tv Richard Hasen Cheap Speech - How Disinformation Poisons Our Politics CSPAN May 29, 2022 6:25pm-7:31pm EDT
my name is erwin shimmerinsky. i'm the dean of the law school the university of california berkeley school of law as my great pleasure to be here today with russia rick kasson. who's the chancellor's first of law and political science the university of california irvine school of law. we're here because rick is written a terrific new book cheap speech how disinformation poisons are politics and how to cure it. you want to ask rick number of questions about the book and talk with them about it. and then what very much to get your questions, so please be sure to send them in to the youtube chat. rick i find the title of the book quite provocative when you call it cheap speech.
what do you mean by cheap? speech? well first let me thank the commonwealth club for putting this form together. i would have hope we could by this time be doing it in person, but hopefully next time that we're together having conversation. we'll be able to do it face to face and thank you erwin as always for agreeing to be the interlocutor here. so the term cheap speech is not mine. it's a term that originates with a professor at ucla law school in eugene. volik. he wrote an article in the yale law journal back in 1995 where he was talking about the coming information revolution as in many ways quite a prescient. uh conversation a discussion in that piece. he talked about things like what we would now see as the rise of netflix and spotify. he knew that what was going to happen is we were going to move from a trickle of speech something like you know your few local tv and radio stations and your local newspaper and a few national newspapers to a flood
of information and he knew that this was going to make intermediaries like newspapers less important. he was very optimistic about it. so what he meant by cheap speech was cheap that is inexpensive to produce in disseminate. we certainly have that world and there's certainly a lot of benefits that world. you literally can get the knowledge in the palm of your hands with your smartphone. but i mean cheap speech in a second less positive way as well. i mean that we have as we've eliminated intermediaries and made speech move more easily move to world war valued speech. that's the other shaped speech has an advantage over. higher valued speech so what i mean by that is if you're a local newspaper today, and you want to investigate what's happening in city hall or what's happening county government or state government? it's very expensive to do that work. you have to pay a lot of people it takes a lot of time and effort and you have to sell newspapers to get that out there and because of the changing
economics of the whole situation local newspapers have been decimated. they don't carry classified advertising or advertising like they used to before so it's really hard to get good information out there because people are not supporting these local newspapers and what's happening instead is that it's very easy to spread misinformation disinformation opinions not backed by any facts. this is this lower value of speech which has an advantage in the market and voters who are trying to and the focus of my book is on voters and elections voters who are trying to get reliable. mission about what's going on with our elections or our politics are having a harder time because they don't know if what they're seeing is true or false. i mean just this week we saw stories about how there are these false new sites that really propaganda outfits set up by the democratic party the republican party or their allies someone even set up by the government of russia to look like local news but to give
people propaganda and sometimes misinformation and so we're in a world where the speeches cheap it flows easily, but it's not necessarily what voters really would value from being able to have easy access to significant part of the book is detailing what you see as the problems with regarded chief speech. you just alluded to some of them, but could you elaborate more on what you see as the harms from what you call cheap speech so the book i should say. i'd written a full draft of the book and i think you had given mements on that. and this was well over a year ago. and then after i had a first draft in which i warned of the dangers of disinformation about elections in particular and how it could lead to violence we had the events of january 6 2021 where the president of the united states aged people on to come to washington dc after
perpetuating a kind of incessant lie about the election being stolen and this led to the insurrection of the capital as we all know led to the deaths of some people 140 police officers injured and i think as the news comes out. we know we came much closer to the loss of the peaceful transition of power in this country. then people recognized one of the claims i make in sheep speech is that if we had the same polarized politics of today, but the technology of the 1950s that kind of situation where our democracy came perilously close to ending would have been much harder to achieve donald trump was able to go to twitter over 400 times between november 3rd on election day in november 19 less than three weeks later to directly speak to the american people on the world making his false claims about the election being stolen that those claims were not filtered if he would have done that in
the 1950s. he wouldn't have been put on tv 400 times. his claims would have been put in context. he wouldn't have just had an open mic and now we have the open mic and not only that the internet allowed for people and we know this from some documents that were released in connection. criminal investigations. that's january 6 that people saw the be wild message come to dc and they used facebook groups to find each other and to organize for violent political action. and so one of the main problems is that that i detail in sheep speech is that this atmosphere could create disinformation about elections which undermines people's confidence in elections makes it more likelhat they're not going to accept the lecture results legitimate. they might be willing to bend the rules next time to try to even the score they might be more willing to accept violence. and so those are you know, some of the very urgent kinds of of problems that arose the book talks about other ones as well such as the fact that if you are
a margery taylor green, you're going to have a much easier time raising money than if you're a moderate political candidate you can go directly to vote if you don't have to rely on your political party anymore, so it's not just newspapers that have been undermined. it's political. so we're in a situation of high partisanship but weak political parties, which makes room for demagogues. so these are some of the concerns that i address at the beginning of the book. let me play devil's advocate for a moment. i wonder with regard to january 6th, if you're not blaming the messenger whether the medium is really responsible. i mean donald trump was going to claim that he properly won the election even if there wasn't the internet and social media, he was gonna file all of his lawsuits and even the mainstream media was going to pick up that and conservative media conservative talk radio was certainly going to get the message for him. i wonder if you can blame the
medium for donald trump for those who wanted to follow him. well, so the first thing i'd say is that my claim is not just about social media itself cable news plays a major role here, but cable news is part of the problem. that is we don't have a walter cronkite anymore who can tell us what the truth is and we can believe them because he's abiding by journalistic ethics. so it's not just that their social media. it's that we have partisan political media that i think is in a kind of feedback loop with social media amplifying the false claims and i think it would have been much harder for donald trump to have organized people and for those people to have found each other and so right now today, there are millions of people in the united states who believe that the 2020 election was stolen. i've been studying elections for more than two decades. i looked very closely at the
