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  • Writer's picturePeter DiSilvio

Combatting Cheap Speech

In a recent opinion piece for the New York Times, noted professor of law and political science Richard L. Hasen made several suggestions for combatting cheap speech. More specifically Hasen, the author of Cheap Speech: How Disinformation Poisons Our Politics―and How to Cure It, believes that the seemingly infinite amount of information that average citizen has access to has come with various dangers to democracy itself. To this end he made several suggestions of policies that, if enacted, could set right the trajectory of the United States and the western world as proponents see it.

What is Cheap Speech?

Cheap Speech, as coined by First Amendment Scholar Eugene Volokh in his 1995 piece "What Cheap Speech Has Done: (Greater) Equality and Its Discontents", refers to the modern media environment where readers, viewers, and listeners are able to receive speech from a practically infinite variety of sources unmediated by traditional media institutions, like newspapers, that had served as curators and gatekeepers.

As Hasen admits in his piece, cheap speech has had many benefits, both foreseen and unforeseen by Volokh, including greater transparency of government and various societal changes. However, there are several issues that has

What Are the Downfalls of Increased Information?

While no one argues that we should turn back the clock to a time when influential people have the power to kill a story, we must acknowledge the many drawbacks cheap speech has presented.

Firstly, as written about in the Atlantic, American cynicism has reached an all time high. Faith in government, the elected officials who run it, and the very process of selecting those individuals has plummeted in recent years. The influx of speakers into the public consciousness has created a crisis of confidence; no one is sure who is speaking as an authority or a laymen, who is a profit and who is a charlatan. Cheap speech has also lowered the costs for like-minded conspiracy theorists to find one another leading to an even greater loss of faith in our institutions.

Policy Suggestions

"Paid For By..."

When you see a political ad on television or receive one in the mail campaign law requires that it contain a line to the effect of "Paid For By" and the name of the person who provided the advertisement. Social media posts and online advertisements, with very few exceptions, are not bound by these restrictions. By expanding labeling requirements we will give the public at least one tool to discern whether or not information is reputable.


One suggestion that has been floated in recent years to convey that a site or service is a reputable news source is a new top level domain, or TLD. The suggested suffix at the end of a website, in place of the commonly known .Com or .Net, would be .News. There are already many TLD's in use that organizations can choose from. Creating a strictly controlled .News extension would allow standards to be set for websites that purport to cover the news. Ideas like this, while simple, allow for the public to have yet another way to gauge the trustworthiness of what they see online.

Requiring Labeling

Another way to better protect the public, in several arenas including politics, would be a requirement that pictures and images come with a warning when doctored. Obviously, when it comes to politics this would be exceptionally helpful so that users have an idea of whether or not a video or picture they are seeing reflects real events or not that might effect their vote.

Another benefit to labeling outside of the public arena would be its effect on the mental health of users. Photoshopped photos of celebrities or heavily edited videos meant to look candid are setting unrealistic expectations for young people. Eating disorders, anxiety issues, and depression have all been tied to people trying to live up to the fictional idealized versions of celebrities being touted on platforms such as Facebook and Twitter.

Amending Section 230

As discussed in another recent post, under §230 of Title 47 of the United States Code an information service provider such as Twitter or Facebook is not be treated as a "publisher or speaker" of information from another provider and to make these same companies immune from civil liabilities for these same services when they remove or restrict content from their services they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected", as long as they act "in good faith" in this action.

There have been many discussions in recent years, beginning with an Executive Order by President Trump in large part, to amend or repeal this law. While some of those efforts strike me as overly broad, there is definitely a need to effect change.

Amending §230 to create some framework for holding social media giants liable for the content shared on their services and the content they remove should force these companies to make large investments to come into compliance. It is unrealistic to think that a company such as Facebook would simply close up show in the United States rather than take efforts simply to avoid legal liability.

Oh You Can Vote Across Town

Another mechanism floated by Hasen was another expansion of legal liability. Specifically, Hasen suggests Congress make it illegal to lie about the time, place, and manner of voting. Under 18 US Code § 594 it is already illegal to intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose [1]. Lying, I would argue, can be seen as a type of coercion already. Why not expand the law to include individuals who knowingly distribute false information regarding voting requirements with he intent of effecting an election?


Finally, Hansen suggests a prohibition of microtargeting in advertisements. Microtargeting, often used by political parties and election campaigns, includes direct marketing datamining techniques that involve predictive market segmentation (aka cluster analysis). It is used by the United States Republican and Democratic political parties, as well as candidates to track individual voters and identify potential supporters. The Russian Interference campaign also included microtargeting of American voters in order to effect the 2016 Presidential Election.

As the technology to microtarget expands to include not only hyper-specific advertisements but also messages specifically designed by algorithms to influence individuals the possibility for abuse only grows. Make no mistake, advertisers on both sides of the political spectrum are using increasingly sophisticated technology to effect, some would even argue brainwash, the public. Such conduct cannot be allowed to continue or else elections will only be decided by who has the best artificial intelligence driven advertising campaign.


A discussion of microtargeting leads to the larger question of what to do about algorithms. Algorithms, complex equations, are used by internet providers to curate search results, suggestions, and newsfeeds. These same formulas are used to insure that each individual user is being fed the content most likely to keep them engaged in the site they are visiting. Basically, algorithms create a scenario where users become addicted to the positive reinforcement social media provides or, at least, whatever chemicals in that persons brain that social media stimulates.

As these algorithms get better, more advance, technology companies will become better at controlling the behavior of their users. This was proven by a Facebook study that showed slight changes to an individuals newsfeed allows the social media giant to effect the mood of the user [3].

If these algorithms are allowed to continue to improve and effect citizens, the consequences could be disastrous. A single company could develop the means to depress or excite an entire swath of the population. Elections and social movements could become the plaything of silicon valley or, worse yet, a hacker with the ability to effect one of these social media behemoths without them even realizing it.

What To Do?

There is no clean or clear answer to the issues we face in an era of cheap speech. Many of the societal and social progress of the last 30 years is directly tied to the ability of people to share information regardless of background or location. We cannot sacrifice the path toward unity for the sake of stopping division. However, we must also not ignore divisions simply because we hope they will be outweighed by the benefits of unity.

We must each be vigilant and our leaders diligent in combatting the excesses of cheap speech and, when possible, curtailing its vices.



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