Criminal Memes: The Ballad of Ricky Vaughn
2021-03-14 · Guest: Eugene Volokh (UCLA Law Professor) · 52:19
Technology and Free Speech Law
Bob Zadek interviews UCLA Law Professor Eugene Volokh about the intersection of technology and free speech law. They discuss the criminal prosecution of Douglas Mackey (Ricky Vaughn) for misleading voting memes, the concept of “cheap speech,” and the potential revival of criminal libel laws in the digital age.
Topics: Free Speech, First Amendment, Libel, Cheap Speech, Social Media, Douglas Mackey, Ricky Vaughn, Criminal Libel, Misinformation, Section 230
Speakers: Bob Zadek, Eugene Volokh
Introduction to Eugene Volokh [00:17]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning.
This morning’s guest is one of the leading—maybe the leading, but certainly one of the leading—legal scholars on a subject which is in the news virtually every single day. The mainstream news, even though—maybe I shouldn’t say even though, but I will—even though the topic is one of the meaning of the First Amendment, how it fits into our daily lives, the relationship between citizens and its government in so far as the regulation of speech is concerned.
And it has become even more so in the news because of the confluence of attacks on free speech, misunderstanding of what free speech actually means, and the pressure on free speech and the requirement that the law catch up and stay abreast of scientific developments and specifically developments in computer science. It has always been observed that the law in general is always breathlessly trying to catch up with technological advances. It never does catch up; it’s always breathlessly behind.
And that is the experience today. We have with social media and complaints about censorship in social media, we have governments seeking to find ways to protect citizens from being libeled—a private cause of action by other citizens. As you will learn this morning, the existing jurisprudence may be inadequate and has to catch up because of the advent of what you will learn to be “cheap speech.” All of this creates a lot of confusion, misunderstanding, and I felt compelled to invite this morning’s guest, Professor Eugene Volokh, who is a law professor teaching free speech law among other topics at UCLA School of Law.
Eugene is also and has been a computer scientist. He graduated college, I believe, at—or entered college, I believe, at 15, had an accomplished career in computer science before switching to the law and becoming a law professor and scholar, published author, and most importantly—not most importantly, but equally important—is the creator, co-creator, and co-blogger in The Volokh Conspiracy. The Volokh Conspiracy is a blog now sponsored by Reason magazine, and it is a daily blog. It is for me must-reading every morning. It covers the law in depth, easily readable, and the information is accessible to both lawyers, law scholars, and laypeople as well.
So, Eugene, free speech is so much in the law and your blog is so active. Thank you so much for joining us this morning to share with us the relationship between developments in social media and computer science in general and accessibility to wide audiences by individuals which we’ve never had before, and helping us to understand what the law is, what the law of free speech is in our country, and why it is so important to us. So, Eugene, thank you so much for joining us this morning.
Eugene Volokh: Very much my pleasure. Thanks for having me on.
The Ballad of Ricky Vaughn [05:51]
Bob Zadek: Now, Eugene, you wrote a recent blog—we’ll start with Ricky Vaughn and “The Ballad of Ricky Vaughn,” which was, I believe, the title of your blog. It caught my attention because it introduced me to so many concepts, so many aspects of free speech law that I didn’t know before, and I felt the audience probably isn’t aware of it as well. So, “The Ballad of Ricky Vaughn” raises quite interesting issues and, in my view, ongoing and provocative. So, tell us, if you will, about “The Ballad of Ricky Vaughn” and why you chose to write about this and the importance of this case to the listeners of our show.
Eugene Volokh: Sure. So, I chose to write about it in part because I was commissioned to write about it by Tablet magazine. They paid me a nice honorarium for it, and I thought, well, this is something I’ve been interested in. I might as well do this in the kind of long form that they asked me to do, about 2,500 words, so I got to get into this in considerable detail.
So, Ricky Vaughn was the pseudonym of Douglas Mackey, who was posting various memes in the 2016 election that at least he’s accused of posting misleading people about how to vote. So, here’s one example—unfortunately, it’s radio, so you can’t just see it, which makes it hard to describe a visual. It basically has a picture of a smiling Hillary Clinton, who was of course the Democratic nominee then, and it says, “Vote for her, vote from home, post Hillary presidential election hashtag.” On November 8th, type the word “Hillary” and post it to Twitter or Facebook using that hashtag between 7:00 a.m. and 9:00 p.m. Eastern to cast your vote for Hillary from home.