2020 election. there's no reason to believe there's any credible evidence that the results of the presidential election were different than those that were reported anywhere else and yet not only do vast majorities of republicans believe the election was stolen in part because trump was able to to you know, repeatedly spread these messages, but also cnn poland september found that 59% of republican voters say that believing the false claim that the 2020 election stolen is an important part of what it means to be a republican. i don't think that those kinds of messages were what have been as likely to resonate without the ability to spread these kinds of lies unchecked and unfiltered. let me play devil's advocate in another way as well your book very much focuses on the harms of chief's speech. these are things you were just talking about. but what about all the benefits of cheap speech in some ways? we're in the golden age of
freedom of speech that it used to be in order to reach a mass audience to be rich enough to own a newspaper get a broadcast license. now we've really democratized the ability to reach a man's audience anyone with a smartphone or access to a modem can do so is you alluded to earlier there's the ability to access unlimited information just from our phones. why i believe that the harms of chief's speech outweigh these benefits. so i don't think you need to claim that the harms outweigh the benefits. i think you just need to recognize that there are significant harms and i do recognize that there are great benefits if you think about george floyd and the racial justice movement the ability to post videos of police acting in ways that are illegal and immoral that helps to galvanize a movement too that help people to organize and i'm not saying the bad outweighs the good overall what i'm saying? is that that what's happened has created a challenge to our elections.
and so i know we're gonna turn to solutions later, but i think it's important to point out now because the day after my book came out there were headlines at both fox news and the daily mail saying professor calls for censorship and they obviously not read my book because the only speech that i argue in the book, that should be limited our lies about when we're and how people vote which the supreme court a 2018 case that is perfectly acceptable to limit and we can talk about that. and foreign spending which the supreme court has on elections, which the supreme court is that is perfectly well implement. what i want to do is give voters tools to be able to get access to more valuable information so we don't have to to accept that the that there are many problems with how voters get information. they we don't have to agree that the bad outweighs the good we just have to see that there are significant negative outcomes as i say in the book. i don't think any of us would want to go back to a time where if you don't like what the new york times prince you're only
option really to get the word out is to send a letter to new york times and just hope that it among hundreds of others would be printed. it's great that we can get additional conversations going but it's a double-edged sword because it also invites the kind of dangers that we've been talking about. i think would be good to transition to talking about your solutions and as we look at them think about are you right? will they make the situation better or might it make it worse just for those who are watching. i'm ruinter morinsky from berkeley law and the great pleasure of talking to rick hassan the chancellor's professor of launch local science a university of california irvine and foremost expert on election law in the united states. what i specially liked about the book rick is how detailed you are with regard to the potential solutions. let me some of them you see change election administration. it's the first one that you talk about in the book. what do you mean? well, so the first thing i should say just to frame it is that i believe that there are
changes in the law that would make things better. but that changes in the law are not enough even if we get everything enacted that i propose which is you know, a long shot and even if the supreme court accepted everything i said, which is i think doubtful given the current supreme. or it still wouldn't be enough. so when i talk about solutions, yeah to recognize that. this is a multifaceted problem. it requires multifaceted solutions. no one there's no one magic bullet to deal with these kinds of problems and i do recognize that it's kind of odd in a book that's focused on speech to talk about how elections are run. and what i mean there is that one way to take the fuel out of the the fire is to run elections in a fair way. and so there are some people are going to be convinced and want to be convinced that the 2020 election was stolen, but there are a larger number of people in the middle who say okay if that's your claim as as the courts did show me your evidence. and so if you run a sloppy
election, and i've written two earlier books one called election meltdown. i'll call the voting wars where i point out that when you have slack in election administration when elections are administered poorly. of then there's room to claim fraud and it becomes more plausible when you hear about people forgetting to count ballots or you know, people not sent ballots those kinds of things. so i do think fair election administration is a really important first step to at least help those in the middle who want to look at the election and figure out, you know, was it run in a fair way or not and let me give one very specific example here to make this concrete. you may remember that one of donald trump's claims was that the election was stolen from him in georgia and he made a call to the secretary of state of georgia brad. raffensburger republican a call that bradfordsburger recorded in later released in which trump asked for reference broker to quote find 11,780 votes and refuses. there's no way i'm gonna do that and that was the end of the
conversation but they did a full hand recount of every ballot in the state. and they were able to say that within a few hundred votes because there's always some slack the results that were announced was were correct that biden had won the state. imagine if georgia was still using voting machines that were wholly electronic that didn't produce a piece of paper. and so all you had was software you push a button and it says this is the vote total. just imagine the kinds of conspiracy theories about elections being hacked that would have flown. so one way to deal with election disinformation is you sound principles of election administration like always have a piece of paper that a court or another body could count to tell us what the truth is having a physical tangible piece of paper. that's what we need for our elections because of the lack of trust even if those electronic voting machines work. well the great point i just want to focus on election registration for a moment. there's been a lot of changes
since november 2020 with regard to election and administration. do you want to speak about those and whether they're going in the right or wrong direction? well, so one concern that i bracket in the book is concerns about voter suppression laws that make it harder for people to register or vote those earlier books that i mentioned talk about those issues. i'm very concerned about them today though. i haven't even greater concern about elections subversion, which is the risk that the winner of the election won't be declared the winner and have a peace coming out that will post next week at the harvard law review website talking about how to minimize the risk to that's that's kind of tangential to my project in shape speech, but i am very concerned not only about laws that make it harder for people to register and vote for no good reason, but also laws that potentially make it easier to manipulate election results. and so one of the things that i'm worried about is reference burger or just mentioned he's a primary election facing a member of congress named jody high school's a republican
congressman who has embraced the the lie that the 2020 election was stone. he may be one running elections in in 2024, if it's biden versus trump two and let's say that heist runs a completely fair election and announces the trump has won are people on the left actually going to believe him. i think the kind of doubts about election integrity that we see on the right that we're fermented by trump are going to boomerang and we're actually going to have people on the left start having the same kind of doubt. so really having fair rules having transparency having good election administration makes it harder for elections to be stolen, but also harder to lie about elections being stolen. i want to go through several of your other proposals, but i do want to pause and remind everyone please put your questions in the youtube that chat and we'll get to the questions pretty soon really. look forward to getting your questions rick another proposal you have is for greater disclosure.
