The Supreme Court is an obstacle to fair elections, a new book argues

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The U.S. Supreme Court is likely to block attempts to reduce false advertising and foreign interference in elections, a prominent expert argues in a new book that is focused on filtering good information from bad in the public square.

The “strong libertarian impulses of some justices on the Court” will likely doom efforts to balance protections for free speech with the desire to give voters “access to reliable information,” according to Richard L. Hasen.

The Supreme Court justices pose for a group photo.
The Supreme Court justices in April 2021. (Erin Schaff/Pool via Reuters)

Hasen’s book “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It” lays out several potential reforms that could increase the trustworthiness of public information, but it also says that the Supreme Court’s 6-3 conservative majority is likely to oppose many of them.

Hasen, a professor of law and political science at the University of California, Irvine, said the court’s conservative justices have an “outmoded” view of how to apply the First Amendment’s free speech protections that relies on a “marketplace of ideas model in which citizens debate ideas publicly and the truth rises to the top.”

Though skeptical that such a purely self-regulating marketplace of ideas has ever existed, he is adamant that it does not now, writing, “The marketplace of ideas is experiencing market failure.”

Hasen says the First Amendment is a vital “bulwark against government censorship” but adds, “The greatest danger today is a public that cannot determine truth or make voting decisions that are based on accurate information, and a public susceptible to political manipulation through repeatedly amplified, data-targeted, election related content, some of it false or misleading.”

In an interview on “The Long Game,” a Yahoo News podcast, Hasen said, “It’s so much easier for cheap speech to spread, for misinformation to spread, and harder for the truth to arise.

“We may not get the counter-speech that the Supreme Court is assuming we’re going to get to allow us to make informed decisions,” he said. “So I want us to have laws that require disclosure of information so that people can make more informed decisions about what’s going on with elections and politics.”

Hasen is calling for “tighter” bans on foreign spending in elections, laws requiring disclosure of who pays for online ads if the spending is “significant,” and a “narrow” ban on “false speech about the mechanics of voting,” such as “when, where and how people may vote.”

A sign outside a polling location reads: Vote here.
A sign outside a polling location in Miami Beach. (Scott McIntyre/Bloomberg via Getty Images)

These provisions would not apply to “general statements that an upcoming election will be stolen or rigged” unless those comments include “empirically falsifiable details about how this stealing purportedly would happen.” So most of then-President Donald Trump’s false rhetoric ahead of the 2020 election would remain legal. But attempts to mislead voters about where their polling place is or what day they can vote, or how, would be illegal.

Hasen thinks this narrow ban on false election speech might survive the Supreme Court but that the court’s conservative justices will be more skeptical of tightening the ban on foreign spending and of any attempts to require disclosure of online political advertising.

There are questions about what counts as an attempt to influence an election, and a few conservative justices have increasingly come to the view that there is a “general right to anonymity when engaging in a campaign activity.”

Justice Clarence Thomas has long had this view, Hasen writes, but in a July 2021 case — Americans for Prosperity Foundation v. Bonta — the court’s conservative majority “signaled a more skeptical approach to the constitutionality of campaign disclosure laws.”

But disclosure would make it easier for voters, Hasen said, to interpret the credibility of campaign ads and social media campaigns.

Justice Clarence Thomas.
Justice Clarence Thomas. (Erin Schaff/The New York Times/Pool via AP)

“I am sure that moderate Alabama Republicans targeted with Facebook messages from what appeared to be a group of Baptist teetotalers purporting to support a ban on alcohol and back Republican candidate Roy Moore would have viewed the credibility of such messages differently if they knew that the ads actually were the product of a left-leaning independent group that was trying to elect Democrat Doug Jones to office during the 2017 special U.S. Senate election to replace Jeff Sessions,” Hasen wrote.

He argues that Thomas, in particular, is “inconsistent” in the way he rules on issues of speech.

In a 2021 case, Biden v. Knight First Amendment Institute, Thomas “suggested that platforms such as Facebook and Twitter could be compelled to carry speech from politicians that they do not wish to carry, much as private telephone companies are required to carry phone calls from everyone regardless of viewpoint.”

“That Thomas of all people suggested regulating the content that private companies can include or exclude on their own websites is breathtaking,” Hasen wrote.

“In Justice Thomas’ world, the Koch Brothers or General Motors or George Soros could spend whatever they want, undisclosed, to support or oppose candidates to office, and Fox News or MSNBC could be as biased as they want … excluding whomever the companies do not like from their stations,” he said. “But Twitter, a private company, could not decide to exclude a candidate who had called for violence or perpetuated lies.”

In other words, Hasen writes, the decisions by Facebook and Twitter to deplatform Trump after he incited the insurrection on Jan. 6, 2021, were not censorship. They were a form of speech.

Donald Trump.
Then-President Donald Trump speaks at a rally near the White House on Jan. 6, 2021. (Eric Lee/Bloomberg via Getty Images)

“When Facebook decides to deplatform Donald Trump, they’re making the same decision that Fox News makes, that they don’t want to put Bill Clinton on TV,” Hasen said.

Thomas “sees a social media company as closer to a telephone company than closer to Fox News or the New York Times, which is fundamentally wrong, because both the media companies and the social media companies are curating content,” Hasen told Yahoo News. “They’re deciding what message that they’re putting out.”

Hasen said the government should not dictate to these private companies how to speak or not speak, a principle that the Supreme Court has upheld in the past in ruling against “compelled speech.” But he said the government could require the platforms to show their algorithms to inspectors if there was evidence that they were favoring one candidate over another. And Hasen voices modest support for using antitrust law to break up the big tech companies if there is evidence of “platform bias.”

But he is more concerned about the bias of Supreme Court justices, particularly Thomas, whose marriage to conservative activist Ginni Thomas has drawn increasing scrutiny this year.

“More and more the court is looking like no friend of democracy and just another partisan actor,” Hasen wrote in an essay for Slate.