"What Cheap Speech Has Done: (Greater) Equality and Its Discontents"

I'm serializing a forthcoming law review article of mine.

You can read the latest draft (which is forthcoming in a UC Davis Law Review symposium); but I thought I'd also serialize it here. To begin, with the Introduction (minus many of the footnotes).

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"Freedom of the press," A.J. Liebling famously said in 1960, "is guaranteed only to those who own one." Others elaborated: The "press … has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events." "[T]he power to inform the American people and shape public opinion" has been "place[d] in a few hands."

"[O]n national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis." "[T]he public has lost any ability to respond or to contribute in a meaningful way to the debate on issues." Where is true freedom in this sort of oligarchy of speech, the argument went?

The "cheap speech" made possible by the Internet famously democratized mass media communications.[1] Many inequalities of course remain, related to wealth, fame, credentials, reader prejudices, and the like. (It's hard to imagine a nation or an institution where all speakers really had equal influence.) But it's easier than ever for ordinary people to speak to large groups. It's easier than ever for them to create audio and visual works, as well as text. It's easier than ever for a few of them to get mass individual followings without the need for an imprimatur from the "mainstream media." It's easier than ever for groups of ordinary people, whether formally organized or just loose sets of social media connections, to spread ideas that they find worth spreading.

Oligarchy, how quickly we have come to miss you! Or at least certain facets of what you provided: many of the criticisms of the modern Internet media ecosystem—and many of the legal and social reactions to it—stem precisely from its greater egalitarianism, or so I will argue below.

For instance, while the old expensive-speech system was rightly criticized as undemocratic, the flip side was that the owners of the press had assets that were vulnerable to civil lawsuits, and those owners were thus disciplined by the risk of liability, as well as by market forces. They also had professional and business reputations that they wanted to preserve: if reporters spread something that proved to be a hoax, it could mean loss of a job (or at least of opportunity for promotion) for them, and public embarrassment for their news outlet—consider Dan Rather and 60 Minutes being duped in 2004 by the fake President Bush National Guard memos.

Say what you will about the old mainstream media, but it didn't offer much of a voice to people obsessed with private grievances, or to outright kooks, or to the overly credulous spreaders of conspiracy theories. In 1990, someone who wanted to educate the world about an ex-lover's transgressions would have found it hard to get these accusations published, unless the ex-lover was famous.

Likewise for someone who was arguing that some mass murder (the 1990 analog of the 9/11 attacks, or of the Newtown school shooting) was faked or secretly planned by the government. The media acted as gatekeepers. And while the gates shut out much good material, they shut out much bad as well.

Today, though, those of modest means and the anonymous (literally and figuratively) can speak to the world, and can often find an audience, in Google search results even if not in daily visitors to a site.[2] And while this democratization and greater egalitarianism has many virtues, it has the vices of those virtues.

Anyone can say anything about anyone—and they do. They can easily publish complaints, including lies, about acquaintances, ex-lovers, and local businesses. They can publish photographs of their ex-lovers naked. And while the typical "Violet Schmeckelburg done me wrong" site won't have many readers, it might easily come up as the top result in a Google search for "Violet Schmeckelburg."[3]

And many people can do all this without being much deterred by the risk of liability for libel or disclosure of private facts: because the speakers have very little money, they have little to lose from a lawsuit, and potential plaintiffs (and contingency fee lawyers) have little to gain. There are mean and irresponsible rich people as well as poor people; and there are mean and irresponsible publishers at media organizations, despite the market constraints under which the organizations operate. But those with assets can at least be sued for damages. Damages lawsuits against those without assets are largely quixotic.[4]

The legal system's remedy for this, perhaps to the surprise of some, has been increased criminalization:

• Anti-libel injunctions have become much more common, likely because they offer the prospect of enforcement through the threat of criminal contempt (or of jailing under a civil contempt theory until the defendant takes down the libelous material).
• Criminal libel statutes continued to be enforced, likely to the tune of about twenty to thirty prosecutions per year, in the about a dozen states in which they exist.
• Prosecutors are rediscovering criminal libel law by using other statutes, such as criminal harassment statutes, to go after persistent defamers.
• And the disclosure of private facts, in recent decades the domain of the disclosure tort, has increasingly been fought using criminal prosecutions as well.