is you know better than anyone efforts to impose greater disclosure with regard to campaign finance reform have been unsuccessful since citizens united versus stephanie c in 2010. the disclose act never made it through congress. why believe that disclosure laws here are any more likely to be adapted? well first, let me talk about why i think disclosure is a good solution. so our election laws are outdated as you mentioned. so today if an ad says joe biden is a true leader, and it's run close to the election and you see that at on tv and you see that ad come through either your cable box or a satellite like directv that ad is subject to certain disclosure rules under a law that passed 20 years ago this week called the mccain fungal. on the other hand if you're watching that same tv ad and it comes to you through hulu or youtube tv, which are not cable or satellite that ed is not
subject to disclosure. similarly if the ad appears on facebook. that is not subject to disclosure unless it expressly calls for the election or defeat of a candidate. that's a nonsensical system as more and more of our speech gets to us through the internet. our campaign finance rules need to be updated. and this is what i mean, and i said, i'm not for censorship. what i'm for is calling for voters getting more information and so if voters know that you know that person on facebook who claims to be an african-american voter and is trying to convince me not to vote for hillary clinton because she hasn't done enough for the black community that turns out to be a russian government agent as we saw in 20 16 or to take a case on the other side of the political island 2017 supporters of doug jones who is running as the democratic candidate for senator in alabama not jones himself. he had nothing to do with this but supporters of his targeted ads at moderate republicans telling them that roy moore has
republican opponent that he might want to support banning of alcohol in the state. these are what people posing as baptist tea toddlers i think that both the african american voters in 2016 and the moderate republicans in 2017, both of whom were targeted to have their votes suppressed would have benefited from knowing who was actually speaking to them. so disclosures important not only because it can prevent corruption and help enforce other laws like foreign laws against foreign interference and elections. there are important because they provide valuable information to voters and until recently the supreme court has been very willing to uphold disclosure loss even the very conserved justice antonin. scalia was a big believer in disclosure laws and said that people should stand up for themselves. but now as you mentioned we have two problems number one, this has become yet another partisan issue and republicans no longer support campaign finance disclosure the way they used to at least the republicans in congress. and so it is doubtful that we're going to get an improved
disclosure law. this is something that the democrats have tried to include in some of their bills like the for the people act but because of the filibuster requirements and because senators like joe manchin a more conservative democrat are not willing to change the filibuster requirements. it's unlikely the laws will get through but even if miraculously they do get through. i'm concerned because the supreme court and the most recent disclosure case called americans for prosperity foundation versus banta back in july indicated that there is much more skepticism at the supreme court about disclosure because of you know, not just a danger of particular. people being chilled from speaking, which the supreme court is long recognized could provide a reason to give an exemption from disclosure, but that the concern about chilling could justify striking down disclosure laws as a whole and that's very concerning and indeed many disclosure laws, especially the campaign finance area that'll help previously are now being challenged in light of the americans for prosperity case.
yeah. i want to go through so many of your proposals. let me skip to one that may have led to this headlines. you describe you say it. i'm quoting this a label you want to narrow band on empirically verifiable fall selection. speech. what do you mean by that? yeah. so this takes a little explaining. so most speech in elections is not about how the election itself is run. so my my opponent has voted to raise taxes 10 times. that's a kind of i would call that campaign speech and i don't believe that the government has any business telling people that they can't say what they want to say. even if it's a lie about an opposing candidate if it becomes defamatory then maybe that can be dealt with by other candidate after the election, but i don't think the government can come in and say don't say that. but there's a very narrow class of cases where people lie about when where and how people vote you need id to vote in a state where you don't need id democrats vote on tuesday. republicans vote on wednesday.