Now, of course, you can’t vote by posting a hashtag to Twitter or Facebook. It’s kind of obvious to most of us that you can’t do that. But there’s at least some reason to think that he was deliberately trying to mislead some people—very few, I mean, he can’t have anticipated misleading more than a very few—but that he was indeed trying to mislead people into thinking they could vote this way and as a result not actually voting the legally authorized way. And that might help to diminish the turnout for the number of votes for Clinton.
Can Lying About Voting Be Illegal? [11:11]
Eugene Volokh: So, the question—there are two questions here. One is: Can this be made illegal? Is this constitutionally protected speech or could it be outlawed? A second question is: Has it actually been outlawed? Is the statute that the government is trying to apply here applicable to this kind of speech?
In order for Mackey to be prosecuted, the answer to both has to be yes. His speech has to be both constitutionally unprotected and actually criminal. And my thinking is that I do think that speech that deliberately lies to people about the mechanics of voting—where to go vote, what time, what day an election is, how to vote in the sense of physically how to vote—that kind of speech is not constitutionally protected and can be properly punished as a kind of fraud. Just like I can’t defraud you out of your money by lying to you and getting your money as a condition of that, I shouldn’t be able to defraud you out of your vote either.
On the other hand, I think that broader lies about elections, or things that are said to be lies because of course there’s often a dispute about this, such as about the size of the budget deficit or the real reason for some government action or something like that—that, I think there’s a pretty good argument, although things are not completely clear on this, but there’s a pretty good argument that that kind of more generalized lie about the government, about the election, is something that probably cannot be punished. It’s not again open and shut; the Supreme Court has never resolved this question, lower courts are in disagreement. But I do think that it’s probably—or at least there’s a good argument that it’s just too dangerous to allow the government to be the arbiter of truth as to such things.
So, I do think that this meme, even though I think again most people would have recognized it as a joke and would have perceived it as absurd, I think if there is evidence that he was deliberately lying about this to mislead people, I think he could be punished for that. But the particular statute, which is not a statute banning lies about elections, it’s a statute banning conspiracies to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right secured by the Constitution—I think that statute can’t be used to outlaw this. That statute is just too non-specific on the subject. If it’s read to cover this kind of speech, it’s then too broad, it’s too vague as to this kind of speech. So, I think he should not be convicted, but I think he should be convictable if a narrower statute had been enacted and in the future if such a statute is indeed implemented.
Bob Zadek: But you hinted upon what I’m about to ask a second ago, and I want to just explore that a tiny bit more if I may. You made reference to the fact that of course this statute couldn’t apply to political commentary, Facebook postings, Twitter feeds and the like. It couldn’t apply if somebody was exaggerating the deaths from COVID or the size of the budget deficit or something of the kind.
Eugene Volokh: Right. I want to stress, it’s not “of course” it shouldn’t apply. I think it’s actually an open question on the subject. Again, lower courts are in disagreement on this, the Supreme Court has never resolved it squarely.
Bob Zadek: But it would seem impossible for the court, for an appellate court, for the trial court, to enunciate a rule that excludes political puffery but captures this act of “vote online, save yourself a trip to the polls, save yourself mailing in a ballot.” I played in my head with how one would draft a statute that would exclude what obviously must be excluded and include speech such as “vote for Hillary online using Twitter.”
Eugene Volokh: Well, I’m not sure it would be necessarily that difficult. We prohibit lies about specific things pretty commonly. I’ll give you an example. It is not a crime generally speaking to talk about how FBI agents are good or bad or even what their plans are supposedly for the nation, even if you’re deliberately lying about it, even if you’re saying the FBI is going to raid some place and you’re just making it up. On the other hand, it is a crime to say, “I’m an FBI agent, here’s my badge,” and it turns out it’s a fake badge, or even if you don’t show a badge, just say, “I’m an FBI agent, can I talk to you?” That kind of impersonation of a government official is a crime, and I think rightly so.
