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Op-Ed

Speech in America is fast, cheap and out of control

The Internet and social media did not create white supremacist movements in the United States, such as the hate groups that rallied in Charlottesville, Va., last weekend to deadly results. Nor did the Internet create Donald Trump, who defended the Nazi protesters as “very fine people.” Trump was a demagogue long before he became @realDonaldTrump on Twitter. And there was plenty of “fake news” before there was Facebook.

The rise of what we might call “cheap speech” has, however, fundamentally altered both how we communicate and the nature of our politics, endangering the health of our democracy. The path back to a more normal political scene will not be easy.

In the old days, just a handful of TV networks controlled the airwaves, and newspapers served as gatekeepers for news and opinion content. A big debate back in the 1980s and earlier was how to enable free expression for those who did not own or work for a media company and wanted to get a message out.

In 1995, UCLA law professor Eugene Volokh wrote a remarkably prescient Yale Law Journal article looking ahead to the coming Internet era. In “Cheap Speech and What It Will Do,” Volokh foresaw 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 technology would usher in radical new opportunities for readers, viewers and listeners to custom design what they read, saw and heard, while at the same time undermining the power of intermediaries including publishers and bookstore owners.

To Volokh, these changes were exciting and democratizing. But 22 years later, the picture of what the cheap-speech boom has wrought seems considerably darker. No doubt the Internet has dramatically lowered the costs of obtaining information and spurred the creation and consumption of content from radically diverse sources. Anyone with an idea can now get it out on Facebook, Twitter or any number of other sites accessible to anyone in the world with an Internet connection. And cheap speech has been a boon to those fighting oppressive regimes around the world, as truthful messages and relevant information can spread despite government censorship efforts.

Less positively, cheap speech has undermined mediating and stabilizing institutions of American democracy, including newspapers and political parties, with negative social and political consequences.

The newspaper business has been decimated. In 2001, approximately 411,800 people were employed in the journalism industry. By 2016, that number had fallen below 174,000. Between 2000 and 2015, newspaper print advertising revenue declined from $60 billion to $20 billion a year. As a 2009 Columbia Journalism Review report concluded, “What is under threat is independent reporting that provides information, investigation, analysis, and community knowledge, particularly in the coverage of local affairs.”

In place of media scarcity, we now have a media fire hose. Because the barrier to entry is so low — virtually nonexistent — it’s easy for both domestic and foreign sources to spread falsehoods and propaganda for political or pecuniary purposes. People no longer rely on Walter Cronkite to tell them “the way it is” or for the Los Angeles Times to screen out the kooks. Instead, Macedonian kids make money and the Russian government makes trouble inventing “news” stories — like Hillary Clinton is a murderer, or Trump was endorsed by the Pope.

Since fake news websites look just like legitimate sites when links are shared on Facebook, email or otherwise, even readers who want to distinguish truth from fiction may have a hard time. The problem is compounded by polarization: People share stories that reinforce what they are already inclined to believe. The echo chamber may make us less tolerant and less able to recognize falsehoods.

Fake news is far from the only problem associated with cheap speech. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Without newspapers watching, as the Los Angeles Times did in its Pulitzer Prize-winning coverage of corruption in Bell, chicanery can flourish.

Cheap speech is also hastening the irrelevancy of political parties by facilitating direct communication between politicians and voters. Social media, for instance, provided Trump a vehicle to get around the GOP in launching his unorthodox campaign. Now that he’s president, social media allows him to circumvent not only the media but also his staff as he lies to the public.

Social media can help activists overcome collective action problems — to identify fellow travelers and stage peaceful protests, or violent and hateful ones. It should have come as no surprise that the organizers of the Charlottesville rally promoted it heavily on social media and then used the fallout to look for more recruits.

What can be done?

As Trump’s presidency should make obvious, we do not want the government to have the power to ban speech it dislikes — what the White House considers “fake news.” 1st Amendment protections rightfully would prevent such legislation, anyway.

Still, in the era of cheap speech, some shifts in 1st Amendment doctrine seem desirable to assist citizens in ascertaining the truth. The courts should not stand in the way of possible future laws aimed at requiring social media sites to identify and police false political advertising, for instance.

Of course a new conservative Supreme Court is more likely to make things worse than better. It might hold, for example, that it violates the 1st Amendment to bar fake campaign news distributed over social media by foreign governments. Or it might strike down laws that help voters figure out who is paying for political activity (under the dubious argument that transparency measures violate a right to anonymity).

Ultimately, nongovernmental actors may be best suited to counter the problems created by cheap speech. Tech companies such as Facebook, Google and Twitter can assist audiences in ferreting out the truth. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved.

Subsidies for (especially local) investigative reporting can also help the problems of corruption and boost the credibility of newspapers as well as other supports for civil society. But nothing is certain to work in these precarious times.

It seems cheap speech, despite its undeniable benefits, has come with a steep price for our democracy.

Richard L. Hasen is the Chancellor’s Professor of Law and Political Science at UC Irvine. This is adapted from a forthcoming law review article, “Cheap Speech and What It Has Done (to American Democracy).”

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