these are empirically verifiably false statements. that is you can go to the website or the office of the local election administrator and find out what day is election day. it's tuesday, you know can people vote without an id yes or no, and so if people lie about this as the supreme court explained in a 2018 case called minnesota voter lines versus man ski, the government does have a compelling interest in limiting misinformation that interferes directly with the franchise and i'll give you one example of something that happened the 2016 election a guy targeted messages to african american voters telling them that they could vote by text or by social media hashtag. and they of course you cannot vote this way and we know about 5,000 people try to cast their balance in this way. now. he's being charged with a certain federal criminal prosecution. it's not clear to me the statute actually covers that but what i argue in the book, is that lies
like that should be subject to a federal law and that's such a federal law should be upheld this constitutional because it is it doesn't involve any government discretion. it's not like the government has to figure out how many times that the person try to at raise taxes or get into really, you know, esoteric discussions about what do you mean by raise taxes? that was a fee, you know, we know what day election day is so i think you can have this the good news is i think you can pass such a law and such a law would be constitutional the bad news is it wouldn't target most of the misinformation and disinformation we see online and so one of the hardest cases and i talk about in the book is what if you lie about the last election being stolen as donald trump has repeatedly done. i think it's very hard to make a claim that same interest in protecting voters' ability to vote right? he's not telling people, you know, go to the wrong polling place. and so you'd have to justify such a law by claiming that these statements undermine election integrity, but then if you have a law like that what if you have an election that actually is stolen or there is a
reasonable question about whether it's stolen. we don't want to stop people from being able to say that raise that issue and be able to make sure that we have a fair election. so these are really difficult questions. and so i do think that there is this very narrow place where we could help voters a little bit by keeping these lies off of media and off of social media. it's a very clear explanation. let me go to one of the other things you proposed and i think that this is one where i'm with skeptical of constitutionality you see you want to prohibit micro targeting of political ads. could you explain what microtargeting is and how you can prohibit ads that are directed people? so this also just requires a little bit of a technical explanation so we know what we're talking about. so micro targeting targeting ads that particular populations is nothing new so, you know, but when i was a new voter, you know, remember i became a voter the first thing i noticed was i got a lot of mail. it was a lot of a lot of you know less of that today, but you
know more ads through the internet but you get a lot of mail and so they might use your surname or they might use your zip code. they're not going to write to everyone, you know, if you're running for governor, you might not target the whole state you might target people who you think you're most likely to get. i don't think that you can have a law against any of that. what i'm talking about is something different which is today if your campaign, let's say you're right you're running for senator in california and you have a list of people you want to target people maybe. have donated your campaign before or who called in to have this list and you can give that list to facebook and facebook will take it and they will run something called their look-alike feature and they will use the vast data that's collected about each of us when we use social media, right? so, it's not just when you're on facebook. there's a little you know tracker that's tracking you. okay you shop at this store you belong to this church, right? there's a lot, you know, there's
a lot can be learned about you. they will use information that they've collected about you that you've signed into their terms of service and they will find people who look like the those who the campaign wants to target and we know that these messages are sometimes targeted and vulnerable people and sometimes contain at least our googly misinformation or disinformation and i believe that you could have a law a privacy law that says that while campaigns can target whoever they want social media companies cannot use the data that they have collected from you in order to find other people right and target those people who have not requested or not interacted with the campaigns with their ads the issue turns on i think the question of whether this data collection is a kind of first amendment protected activity, and i know that first amendment scholars are very divided on this question and one of the
problems with what i'm proposing it gets a little bit into the weeds is that i'm proposing a law that bans micro targeting only of political ads and not of other kinds of ads like an ad for let's a cell couches or something like that and then that raises another problem, which is that it's a content specific speech and that might run afoul of a of a case involving robo-callers that the supreme court decided last term, so i'm not i'm not at all confident that the current supreme court would uphold it. although i think that a proper understanding of the first amendment should allow the upholding of that line and i should just add i think that the supreme court's jurisprudence is based upon a marketplace of ideas approach the idea that counter speeches always the best solution that the truth will rise to the top. i think we need to recognition today that that's not always true. that speech is not always going to rise at the top and if there really are dangerous for voters and voters need some protection
from misinformation and disinformation. i wonder though, i never bought the marketplace an ideas metaphor. i've always thought that the basis for protecting free speech is much more distrust of government power and i wonder in terms of what you just said whether a court would be willing to allow the government to restrict political ads while allowing commercial ads. this political ads are always thought so much more to be at the core of a free speeches about and of course nothing would stop the sending of the political ads to all the voters in the district or all the voters in the state. it's about whether they're going to be targeted. and so we do know that campaigns will speak out of both sides of their mouth and target one message to one set of people and one to another i say it's like the difference between using a photograph to target someone and using a mind reading machine people don't recognize how much they give up in terms of their privacy when they sign on to these social media services and that they can be targeted and manipulated in this way. but i agree it's a very
difficult constitutional question. let me go to another reformative post which is about disclosing algorithms. talked about a lot with regard to reforms of regard to social media. could you explain what you mean by this and why you believe it would be beneficial? so an algorithm is just a fancy name for a computer program that tells tells a program what to do. so let me give another example from my cheap speech book. there was a time in october of i think it was in october of 2020 where if you went on to instagram and you did a search for joe biden on instagram some of the things that would be returned, you know, as in the search would be positive information about donald trump. but if you went on to instagram at the same time and instagram is owned by meta the same company that owns facebook you go on to instagram and you search for donald trump. you did not get positive statements about a positive