So, the law defines a very particular kind of lie and says this kind of lie—this impersonation of a government official—is particularly dangerous and it’s also particularly easy to figure out whether you’re doing that. It’s something that’s really pretty precise and doesn’t require a lot of judgment calls by judges or juries. Likewise, I think you can imagine a statute that says something like that it shall be a crime to knowingly provide false information about election procedures for the purposes of deceiving people into voting in an illegal time, illegal place, or illegal manner. “Illegal” simply meaning not legally authorized. It seems to me that would be a pretty narrow and clearly defined statute that ought to be constitutional, and there are some states that have similar statutes, although I prefer to tinker with the wording. I was quoting in part from the Missouri statute, for example.
Bob Zadek: So, the statute in question was a state law statute, a state criminal law statute, and therefore it was the state of Missouri who brought the action?
Eugene Volokh: No, no. I’m just giving it as an example of the kind of statute there might be. The statute that’s built on the Missouri statute, again, I would tinker with its wording. But some states do have such statutes, and I think it’s not that difficult to craft one that is specifically focused on these kinds of lies, not about big-picture questions, not about what the government is doing much less what it should be doing, but rather about very specific details of how it is one would go about voting.
Bob Zadek: And the statute in question in the Ricky Vaughn case—the statute was a state criminal law statute?
Eugene Volokh: No, the statute in the Vaughn case is a federal statute, and it’s a much vagguer, much broader statute. That is what I think is the real problem with this prosecution. Not that Mackey’s speech is somehow constitutionally protected in general, not that people have a First Amendment right to try to dupe people into voting the wrong way—that is to say, physically just using the wrong mechanism for voting—but rather that this particular statute is not the right tool for the job.
The Concept of Cheap Speech [17:51]
Bob Zadek: Now, of course, we’re having this conversation about the Ricky Vaughn case because Ricky Vaughn obviously took advantage of social media. And social media—one of the attributes that you have written about and we’re about to discuss, which you call “cheap speech”—we’ll explain in a moment. One of the qualities of cheap speech, as you have defined it and will explain in a moment, is that for very little money and very little effort—and we’ve never had this before in our history, it’s a technological change—is that an individual with very little resources can publish, that is expose to the public, share with others, large numbers of people, speech in a way that could never have been accomplished before. And you have called that “cheap speech.” And the Ricky Vaughn case was taking advantage of the fact that it wasn’t very hard, it wasn’t very expensive for Ricky Vaughn to publish this “vote for Hillary Clinton on Twitter hashtag,” etc. It wasn’t very hard to do that. And you have identified cheap speech, which of course includes your experience in your prior life as a computer programmer because it is all involving mass communication through the computer and through social media. And you have written about cheap speech and the effect that the accessibility of cheap speech is making pretty dramatic changes in First Amendment, i.e., protected speech law. So, when you refer to cheap speech, tell us what you mean about cheap speech in this context and how the accessibility of cheap speech is making pretty dramatic changes in First Amendment protected speech law.
Eugene Volokh: Yeah. So, back in the early 1960s, a media commentator named A.J. Liebling had a line that said, “Freedom of the press belongs to him who owns one.” And that was actually a common refrain, and rightly so, in the ’60s, ’70s, ’80s—that, well, we talk a lot about freedom and freedom of the press and free speech in the sense that the government can’t shut us down for what we say. But as a practical matter, how few people got to enjoy that freedom back then? Sure, free speech in the sense of being able to talk to a few people, anybody could do. But freedom to talk to potentially the nation as a whole, or even to thousands of people in your city, that was something that unless you either had the money—you could buy an ad in a newspaper—or had the ear of someone with money—for example, you were a newspaper columnist that newspapers agreed to publish—and many people argued, and again I think with some strength, that that was a major flaw in our system of speech, or major weakness in our system of free speech. That as a practical matter, that created kind of an oligarchy of speaking where only a few people, only the rich and the well-connected, were really able to speak to the public.
