Richard L. Hasen—
In a remarkably prescient article in a 1995 Yale Law Journal symposium titled “Emerging Media Technology and the First Amendment,” a UCLA law professor, Eugene Volokh, looked ahead to the coming Internet era. The article, “Cheap Speech and What It Will Do,” predicted the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how the dramatically decreased costs of disseminating written, audio, and visual content, which Volokh termed “cheap speech,” would create radical new opportunities for readers, viewers, and listeners to custom-design what they read, see, and hear, while undermining the power of intermediaries, including publishers and bookstore owners.31
Volokh found these changes exciting and democratizing. Understandably, his predictions were not perfect—for example, he thought we would be using high-speed printers to print out columns from our favorite newspaper columnists, and he grossly underestimated how cheap speech would wreck the newspaper business. And despite his optimism, he also saw some dark sides, such as the lowering of costs for hate groups like the Ku Klux Klan to organize and share ideas. But his overall picture of the coming cheap speech era was positive. Volokh asked: “Will listeners do a better job of informing themselves than the intermediaries have been doing? When the media aren’t there to help set a national agenda, or to give people a common base of information to argue from, will people be able to deliberate together? I think the answer to both questions is yes, but others . . . disagree.”32
Two and a half decades later, the picture of what cheap speech has done and is likely to do—in particular to American democracy— is considerably darker. No doubt cheap speech has increased convenience, dramatically lowered the cost of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech have undermined the mediating and stabilizing institutions of American democracy, including newspapers and political parties, a situation that has had severe social and political consequences for American elections. In place of media scarcity we now have a media firehose that has diluted trusted sources of information and led to the rise of “fake news”— falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for increased corruption among state and local officials.33
Rather than improving our politics, cheap speech makes political parties increasingly irrelevant by allowing demagogues to appeal directly and repeatedly at virtually no cost to voters for financial and electoral support, with incendiary appeals and often with lies. Social media can both increase intolerance and overcome collective action obstacles, allowing for peaceful protest but also supercharging polarization and raising the danger of violence, as we saw with the January 6, 2021, insurrection.34
The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. Political campaigns go forward under conditions of voter mistrust and groupthink, increasing the potential for foreign interference and domestic political manipulation through ever more sophisticated technological tools. These dramatic changes raise important questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.
Cheap speech—speech that is both inexpensive to produce and often of markedly low social value—raises deep concerns whether disseminated on social media, search engines, news cable channels, or otherwise. Platform technology allows politically and morally objectionable manipulation of the information used for voter choice. Viral anonymous speech, spread partly through “bots”—automated programs that communicate directly with users—lowers the accountability costs for sharing false information and manipulated content. It deprives voters of valuable information to judge the credibility of the messages directed at them. Platforms gather an unprecedented amount of intrusive data on people’s backgrounds, interests, and choices, which allows campaigns to “microtarget” advertising, such as by sending one set of messages to older white male voters and another to young African American women. The practice drives profits for the platforms, but it can also fuel polarization and political manipulation. Political operatives may deploy microtargeting for negative messaging intended to depress voter turnout. The platforms’ design may encourage extremism through the algorithms used to offer voters additional, more worrisome content similar to what they or their social media friends and contacts have chosen. Those who can control platform content may help one candidate and hurt another. Platforms influence elections when they make choices about whether to promote or remove content, including false content.
From Cheap Speech by Richard L. Hasen. Published by Yale University Press in 2022. Reproduced with permission.
Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. His previous books include The Voting Wars, Plutocrats United, The Justice of Contradictions, and Election Meltdown. He lives in Studio City, CA.
31. Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805, 1808– 18, 1831 (1995).
32. Id., at 1823, 1841–42, 1848–49. Volokh recently wrote a retrospective on his essay in a U.C. Davis symposium on it. The retrospective does not consider the democracy and election issues discussed in this book. Eugene Volokh, What Cheap Speech Has Done: (Greater) Equality and Its Discontents, 54 U.C. Davis L. Rev. 2303 (2021).
33. Further, as Anupam Chander argues: “For groups marginalized by mainstream society, the Internet offers a way to find community. American indigenous peoples can discuss issues of interest to many tribes at NativeWeb.org. A gay youth growing up in a small town can find support through the Internet, despite a hostile local setting. Sikh Americans might find community in cyberspace. Cyberspace offers a respite from the median consumer perspective of mainstream media. Here is the world’s diversity, in its full glory (and, at times, disgrace).” Anupam Chander, Whose Republic?, 69 U. Chi. L. Rev. 1479, 1488–89 (2002). Any suggestions for reforming social media practices must consider how reform could burden these multicultural benefits.
34. W. Lance Bennett & Steven Livingston, A Brief History of the Disinformation Age, in The Disinformation Age: Politics, Technology, and Disruptive Communication in the United States 3, 5 (W. Lance Bennett & Steven Livingston eds., 2020), https:// www.cambridge.org/core/books/disinformation-age/1F4751119C7C4693E514 C249E0F0F997 [https://perma.cc/F63Z-5GPB] (“putting the spotlight on social media alone, misses deeper erosions of institutional authority which involve elected officials—traditionally among the most prominent sources of authoritative information—themselves becoming increasingly involved in the spread of disruptive communication”).
Between Memory and History