links to stories about joe biden and made explaining that this was a technical glitch. they weren't trying to do this but nothing in the law would stop them from doing this and even more than social media. what about search think about google's dominant position in the search market. what if google decided we like one candidate for president? we just like the other you could easily imagine the algorithm being programmed to give positive returns for one candidate and negative returns for the other now, i don't think the government has any ability to say to a private company like google or meta. you've got a favor both candidates even handedly and we can talk about that point later because i know that you and i have somewhat of a disagreement on this, but i do think that you could say disclose. so if is reason to believe that you are as a search company or social media company having biased results then you would have to disclose that you are engaging in this or you'd have
to give at least the ability not publicly but for government investigators to be able to look and see if the algorithm has been programmed in this way and then if it has been that information is simply reported and so people know it again as with my other solutions. most of my solutions are about providing voters with more information. so if an algorithm is being manipulated in a particular way and all algorithms make choices, but if it's being done in a way that favors one candidate or just favors another then that information one where there should be disclosed to voters so they know okay if you're going to this website you can expect to get some biased results again. let me ask the first amendment question would requiring the disclosure of the algorithms the form of compelled speech that would violate the first amendment. can't ask a newspaper to disclose why it chooses something to be in the headlines. it's something else to be on page 25 isn't requiring disclosure the algorithms asking the same thing as social media companies. well, first of all, i don't
think we would have public disclosure. so in terms of trade secrets or or how businesses being done, i don't think it would be this the same thing with a newspaper. it's very it's much easier to tell whether newspaper is favoring one candidate or another because everything that you see is what you get and if something is on page 25, you're already know it whereas you would not know necessarily that the searches that are being returned are not going to be the same. it was an amazing to me to see that if my wife and i will do the same search on google. we will not necessarily get back the same results because the algorithm is being programmed to give different people different results. so i do think that you you can do this and if it's not publicly disclosed, i don't think that it runs into the compelled speech problem. let me ask one overall question then go to the questions that we received from the youtube chat. the central problem i see you talking about this book is the
fall speech. that's so easy to occur because it's cheap speech. in yet as i go through your solutions, i wonder how many really deal with false speech the election administration proposals an important one disclosure is an important one. um prohibiting micro-targeting disclosing algorithms. do they really get to the underlying problem of false? speech because it's cheap speech. so even though my book has the subtitle about disinformation. it's not only about disinformation. so for example, one of the big problems i talk about we don't have time to talk about in this book. is that with the demise of local newspapers? we have much more of a risk of corruption because it turns out when local newspapers are not around to be the watchdogs then corruption can flourish. there's some very good economic studies about newspapers closing and being newspapers being far away from state capitals that this happens. so yes, you're right much of the
problems that make it harder for voters to make good decisions and that make it harder for our democracy to flourish or not just about misinformation and disinformation as i said earlier. there are many problems caused by cheap speech and i'm not saying that that the problem outweigh the benefits but we should target all of those problems today. i think because of donald trump. so much of our conversation is about disinformation in elections, but there are lots of other problems. i think if we did not have trump the conversation would be somewhat different many of the problems would still be the same after all i was worried about the risk of violence in our elections before donald trump came on the scene, you know, our social media and the information environment didn't create our polarization, but it certainly has provided more fuel for the fire. i have so many more questions that i want to ask, but we started to get questions in through youtube chat again want to encourage to listeners to send their questions and rick. let me pose to you some of the questions that we've gotten from listeners.
the first is what do you think about social media companies limiting content related to elections. are you saying that it's okay. so i accept for the two categories i mentioned which are empirically verifiable false speech about when where and how to vote lying to people about how to exercise their franchise and certain foreign campaign activity. i don't think that we can have mandated content limitations from the government the government saying you can't print this i think that would run, you know, especially or when if you're right that the first amendment is about distrust of government. just imagine the president you like the least getting to a point the speech star who decides what speech is allowed and what speech is not allowed very very dangerous. pressure to come onto the companies and so let me talk about something very specific and and also bring back in the question of law and the supreme
court. so on january 6th, we had the insurrection of the capital on january 7th, twitter and facebook. both private companies decided that they were going to remove donald trump from the platform. this is so called deep platforming. private decision. i think it was the right decision. i think that these companies that private companies that have a social responsibility. there should be a huge thumb on the scale in favor of including politicians even those with odious ideas, but at some point they crossed the line if you advocate violence or if you make a repeated statements that undermine the legitimacy of an election process without any evidence. think it's a good decision for these private companies to make to remove a candidate like a donald trump and facebook is going to have to decide next year whether to reinstate him because they're oversight board said you need to put a time limit on it. so they said two years and we'll come back and revisit and i think social pressure.
that's a non-legal response is a good way to go but florida and texas both states that support that have republican governments that that voted for donald trump have passed laws that would require social media companies to include content from politicians that they don't want to include and i was i have to say somewhat shocked when i saw the justice clarence thomas of the supreme court one of the most conservative justices on the court who on matters of speech has generally been quite a libertarian believing that you can have unlimited undisclosed money and elections has taken the view that such laws are in fact constitutional agreeing with some tentative ideas for professor vollock the professor who coined the term cheap speech they argue that social media companies are like telephone companies. they just allow people to communicate and don't communicate themselves. so verizon can't say we don't like your politics. we're not giving you a phone. i think that's a false.
