The New York Times published an op-ed on Monday which called for more censorship in order to ‘protect democracy.’
The op-ed titled “How to Keep the Rising Tide of Fake News From Drowning Our Democracy,” argued the “marketplace of ideas” model is outdated.
Author Richard Hasen, who is a professor for the University of California, Irvine School of Law, wrote about “cheap speech” in which he describes as viewpoints he alleges are ‘disinformation’ and ‘misinformation.’ He argues for “new legal tools” that will help combat “cheap speech.”
“Among the legal changes that could help are an updating of campaign finance laws to cover what is now mostly unregulated political advertising disseminated over the internet, labeling deep fakes as ‘altered’ to help voters separate fact from fiction and a tightening of the ban on foreign campaign expenditures. Congress should also make it a crime to lie about when, where and how people vote,” Hasen wrote.
However, Hasen isn’t optimistic that these changes would be upheld by the Supreme Court.
“Unfortunately, the current Supreme Court would very likely view many of these proposed legal changes as violating the First Amendment’s free speech guarantees. Much of the court’s jurisprudence depends upon faith in an outmoded ‘marketplace of ideas’ metaphor, which assumes that the truth will emerge through counterspeech,” Hasen wrote. “If that was ever true in the past, it is not true in the cheap speech era. Today, the clearest danger to American democracy is not government censorship but the loss of voter confidence and competence that arises from the sea of disinformation and vitriol.”
He goes on to argue that even if all his proposals were passed into law and were upheld by the Supreme Court, the First Amendment would prevent further action in which he argues is needed.
“Even if Congress adopted all the changes I have proposed and the Supreme Court upheld them — two quite unlikely propositions — it would hardly be enough to sustain American democracy in the cheap speech era. For example, the First Amendment would surely bar a law that would require social media companies to remove demagogic candidates who undermine election integrity from social media platforms; we would not want a government bureaucrat (under the control of a partisan president) to make such a call. But such speech is among the greatest dangers we face today,” Hasen argues.