So, I think that was an apt criticism. And one of the remarkable things about the internet is how quickly it improved the technology to eliminate, in a sense, that criticism. So, I wrote my article “Cheap Speech and What It Will Do,” sort of a prediction in 1995 when the internet was just coming out. And I was arguing that the technology in this sense makes good on the promise of freedom of speech and promise of freedom of the press—that everybody would be able indeed to speak to the public. And in fact, that’s what’s happened.
The Downside of Democratized Media [23:34]
Eugene Volokh: But in this new article that I’m just publishing this year, kind of on the 25th anniversary to it of my original article, one of the lines I have is “Oligarchy, how quickly we have come to miss you.” That one of the things we’re seeing—and I don’t miss it, but I do think some people do at least as to some aspects—is that a lot of the concerns that we have these days about lies, about invasion of privacy, about supposed fake news and the like, stem precisely from the fact that we have democratized the media marketplace. We have made it possible for people to speak and say whatever they want to say. And sometimes they say bad things, right?
The internet, like the pen and like our voice, is a multipurpose tool and it could be used for good purposes and it could be used for bad purposes. So, for example, my sense is—and we can’t be, I mean, I don’t want to speak too categorically—but my sense is that some 40 years ago, you wouldn’t have worried quite as much about these kinds of memes because if somebody just distributed them in leaflets to a few people, you’d get a pretty narrow audience, and even that would cost some money printing up and distributing leaflets. And if somebody decided to give it to a newspaper, the local newspaper would say, “We’re not going to publish this because we think it’s going to deceive some people, it’s going to be bad for our reputation, it’s going to be contrary to our ethics as a newspaper.” So, as a consequence, not completely, not always, but as a general matter, at least some of this kind of pernicious stuff would have been blocked, or at least it would have been a lot harder for people to just blast it out there.
Likewise, let’s look at libel and defamation and things that—lies that damage someone’s character. Right now, if somebody wants to post something bad about me, they can put up a webpage or put something up on some gossip site. And then when people Google Eugene Volokh, they’ll see it. Now, I actually have the advantage that I have a lot of pages that say Eugene Volokh—I’ve been writing on the internet for a long time, so I have a wide Google footprint, so it’s a little harder for people to do that to me. But for most people, people who are not—who don’t have a lot about them online already and have an unusual name—somebody can very badly damage your reputation very inexpensively. Where before, of course, the LA Times could badly damage your reputation, but first as a practical matter only a very few entities had the power to do that and only a very few entities might be interested in you. Second, you know, for all we say about the mainstream media, they do have pretty substantial incentives not to be known as just people who just spread around lies about people. Among other things, if the LA Times damaged your reputation, you could sue them and, hard as it is to win a libel case, you might be able to win it and then they’d pay because they’ve got deep pockets. And even if they themselves don’t, they have an insurance company that will pay for the damages.
But now with cheap speech, someone who has no money, who’s what we lawyers call “judgment proof”—you can get a judgment against them but you can’t collect because you can’t get blood from a stone—can say all of these very damaging things about you at virtually no expense, and they can be around every time somebody Googles your name, they can be visible on the internet. So, we’re seeing that there’s been a bright side to the internet and a dark side, like with so much in human life.
Bob Zadek: Now, when you wrote your recent piece on cheap speech as a first installment on your—I believe it’s going to be a law review article on the consequences of cheap speech—one of my reactions, Eugene, when I read it was the complaint, if that’s not too strong a word, or the issue which you just identified is one of the possible problems is that somebody with little resources and therefore judgment proof—by the way, Eugene, in my day job in the practice of law, I represent lenders, so judgment proof is like almost an obscenity because it means my clients lose money, so I know very well about judgment proofdom because it’s part of my life. So, that’s why I focused on what I’m about to say.
So, you identify an issue that now somebody who is without real resources can use the free speech privilege to—not a privilege because it’s not protected—but can say something libelous which exposes the person making the statement to a damage claim. And your complaint, if that’s not too strong a word, is that the speaker is judgment proof and therefore it shows a weakness perhaps in the latitude that one has with free speech. And what occurred to me is when I read that is the fact that somebody who is judgment proof can do a bad act to somebody else and the victim has a claim, enforces the claim, prevails in court, only to find that the defendant has no money—that’s been happening since there have been courts. So, what’s special about the fact that the damage is caused by speech as opposed to caused by violence or theft?
