidency has had deadly consequences.

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.

A democracy cannot function without “losers’ consent,” the idea that those on the wrong side of an election face disappointment but agree that there was a fair vote count. Those who believe the last election was stolen will have fewer compunctions about attempting to steal the next one. They are more likely to threaten election officials, triggering an exodus of competent election officials. They are more likely to see the current government as illegitimate and to refuse to follow government guidance on public health, the environment and other issues crucial to health and safety. They are comparatively likely to see violence as a means of resolving political grievances.

But cheap speech has already done damage to our democracy and has the potential to do even more. The demise of local newspapers — and their replacement in some cases with partisan or even foreign sources of information masquerading as legitimate journalism — fosters a loss of voter competence, as voters have a harder time getting objective information about candidates’ records and positions. Cheap speech also decreases officeholder accountability; studies show that corruption rises when journalists are not there to hold politicians accountable. And as technology makes it easier to spread “deep fakes” — false video or audio clips showing politicians or others saying or doing things they did not in fact say or do — voters will increasingly come to mistrusteverything they see and hear, even when it is true.

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.

Even if Congress adopted all the changes I have proposed and the Supreme Court upheld them — two quite unlikely propositions — it would hardly be enough to sustain American democracy in the cheap speech era. For example, the First Amendment would surely bar a law that would require social media companies to remove demagogic candidates who undermine election integrity from social media platforms; we would not want a government bureaucrat (under the control of a partisan president) to make such a call. But such speech is among the greatest dangers we face today.

That’s why efforts to deal with the costs of cheap speech require political action as well. As consumers and voters, we need to pressure social media companies and other platforms to protect our democracy by taking strong steps, including deplatforming political figures in extreme circumstances, when they consistently undermine election integrity and foment or threaten violence. Twitter’s recent decision to no longer remove false speech about the integrity of the 2020 election is a step in the wrong direction. And if the social media companies are unresponsive to consumer pressure or become too powerful in controlling the political speech environment, the solution is to use antitrust laws to create more competition.

Society needs to figure out ways to subsidize real investigative journalism efforts, especially locally, like the excellent journalism of The Texas Tribune and The Nevada Independent, two relatively new news-gathering organizations that depend on donors and a nonprofit model.

Journalistic bodies should use accreditation methods to send signals to voters and social media companies about which content is reliable and which is counterfeit. Over time and with a lot of effort, we can reestablish greater faith in real journalism, at least for a significant part of the population.

The most important steps to counter cheap speech are the hardest to take. We need to rebuild civil society to strengthen reliable intermediaries and institutions that engage in truth telling. As a starting point, think of all the institutions Mr. Trump tried to undermine: the free press, the opposition party, his own party, the judiciary and the F.B.I., to name just a few. And we need an educational effort — including among older Americans, who are actually the most likely to spread political misinformation — to inculcate the values of truth, respect for science and the rule of law.

This is easier said than done. It will require an all-hands-on-deck mobilization and not just the government: civics groups, bar and professional associations, religious institutions, labor unions and businesses all have a role to play.

The future of American democracy in the cheap speech era is hardly ensured. We don’t have all the solutions and can’t even foresee political problems that will come with the next technological shift. But legal and political action taken now has the best chance of giving voters the tools to make competent decisions and reject election lies that will continue to spew forth on every platform that can be built to threaten the foundation of our democracy.

Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Irvine, and the author of “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.” In 2020, he proposed a 28th Amendment to the Constitution to defend and expand voting rights.

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