The rise in disinformation aided by automatic bots, false personas and troll farms is leading some thinkers to conclude that the marketplace of ideas — the foundation of modern First Amendment law — is experiencing a market failure. In the traditional marketplace model, the assumption is that truth ultimately drives out falsehood. That, suggests Hasen in “Cheap Speech,” is hopelessly naïve. Hasen, a law professor at University of California, Irvine, posits that the increase in dis- and misinformation is a result of what he calls “cheap speech,” a term coined by Eugene Volokh, a law professor at U.C.L.A. The idea is that social media has created a class of speech that is sensational and inexpensive to produce, with little or no social value.
In the pre-internet era, disinformation was as difficult and expensive to produce as truthful information. You still had to pay someone to do it — you still had to buy ink and paper and distribute it. Now, the distribution cost of bad information is essentially free, with none of the liability of traditional media. In the age of cheap speech, the classic libertarian line that the cure for bad speech is more speech seems dangerously outdated.
Hasen puts forth a number of solid recommendations on how to combat disinformation — more content moderation, more liability for the platforms, more transparency of algorithms — but adds a very specific one: a narrow ban on verifiably false election speech. The idea is that elections are so vital to democracy that even though political speech has a higher standard of First Amendment protection, false information about voting should be removed from the big platforms.