analogy, i think that social media companies even though federal law federal law called the communications decency act doesn't treat them as publishers are in fact making publications decisions. they're making editorial decisions like newspapers those algorithms. tell them tell the computers which content to promote which content to demode if we didn't have moderation of content. imagine what our social media feeds would look like, they'd be filled with hate speech and pornography and pictures. we wouldn't want to see we want content moderation the idea that justice thomas would endorse a law that would require a private company to carry speech seems to me to be turning the first amendment on its head. it's the government telling you what message you as a private company need to do now on the flip side of this this goes back to the algorithm point about what if google starts favoring one candidate and opposing another that's a real danger platforms. make a lot of decisions that are
very important in terms of what we see and how we make decisions. but if they are too powerful the solution is antitrust law break them up rather than speech codes that tell them what they have to include or don't have to include let me ask you another question again from someone in the audience. how do you think social media companies have addressed information so far? so one thing i say at the very beginning of cheap speech is that my book is really narrowly limited to the issue of elections. and so i don't take on things like covid vaccine misinformation or how social media affects children teenagers and their self-esteem and you know, the use of non-consensual sexual images so called revenge --. so there are a lot of issues now, i can't really say that but in terms of elections, i think they've done a terrible job. first we had the situation where when trump was making these false claims of the election
being stolen facebook and twitter experimented with labels. this claim is disputed or learn more about elections and we know from some social science studies that those labels didn't convince voters that the that the speech was potentially false. they might have even inadvertently gave given the speech more prominence and gotten it more attention. then fast forward to after during the 2020 election after the 2016 election when the platforms were. criticized for allowing all kinds of information about hacked emails from the democratic party that influenced the 2016 elections. there was a story about hunter biden and his laptop that appeared in the new york post. it wasn't clear if the story was true or not if the laptop was actually legitimate, but facebook and twitter made what i considered to be the wrong
decision to remove the content or demote the content. again, their private companies they can do what they want. but i think that was an overreaction to what happened in 2016 and therefore voters were deprived of potentially reliable information. we didn't know if it was false or not. it turns out that the laptop information at least some of it according to reporting in the new york times. just last month likely was true. and so i think social media companies are trying to find this balance i criticize them but i don't claim that it's easy. they got into the business of trying to have friends communicate with each other and now they're in the business of you know, are they encouraging genocide in different countries? it's become a very difficult problem, but it's also a very profitable business. it's a very important part of society today and well, i guess it's both spider-man and justice kagan who said with power comes great responsibility. the next question that we got from someone who's watching focuses on your point about elections in integrity of election administration. it says should open source
election machine software be required for transparency, even though it would cause massive costs to replace proprietary software can that be done legally? so there's a huge dispute and i'm only on the periphery of it because i'm not a technologist about whether open source software is the best way to produce election machinery right on the one hand if it's open source, then you can have outside people confirmed that the voting machines are not being manipulated on the other hand if it's open source, you might provide new ways for hacking because people can kind of see under the hood figure out how the thing works and looks for look for solutions, so i don't have a well-informed opinion about that, but i do have two related opinions one. i've already given you every voting machine should produce a piece of paper because then you can assure that the the piece of paper can be counted by hand. we don't have to rely on potentially manipulated machine
counts. the other thing is that social sciences have recommended what's called a risk limiting audit certain kind of audit that is done. not the kind of fake audit that we saw the cyber ninjas looking for bamboo in the papers as we saw in arizona after the election to try to bolster trump's false claims of election week's phone but this is what election administrators do taking a statistical sampling of ballots to make sure that the announced totals match with the machines and ballots show and that sort of process as well as transparency elections is the best way to assure both that we have fair election administration and they have election administration that people can believe in. i don't know about looking under the hood, but this plenty on top of the hood that could be made more transparent and that could help to bolster people's confidence in elections the next question from someone who's watching. transparency of super pacs and dark money groups. how hard will that be? so we talked a little bit about
a related issue before which is that the supreme court has long said that disclosure of those who are spending money and contributing to elections for office can be subject to disclosure laws. you have to have an exemption for people who face a realistic threat of being harassed but these disclosure laws are constitutional for three reasons, they prevent corruption because you can look for deals between the contributor and the beneficiary providing voters with valuable information voters will sometimes use information about who's paying for an ad to figure out if they support it or oppose it if i tell you that that i ballot measure in california is supported by the national rifle association and opposed by planned parenthood. i bet you can figure out how to vote even if i don't tell you anything about the content of that initiative we rely on this information to make decisions and it can allow for enforcement of other laws like the band on foreign spending the problem
with disclosure at least putting aside the banta case which suggests the court is now getting skeptical about disclosure the problem with disclosure on the federal level has not been that this constitutional problem. it's been that the laws have been written in a very loophole laden way so it's very easy through super pacs and through other groups to get around the disclosure rules that can be fixed and there are a few bills that have proposed to fix it. it's not just about super pacs. it's about all kinds of groups that are spending money trying to influence elections. it's definitely a solvable problem and until maybe two or three years ago. i would have said no problem at the supreme court show up hold such disclosure laws because it would just be a natural extension of what the court at least since 1976 in the buckley versus vallejo decision has said is justified today though. i am concerned in part because the supreme court has changed