Eugene Volokh: So, there are a couple of things. One is when we’re trying to protect ourselves from the various things that can protect us, one thing that can protect us is law. Another thing that can protect us is self-help. Another thing that can protect us is just the architecture of the world. So, it used to be that because of the nature of how people spoke and how hard it was to get your message out to a lot of people, we just happened to have pretty substantial protection against libels. It was far from perfect protection—libels, defamation, let’s say. It was far from perfect protection; people could still write letters about us and sometimes even if they didn’t reach thousands of people, they reached the right people to really damage our reputation. Sometimes they could hand out leaflets or get the ear of someone or appear on a radio show or some such. But it was pretty difficult. So, we had this protection. But now, it’s—we’ve lost this protection. And it could be for good reason; I’m not saying let’s abolish the internet or let’s only let rich people speak, by no means am I saying that. I’m just observing that the technology has changed in a way that makes us more vulnerable to particular harm.
A second thing to keep in mind is that you mentioned how is this different from say violence. Well, when somebody physically attacks us, assuming we can catch them, they can get prosecuted. So, one way we protect ourselves against people who damage us through violence is through the threat of jail, and not just the threat of damages. Some people are judgment proof, but nobody’s jail proof, assuming we can catch them. So, we—and then we incapacitate them by putting them in jail, keep them from attacking us again. But in about three-quarters of the states, criminal libel is no longer on the books. About a quarter of the states still have criminal libel statutes. And I think to the surprise of many observers, it turns out they are used on the order of a couple of dozen times a year to be sure—not a vast number, but it’s still out there. Some states, I think prosecutors do think that we do need to protect people from damage to their reputation through lies just like we need to protect them from damage to their pocketbooks through fraud or physical damage to them through violence or damage to their property through vandalism. But in most states, there is no criminal law remedy anymore, and the civil law remedy of damages just doesn’t work anymore that well because a lot of people can cause a lot of damage and not have any money to pay for it.
The Case for Criminal Libel [30:37]
Bob Zadek: So, I think what you’re saying is that a subtext in your bringing to our attention of the evils of cheap speech are that we have a harming of an individual by another individual no different than a battery or theft or fraud. And those last three—battery, theft, fraud—are all crimes. And it sounds like you’re pointing out that technology highlights and brings to the fore the fact that the criminal law system, specifically criminal libel, that is out of date. And we have a crime occurring that is not a crime under the statute books. And therefore, it seems to be—but if I’m misstating in any way what you’re saying, please correct me as I’m sure you will—that your commentary on cheap speech has as at least one subtext: fix the criminal law system because otherwise we have harm to citizens which strikes us as being wrongful, but it’s not protected by criminal law. So, is that the subtext? Is that what you’re indirectly, maybe directly, calling for is that criminal law—the criminal law of libel—become more robust and more widespread because citizens have an exposure that they have otherwise no protection?
Eugene Volokh: I appreciate your pointing this out, and I do think that it’s one of the things that I want to consider. I’m kind of ambivalent about this. A lot of law professors just think, well, criminal libel is this relic of the past, obviously unconstitutional to criminally punish libels, obviously not done anywhere at all. And I think that’s overstating it. I think that criminal libel laws, if properly crafted, are constitutional; the Supreme Court has said so. And I do think that there are plausible arguments for them. At the same time, there are also plausible arguments against them. Maybe on balance the view of the three-quarters of the states on this is right—that it’s just too dangerous to allow a prosecutor with maybe ideological biases of his own to threaten somebody with jail for the things they say, even if the claim is it’s a reputation-damaging lie. So, I think it’s a very serious issue. I’m actually trying to write an article called “Criminal Libel: Survival and Revival,” talking about how criminal libel law does still exist and how in some situations it’s being recreated, kind of through the back door through other statutes or they’re being repurposed to try to punish libel. And arguing that indeed there are plausible arguments for and against it, but I’m not sure. I’m not sure what the right answer is. I do think we need to consider it though because there really is a lot of damage being done, and I think quite unjustifiable damage precisely because of defamation through lies, through a form of fraud. And we need to be thinking about what remedies, if any, are potentially available for it.
