Say hello to the new “oligarchy of speech’

As the price of something precious, the dissemination of speech, declines steeply, society is facing some disquieting consequences of the cheap speech that the Internet enables. Among the responses are conservatives demanding new government regulations of privately owned but liberal-leaning businesses. And liberals, who excoriated the Supreme Court’s Citizens United decision that corporations and unions have a constitutional right to fund speech about political candidates (independent of the candidates’ campaigns), are defending the freedom of enormous corporations to influence political speech.

Such oddities are explored by Eugene Volokh in “What Cheap Speech Has Done: (Greater) Equality and Its Discontents” in the UC Davis Law Review. Volokh, law professor at UCLA, notes that the Internet has radically reduced the importance of the “oligarchy of speech” that existed when large media entities acted as gatekeepers to the public forum.

Says Volokh, “Oligarchy, how quickly many have come to miss you!” Here’s why.

While the “old expensive-speech system” may have seemed “undemocratic,” at least the media owners were disciplined by market forces, they valued their reputations, and because they had financial assets, they were disciplined by the risk of liability for, say, libel. The Internet has, Volokh says, “the vices of those virtues.”

Many people who spread hoaxes and “fake news” with a few clicks have no significant assets, financial or reputational, that are risked by issuing, say, defamatory falsehoods. The First Amendment generally protects reckless speech. And a 1996 statute stipulates that Internet content and service providers do not have the legal status of publishers or speakers of material posted by others.

Hence, says Volokh, “for much online material, there is no potential institutional defendant who might be held accountable.” Thus there is no “incentive to police speech.” So, “courts have shifted to a remedy that had long been seen as categorically forbidden — injunctions against libel,” whereby continuing to libel becomes criminal contempt.

Laws also can protect against invasions of privacy. North Dakota criminalizes intentionally or recklessly engaging in “harassing conduct by means of intrusive or unwanted … words” that annoy or alarm a person by affecting his or her privacy. Volokh says “the era of ‘cheap speech’ has pushed courts and legislatures to criminalization to deal with the danger posed by judgment-proof speakers.”

Newspapers, which cost money to publish and make money from advertisers and subscribers, are accountable in multiple ways. But because Internet users can speak cheaply and without persuading “any intermediary about the worth of their speech, judges are likely to see much more speech that seems pointless and ill-motivated.” Volokh is uneasy about courts enforcing such judgments. Today, three non-government intermediaries — Facebook, Google, Twitter — mean that control “is more oligarchical than ever.”

Supreme Court Justices Neil Gorsuch and Clarence Thomas have expressed dissatisfaction with the court’s 1964 ruling that public figures who claim to have been libeled must prove “actual malice” or reckless disregard for the truth. Gorsuch considers this standard essentially “immunity from liability” and suggests it is responsible for “the publication of falsehoods by means and on a scale previously unimaginable.” Thomas agrees that the 1964 ruling, by protecting from libel suit “those who perpetrate lies,” has contributed to a “proliferation of falsehoods.” In 1993, Elena Kagan — then a law professor, now a colleague of Gorsuch and Thomas — said “the obvious dark side” of the 1964 decision “is that it allows grievous reputational injury to occur without … any effective remedy.”

A right to protection from reckless reputational injury is implied. This, too, reflects what Volokh calls the legal system’s “struggle with the dark side of cheap speech.”


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