justice kennedy justice ginsburg justice breyer justice scalia. these were all very strong votes and favor of disclosure justice kennedy and justice scalia republican appointed conserve justices justice breyer and ginsburg. more liberal democratic point of justices there consensus on this issue. and no longer there's consensus by the end of the term. justice breyer will be gone. it's not clear to me that there's still a majority that has the same commitment and we know at least two of the justices the justices thomas and alito have expressed great reservations about campaign disclosure laws and in the banta case, i think we can add some of the other conservative justices as well. the next question in this to me really goes to the heart of your book. is there any way to come that disinformation from fox news your focusing the chief speech that goes on in the internet, but what about fox news in the
misinformation that they put forth? well, so i do try to say that my concerns about shape speech extend beyond the internet also to cable news and all other ways in which people get information today that they didn't get 30 or 40 years ago. there's a feedback loop. so, how do you deal with these problems? just like i think we can't have a law that says that facebook must include certain content or has to be even handed i would say this thing. think about fox news. you can't have a law that says, you know fox don't lie on tv. so, how do we deal with the situation? well, one way that we see that this is being dealt with this through defamation laws, which i discuss in the book as well foxes now being sued along with one american news network as well as newsmax and really giuliani and sydney powell lawyers who represented donald trump who all of them are alleged to have made false claims about voting machines
being manipulated in one case by some by the dead google chavez, i did i the theories are so outlandished in this election. you know, i just don't even understand all of them defamation is a way when there is a lie, and it is alive it injures someone's reputation. you can get damages now the supreme court said back in 1964 in a case called new york times versus sullivan that because of the constitutional risks of chilling speech the standard for a defamation claim against a public official government official and then later extended to all public figures is very high. you have to prove that the statement was made with actual malice meaning the statement was knowingly false or made with reckless disregard to whether it was true or false. and i think that is a very hard standard to meet. i think it might be met at least against some of the defendants in these cases and i think that's a good way to police at least some false information only gets to again lies that damage someone's reputation, but it is a partial tool.
i was also surprised to see justice thomas we talked about earlier who i'd considered. i think you and i have talked about this before how much of a free speech protector he's been in the past but someone inconsistent but a case called borussia versus lawson last year justice thomas as well as justice gorsuch neil gorsuch one of the newer members of the court suggested that the live a laws. perhaps should be loosened echoing donald trump making it easier to sue now. you might say well that's a really good solution for someone who's concerned about disinformation, which was precisely the point that neil gorsuch is justice gorsuch made in his concurring opinion saying we should take on this issue, but i'm concerned again about government attorney and the concern if you make it too easy to sue for public officials to sue then you're going to really chill news media going after those public officials in an aggressive way like they need to do to serve as a check on those
officials in our democracy. so while i think defamation is a good tool i like the compromise that the supreme court crafted back in the 1960s one, which is currently under pressure that would require this. you know, the change that that thomas and gorsters talk to would make it much easier. sue for defamation that may be benefits misinformation, but maybe chills too much speech and our erwin. this is i know something you study. i know i shouldn't turn the tables, but i wonder where you stand on this question. um guys, i had a question to ask you my question that don't answer your question. okay, the follow question. i want to be ask you is you invoke new york times versus sullivan. there is you know, the supreme court said there has to be constitutional protection for false speech. so there's the breathing space for speech to survive the supreme court and subsequent cases distressed the protection of false speech given how much your book is concerned about
false. speech. should we reconsider that premise of new york times versus sullivan? i don't think so because i think on that particular point the supreme court has evolved and it's thinking about false speech. i'm thinking of a case from 2012 called the united states versus alvarez, which is a very speech protective case. it's about a guy who lied about having won a congressional medal and the court in a kind of divided opinion said that that this law couldn't be enforced against the this this person but along the way the court said a lot of interesting things and one of those was the certain kinds of false speech where the where there is a compelling government interest in allowing it to be described so for example laws against perjury, so if you get up on the stand, you take an oath to tell the truth and you lie, it's hard to do. but if it's proven that you've lied, you can be subject to criminal prosecution and justice kennedy. i believe it was and the alvarez case said it's so important to
protect the integrity of the judicial process and related law enforcement purposes that if someone's going to lie like that we can prosecute them for this. so that is punishing someone for false speech fraud, right? so if if someone defrost another person and and takes their money, you know you to fraud, you know an elderly person of their life savings. we allow that to be prosecute. we don't allow the person to say free speech or blackmail, right? there's all kinds of speech that we say that speech is not protected. so the first amendment is not absolute. it's not just about yelling fire and in a movie theater, it goes much broader. and so the claims i make about certain kinds of fall space like lying about when we're and how people vote is that there's a compelling interest there too. but remember most of what i'm to limit that speech but remember most of my what i'm trying to do is provide more speech whether that is disclosure of information labeling of deep fakes as altered. most of what i'm doing is giving
voters more disclosure of algorithms giving voters more information to make informed decisions. and then answer the question post me i think new york times versus sullivan got it. exactly right the premise of new york times were sullivan as there's the open and robust debate about those who hold and run for public office and i think in order to protect that we need a standard like new york times or sullivan that limits defamation liability. so i think on this issue you and i very much in agreement. let me try in our last minutes to get two more questions in first is how would you recommend including information about disinformation misinformation in critical thinking skills in schools, and they about high school levels and above. is it being taught? so this is kind of like here's another area where i'm not an expert. i'm not an expert on on education digital literacy, but i have read what those experts say, and it is being taught and i think it's there's a really interesting dichotomy on the basis of age right now.