Prosecutorial Discretion and Political Speech [36:35]
Bob Zadek: What is the best argument against—and I’ll ask a leading question of sorts—what is the best argument against a well-drafted—because of course one can be well-drafted—a well-drafted criminal libel statute? One that prohibits, I’ll be simplistic, harming another individual with untrue statements with the appropriate bad motive. Help me understand, and therefore our listeners understand, what is the best argument against a well-drafted criminal libel statute?
Eugene Volokh: Right. So, I think there are two main arguments against such a law. One is that it gives prosecutors the opportunity to basically go after people who may not be lying, but who the prosecutor thinks are lying or maybe the prosecutor just wants to claim they’re lying. Imagine that there’s a political enemy, say running a political campaign against an ally of the prosecutor’s. The prosecutor says, “Oh, you know, if I prosecute this person for this, that might derail their campaign,” prosecute them for some campaign statement, derail their campaign, create all these news stories, sort of free publicity for the opponent saying this person is being prosecuted as a libeler. It will distract the person, take away a lot of money because when the prosecutor has his eyes on you, you’re going to be spending a lot of your money if you have any money to try to fight that. And then you know, if I lose, if I the prosecutor lose and the charges are dismissed or the jury acquits, well, you know, it’s not my money that I’m giving up. So, on one hand, one problem with the civil justice system is that sometimes plaintiffs have to spend too much money in order to protect their rights, and maybe that creates too much of a disincentive to even meritorious lawsuits. But one problem with the criminal justice system is that the prosecutors, again, it’s not their money, they have too little disincentive to bringing unmeritorious lawsuits. So, there’s always the danger of kind of political misuse against your political enemies. And some of it, by the way, might be well-intentioned from the prosecutor’s view. It’s human nature to assume the worst of the motives of your enemies, best of the motives of your friends. So, if somebody is running against your political ally, you can very easily say, “Oh yes, those things the person is saying, obviously false, and they must be lies because I know people like that, they’re all a bunch of liars,” even if they are innocent mistakes or maybe they’re just statements of opinion or maybe even they’re accurate but the prosecutor doesn’t know they’re accurate.
And a second, perhaps related point is there’s so many libels out there and there will continue to be so many libels out there just precisely because it’s so easy for people to do that, that as a practical matter any such law would be sharply underenforced. And it’s going to be really a matter of: Does the prosecutor like the victim and dislike the alleged libeler? So, you might say that in that kind of situation where the underenforcement of the law is going to be so certain and so likely to be exerted in kind of viewpoint-based ways, that that ends up being too dangerous.
Bob Zadek: One observation: in giving us examples of why such a law has a danger—such a law being criminal libel statutes—almost all of the examples you gave were of the act that is complained of has a political motivation. But of course, the world of libel obviously is infinitely broader than just bad statements relating to an election. But of course, think of the MeToo movement when—or think of what goes on in college campuses—there is so much other damaging libel unrelated to politics where the motivation of the prosecutor might not be as suspect, it’s just enforcing the law to protect its citizens.
Eugene Volokh: Right. So, one possible way of creating a narrower criminal libel law might be to say that this criminal libel statute should be limited to statements on matters of purely private concern. That if you are talking about public matters, then in that case any remedy would have to be a civil law remedy through civil liability. But when you’re talking about purely private matters, then it should be done through the criminal system. Part of the problem though is our legal system has not done a great job of delineating in a sensible and consistent way what’s public and what’s private. Here’s an example of something just as I’m looking at libel cases that’s an extremely common pattern in civil cases. And tell me what you think about it how you would handle it as a criminal law matter. People post reviews of some business. And you know, if the review is clearly opinion—“I just didn’t like the food”—well, that can’t be libel because it’s obviously opinion. But somebody posts a review of a doctor and says, “You know, this doctor overcharged me and I had to go back three times to correct the problems caused by his bad treatment.” And you know, businesses tend to have money and as a result they tend to be more likely to kind of hobnob with prosecutors than the average random Joe. So, the doctor calls up the prosecutor and says, “Look, this is just so awful, my business is being damaged by this review, and I’ll tell you it’s just a lie. The guy—I know the guy, he didn’t come back three times, or he came back three times but it was for a different matter, and I didn’t commit malpractice.” Should that be the basis for a criminal prosecution? And if so, should we worry that maybe the prosecutor is going to make that decision less based on who really deserves protection and more in consideration based on whether the doctor has his ear or whether it’s somebody else who the prosecutor doesn’t know, doesn’t care about?