Cheap speech also allows people to forward hoaxes, false conspiracy theories, and generally "fake news" at the click of a button. Nonprofessional speakers are just as protected by the First Amendment as is the institutional media.[5] But they may, on average, lack the professional skepticism that mainstream media editors and reporters tend to cultivate. They may lack (again, on average) the background knowledge that helps them sift the true from the false. They often need not worry much about professional or reputational sanctions (or libel lawsuits if those hoaxes also malign someone in particular). To be sure, many social media users may be much more cautious and thoughtful; but plenty aren't.

And the Internet has made it easier for groups to effectively speak to their members and to fellow travelers. Well-established groups (the NRA, the ACLU, religious organizations, and the like) had long been able to do that, though at nontrivial cost. But now any group, including a small upstart, can do the same. And naturally this includes groups whose views we might disapprove of, and which historically found it much harder to speak (because they lacked the money for mailings or broadcasts): pro-terrorist groups, white supremacists, riot organizers, and the like.

The reaction here has not been criminalization, because First Amendment doctrine likely protects such speech from governmental restriction, whether through criminal punishment or civil liability. But it has been a push towards greater activism by private platforms—the same sorts of oligarchic intermediaries that many had been so excited to cut out of the process.

In what follows, I hope to elaborate on all these points. My main task here will be descriptive and analytical, aiming to explain some possible reasons for what I describe. I will largely leave to others prescriptions about what is to be done; but I hope my analysis might help us think through such matters.

[1] See, e.g., Doe v. Cahill, 884 A.2d 451, 455 (Del. 2005); Dan Gillmor, We the Media: Grassroots Journalism by the People, for the People (2006); Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 895-97 (2000); Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805 (1995).

[2] Again, getting noticed is still easier if you have the money to advertise, or the ear of an existing media outlet that will pass along your speech to its readers. But the phenomena that I describe don't require that poor speakers have as broad an audience as rich ones —only that they can have an audience of considerable, and damaging, breadth.

[3] The John Smiths of the world might find safety in numbers, but those with less frequent names are much more vulnerable.

[4] In principle, people with a lot of money may also be hard to deter, especially if damages awards are set too low. There is the story of Lucius Veratius, an ancient Roman aristocrat who took advantage of the rule of the Twelve Tables (old even then), "If one commits an outrage against another the penalty shall be twenty-five asses," the as being a copper coin. The Twelve Tables, tbl. VIII, ¶ 4 (emphasis added). Twenty-five asses being nothing to him, he would walk down the street slapping people in the face; his slave would then hand the victim the money, and Veratius would go on to the next man. Aulus Gellius, Attic Nights (John C. Rolfe trans., Harvard Univ. Press 1927), http:/‌/‌www.perseus.tufts.edu/‌hopper/‌text?doc=Gel.20.1 [https://perma.cc/QCT6-NM9V].

But in practice, this doesn't seem to happen much, precisely because damages awards—including punitive damages for particularly egregious behavior—can be quite substantial. Consider the $140 million awarded to Hulk Hogan in the Gawker litigation. Eriq Gardner, Judge Upholds Hulk Hogan's $140 Million Trial Victory Against Gawker, Hollywood Rep. (May 25, 2016), https://www.hollywoodreporter.com/thr-esq/judge-upholds-hulk-hogans-140-897301 [https://perma.cc/8WNY-NPTN]. And while some rich defendants may expect that their expensive top-notch lawyers will avoid such liability, the prospect of liability can draw top-notch plaintiffs' lawyers (even absent an ideological funder for the litigation, as in the Gawker matter).

[5] E.g., Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1291 (9th Cir. 2014); Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 463-65 (2012).