so older people turn out to be more likely to share false election related disinformation then young people in part because they're i think less discriminating and when they see something they are more likely to believe it. so the problem with with older people on social media is that they might be more like likely to be taken in by the speech with younger people. there's a different problem, which is they are flooded with so much misinformation that they discount all information and they, you know, they don't believe anything and so that itself is problematic what we need to do is teach young people how to decide when something is reliable information. i remember when my kids were going to school it was like don't rely on wikiped. you know, you have to do your own research now today wikipedia is actually one of the more reliable sources online, but i offer a specific suggestion in the book. so i say in this to help with this digital literacy. i say that journalistic societies should set up a
voluntary seals of approval right? so like a good housekeeping seal of approval. they should say if you buy again, this is private not government if you abide by these rules that journalists accept as as a required morally required like you have to get two sources you have to give the person you're writing about a chance to respond. then you get the sale of approval and then that seal of approval could voluntarily be put by the social media companies next to the the name, you know, so los angeles times has little eye contact. okay, this is a source that generally can be trusted. so i think if we have that and let's say that breitbart comes in and asks for the seal of approval and we have a debate about that. i think that itself would be edifying about how journalists do their job but what it means to abide. objective journalistic norms i like the next question is one to end on and it's one that really gives you the chance to restate your overall thesis. it's where do you draw the line about elections and election related?
i think that should be speech about when to step into protect truth and when not to this is the really hard question, you know when who should get involved and when and the cost of the concerns about the first amendment? it's very difficult question. so we have a commitment both to robust campaigns and robust speech about politics and other things and a commitment to democracy a place where people will be able to vote and as a supreme court has long recognized that voters will be able to be informed right and formed citizenry. the supreme court said is a compelling interest that the government has making sure that voters are are aware of what's going on and can make decisions consistent with their own values and interests. so, how do you balance the two? with those very narrow exceptions we talked about i don't think the solution is speech policing by government. i don't favor return to the fairness doctrine. i don't think we can go back to i don't think we'd say to facebook you need to present
even handiness. we're gonna have a government bureaucrat that's going to decide that or not. but there are many things that the government can do like require the production of additional information who's behind the messages you receive? is the video that you're watching one that has been altered to make it look like a politician is doing something embarrassing. or is this a genuine video? but beyond that it's not just the government's responsibility to deal with this problem. that's why in the last part of cheap. speech. i say that there's a lot that all of us can do it's about creating not just these journalistic norms, and it's not just about social media companies being pressured by their customers and their employees to do the right thing. it's about finding a way to balance these concerns while still having a respect for science the scientific process and the rule of law and
democracy and that is a multi-year project. i think it requires finding people who can come to the center. say we disagree about issues about taxes or abortion or about immigration, but we agree we should have a fair election system. we're all eligible voters and only eligible voters should be able to cast a ballot that should be fairly and accurately counted. we agree that people shouldn't lie about elections being stolen. we agree that voters should be able to have access to information to make informed decisions and we agree that. science is a process. it's not just there is a truth but the very active communicating helps us to figure out what the truth is. and so we need to have an open robust democracy where people can discuss issues. we also have to recognize that in this this new information environment we face. big challenges about how to assure that voters continue to get that information. so we need to come together support those intermediaries that help us to tell the truth. we have just a few minutes left
and i wanted to leave them for you to deliver your thesis to the audience or if there's anything i didn't ask you about that. you most want to say about the book what concluding thoughts. do you want to leave the audience with? well, i think we've hit on the main themes of the book that cheap speech the air of cheap speeches has been a mixed blessing for the united states and for the world that it is good that voters and and people have access not only to more information, but the voters can express themselves. but it creates a challenge for our democracy creates a challenge in terms of getting voters the information they need and having faith in our elections, you know, there's something political scientists refer to as losers consent. it's the idea that to have a democracy those who are on the wrong end of the election, you know, the my candidate didn't win. grumble about it, but they agree
the election was fair and square and they say, all right, we'll live through this next period and in the next election, we'll try again. when you don't have losers consent when people don't believe that the system is being fairly run then your whole democracy is at risk and so i wrote cheap speech worrying about the risks to our democracy and the course of writing cheap speech. i became even more worried about those risks, but i do think that rather than end on a note of despair. i i i'm gonna end on a note of vigilance. there's stuff that we can do. there are stuff that we can do in the private sector because the first amendment limits what could be done by the government and because even if there wasn't a first amendment as i say in cheap speech we wouldn't want a government speeches are telling us what we can say and what we can't say and so the future is really in our hands. it's a very delicate moment for american democracy. but as one in which i think we need to do our best to assure that we continue to have the jewel commitments to robust speech and to free and fair elections. that's a wonderful place to end this conversation.
premise of your book, is that the internet and social media have dramatically changed their nature for speech. i think they're the most important developments of our free speech since the development of the printing press centuries ago, and i think you do a very nuanced job of explaining there are benefits that but there's costs and we need to find ways of dealing with the cost one of the great things about this book is the detailed proposals that you make for change so i would very much encourage everyone to get the book. it's called chief speech how disinformation poisons are politics and how to cure it. it's written by richard hassan. i want to thank my dear friend rick for giving me the opportunity for this conversation. i want to thank the commonwealth club for inviting us and i think all of you for joining us, i'm ruin shimmerinsky. it's truly been a pleasure to be part of the conversation. thank you on about books we delo
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