Bob Zadek: And my response is, of course, your column or your blog, The Volokh Conspiracy, your host publisher Reason magazine, as well as other publications, are all of them are replete with examples of prosecutorial discretion, both exercised properly and improperly. So, the fact that there is a bigger problem inherent in the criminal law system and how it operates is not particular to speech, it’s particular to the institution of criminal law.
Eugene Volokh: I think that’s a great argument, and maybe it’s right. Again, if you look at the spectrum of people who are dealing with this question, at least among law professors, I think you’re going to find a huge number that are clustered over to one end who say, “Of course criminal libel is ridiculous, and why are we even talking about it? Nobody ever gets prosecuted anymore.” And then on the other end, there’s basically no one that I know of who’s saying, “Yes, criminal libel law, let’s bring it back.” And then I’m kind of in the middle saying, “Huh, let’s think about it a little bit more. First, let’s recognize that it is actually being used and being kind of rediscovered, so we need to study what’s going on. And let’s ask, you know, does it make sense to apply it at least in certain kinds of situations?” So, I’m certainly open to your position. It’s just I don’t think that it’s clear in either direction. It’s true that prosecutorial discretion is very common, and it has its problems. And so the question is: Do we want to extend it also to a situation where we’re talking about prosecutorial discretion that is—would indeed potentially implicate a constitutional right? But also, again, at least with—I’m hoping that with robberies, there’s not a lot of prosecutorial discretion that if you can catch a robber, then this person is going to get prosecuted. Maybe it’s less so with regard to vandalism and other more minor crimes, especially in kind of very high-crime jurisdictions where we don’t have the resources. But I think in many places, pretty much anybody who does get caught having committed a crime like that is going to at least be sent through the criminal justice system even if they’re given probation or if it’s their first offense maybe they’re given pretrial diversion so if they don’t commit any more crimes the charges will be dropped. But with regard to casual lies about people—lovers about ex-lovers, angry ex-employees—there’s just so many of them and there will continue to be so many of them that we can’t really imagine even, I think, a criminal justice system that will go after more than the tiniest of fractions of them. Maybe you might think that in that kind of situation, prosecutorial discretion would be especially dangerous. But maybe not. No, I appreciate your argument. There’s a lot to be said for protecting people against this kind of unjustifiable harm, and maybe we do need the criminal justice system to do it.
Bob Zadek: And of course, implicit in the very topic of this morning’s show is the fact that what makes criminal libel a bit more special is that speech—the right to speech—is hallowed, protected by the First Amendment to the Constitution. And therefore, it’s easy for one to observe, well, when you’re talking about criminalizing constitutionally protected behavior, we have to go quite slowly because it’s constitutionally protected. And the other argument I would offer is every criminal statute, if the punishment is incarceration, well, we have a constitutionally protected right not to be put into a cage. And therefore, the very operation of criminal law, if there’s a conviction, it deprives somebody of what otherwise would be a constitutionally protected right. So, speech is a subset of all of these rights which are simply taken away if you commit a crime, and that’s the tradeoff society makes. So, I don’t know how—whether or not because speech is perceived to be special, that it means that criminal libel statutes therefore are somehow a different, generically different body of criminal law than other intentional harms inflicted on a victim by a perpetrator, and in this case the weapon of choice is speech rather than violence. Just an observation. Your response is of course welcome, but I just wanted to offer that contrary point of view.
Eugene Volokh: Yeah, I think that’s a perfectly plausible position. And again, I want to study this more, and perhaps I’ll be ultimately convinced about it. But in any event, I do think people should be considering this because people have neglected the possibility of criminal libel prosecutions and their constitutionality for decades.
