The “Cheap Speech” Police

Remember when the only source of political speech and information were major media conglomerates with tons of important journalists who received prestigious prizes? Speech was serious, as they wore serious faces as they told it to us. Speech was moderated, as there was no one on air to call bullshit, or would dare use such a vulgar word in such a refined world. And speech was credible, because we were told to believe these people. After all, if they weren’t credible, they wouldn’t be given major media soapboxes to inform us of reality.

UC/Irvine lawprof Rick Hasen yearns for those days.

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.

He contrasts an old law journal article by none other than Eugene Volokh, predicting the democratization of speech.

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.

Too bad, Hasen concludes, that the one thing that didn’t work out was “cheap speech.”

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

Some people adore freedom, with all its ugliness and nastiness. Some adore order, with its “mediating and stabilizing” effect on the awfulness of the groundlings, left to their own devices. Sure, you can call it authoritarian, but the trains ran on time.

Hasen rejects the obvious solution of giving government the power to regulate free speech, but only because the current regime would obviously abuse it. That’s not to say he wouldn’t appreciate a bit more regulation of the First Amendment to rid public discourse of immoderate speech, the sort of tonal meanness that academics so deeply despise, as it scares the effete and elite when they aren’t at the top of the serious speech food chain.

Cheap speech allows people to circumvent the institutions that enforce order on political thought.

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.

There was a time when the president was right up there with the serious speech that dead-tree newspapers repeated on the front page, but that was before the new guy who lies to the public. So instead of political parties telling voters what they should care about, voters can decide for themselves. Of course, without the party bosses to inform them, they get it all wrong.

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.

The violent and hateful Naxos took advantage of the cheap cesspool of social media. The peaceful fellow-travelers flew in organically on gossamer wings, weighed down only by their urine bottles.

What can be done?

Having concluded that the ignorant masses can’t be left to their own devices without the truth-mediating influences of trusted sources, Hasen contends it’s time for a change.

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.

The days of getting one’s news from the New York Times and Walter Cronkite are over. We find out what happened, and what we think about it, from our dear friends on the Facebook or the Twitters, maybe a Snapchat or two. To the extent we look to others to explain the nuggets they deem us worthy of learning, new-media sources like Axios reduce it to a paragraph of “story” and a paragraph of “splainer” so we never have to think too hard and can move on promptly, knowing whom to love and hate.

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.

We can surely trust “nongovernmental actors,” whom some might call CEOs of for-profit business that trade off our personal information gleaned from our internet habits to sell us trinkets, to decide what speech is worthy and what is too cheap. After all, if Zuck says a story is real, who are we to doubt it? In practice, of course, it will be managed by algorithms which are never wrong, or youthful and enthusiastic watchers who have refined their sensibilities in the nation’s finest institutions of higher education.

And order will return so academics can sleep well knowing that the elites are back in charge and will protect us from the horrors of cheap speech.

21 thoughts on “The “Cheap Speech” Police

  1. Edward

    Rick Hasen’s nostalgia for the days when the networks were the gatekeepers of knowledge, assumes it was a good thing. To claim the evolving information age is a threat to democracy is questionable. Like anything, change comes with new advantages as well as limitations.

    Granted, far too many self-declared experts floating around these days. Name a topic and you can find thousands. But I doubt that is any worse than the questionable experts the networks have always dragged out to explain things.

    1. SHG Post author

      There are a number of concerns wrapped up in Hasen’s “cheap speech,” not the least of which is that gatekeepers keep the information and scope of dialogue within the bounds that “knowledgeable” people, like Hasen, believe appropriate. Argue all you want within the bounds of propriety, but never go outside the lines.

  2. ETB

    Mark Zuckerberg on Facebook’s efforts to “counter the problems” of so-called cheap speech: “I am definitely involved when it comes to setting the overall policy direction for where the balance is between free speech and hate [or “cheap”] speech.” (Wired Magazine Issue 24.12, December 2016).

    No thank you, Mr. Hasen.

  3. PDB

    “as it scares the effete and elite when they aren’t at the top of the serious speech food chain”

    Well said! I will have to use that in the future (with attribution, of course).

    “to assist citizens in ascertaining the truth”

    That’s a very scary line. I can’t believe he wrote that. Wait, he’s a liberal law school professor? Then I guess I can believe it.

    1. SHG Post author

      He is not liberal.
      He is not liberal.
      He is not liberal.
      He is not liberal.
      He is not liberal.
      No, he is not liberal at all.

      1. the other rob

        I think that the battle for holding to the original meaning of the word “liberal” may have been lost. At least, over here – there may still be hope in Europe.

  4. B. McLeod

    Well, the “mediating and stabilizing institutions” of newspapers and political parties were not without their own agendas and biases, which sometimes caused them to filter speech based on considerations quite apart from its accuracy and informational value. That also continues to occur with the “cheap speech” of today, as the sponsors of various websites and platforms remove or block content based on whatever their rules or filtering practices are. I don’t see that it is fundamentally different, there are just more people participating more easily.

  5. anonymous coward

    It sounds like Rick Hasen wants to establish a ministry of truth, with himself and his clique in the executive suite. I also work in IT so I know Google, Facebook et al can’t be trusted to do anything except serve up advertising.

    1. SHG Post author

      As long as they stay on the right side of the spectrum, Minister Hasen will approve. Then again, they still can’t get big data advertising right (I just bought that on Amazon, you morons).

  6. Jim Tyre

    The days of getting one’s news from the New York Times and Walter Cronkite are over.

    So no more SHG rants about NYT? Say it ain’t so!

  7. MonitorsMost

    I have come on the most urgent of business, it is said that the people are revolting.

    You said it, they stink on ice!

    (Thank you for posting on this, that op-ed made my blood boil yesterday).

  8. DaveL

    It’s almost as if Rick Hasen finally got around to reading Noam Chomsky’s Manufacturing Consent, and it gave him an attack of nostalgia.

  9. Fubar

    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.

    Regulated free speech — oxymoron!
    Which Hasen believes truth would soar on.
    What rough beast¹ from the past²,
    Its hour come at last,
    Slouches toward that regime for denouement?

    FN 1: Yabbut I stole it fair and square.

    FN 2: 1798 or more recently 1918.³

    FN 3: Whoever really needs these footnotes is too woke to joke.

  10. Iris Wong

    “What can be done?”

    Nothing.

    “Still, in the era of cheap speech, some shifts in 1st Amendment doctrine seem desirable to assist citizens in ascertaining the truth.”

    It seems that way to some. Apparently.

    “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.”

    Oh. Well, they will. There’s piles of recent, directly on-point precedent, I’m afraid. No, we don’t validate parking. The lobby’s closed; you’ll have to take the freight elevator and exit through the loading dock into the alley…

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