The Colorado Digital Communications Commission Bill [45:54]
Bob Zadek: By all means, you should study it more, Eugene. And I’ll just ask you, just give me a call back in an hour after we finish with the show and let me know what you’ve decided. So, there’s another topic that you, for which I appreciate, brought to my attention, which I wasn’t aware of and I was rather appalled by, which is free speech related also. This topic where I’m about to introduce would not be discussed by us were it not for the advent of social media and the like. And that is, Eugene, you have called to our attention—our being those people who avidly follow your writings every single day—and you mentioned—this shocked me when I read it—this Colorado bill which is seeking to restrict hate speech, fake news, conspiracy theories and the like. Now, Eugene, we have only a couple of minutes left, but if you could share with us what’s going on and your opinion on whether it will be successful in Colorado.
Eugene Volokh: Yeah, so this is a remarkable bill, in part because it’s introduced by a pretty powerful politician in Colorado, Kerry Donovan. She’s the leader of the Colorado Senate, so kind of the legislative leader of that body. She’s also running for Congress, so she’s somebody pretty influential in Colorado. And the bill would create a state Digital Communications Commission that would, among other things, investigate and hold hearings on claims that social media platforms allow people to engage in practices that promote hate speech or disseminate fake news or conspiracy theories. And then presumably, in fact according to the bill, if the adjudicator at the hearing—some government official within this commission, not a normal judge or a normal prosecutor or certainly not a juror, but just some employee of the government—determines the respondent engaged in an unfair or discriminatory digital communication practice, then the commission may issue an order requiring them to cease and desist. So, the respondent here would be the platform, so it could issue an order to Facebook saying, “You have to block your users who engage in ‘practices that promote hate speech’ as we define it.” And by the way, nothing in the bill would define what constitutes hate speech or what constitutes fake news or what constitutes a conspiracy theory. So, just in so many ways, both procedural and substantive, it’s just a repudiation of the most basic First Amendment principles. But it looks like the leader doesn’t care, or perhaps does care and wants to do that. I mean, I presumably she’s talked to some lawyers to say, well, this is not something that’s allowed, and I take her to mean, “I want to change the law.” She wants to maybe bring up a test case that would authorize these officials to issue orders ordering platforms to block supposed hate speech or conspiracy theories. Conspiracy theories, by the way, you know, they’re in bad odor because we usually think of some kind of crackpot, but literally a conspiracy theory is just the theory that there’s a conspiracy. And often there aren’t any conspiracies, but sometimes there are. So, nothing in the bill limits it to even false conspiracy theories. So, it’s really shocking that a legislator would do that.
Bob Zadek: So, this bill would capture the Watergate investigation, it would capture the Pentagon Papers, it would capture the exposing of the practices, the spying practices of the CIA and the NSA. That’s what this bill would capture. And also, would this bill have to be limited to the information received only by citizens of the state of Colorado, or can they criminalize information on the page which is blocked in Colorado? Whatever that means and however that would work. It’s just an staggeringly impossible task for one to imagine. And I don’t think—does anybody really expect this to be anything more than just an attention—or a means to get attention to somebody who’s a candidate for higher office?
Eugene Volokh: You know, I’m pretty sure that courts would reject it. I’m not positive whether the state legislature will reject it. Again, she’s a powerful leader of the legislature, so maybe she’s got the votes there. Again, I’m sure that it’s going to get struck down. But what’s interesting is she’s trying to do this.
The Volokh Conspiracy [50:24]
Bob Zadek: Eugene, I just—I don’t mean to interrupt, but we have only a minute left. I want to be sure our friends out there know how to follow your writing. So, please tell us about The Volokh Conspiracy and how one can follow your thoughts and the thoughts of your co-bloggers on the page, please.
Eugene Volokh: Sure. So, my last name is spelled V-O-L-O-K-H. And if you search for that name, you’re going to find my blog. It’s hosted right now at the Reason magazine site, but we’re independent. By the way, we are libertarian-leaning in many ways, but we’re not doctrinally libertarian. We just try to call things as they are, as we understand them to be. So, if you just Google “Volokh Conspiracy”—and “conspiracy” is a little joke, like who would have a site called the conspiracy if you really have a conspiracy, you’d hide it rather than have it be publicized, it’s a little link to this “vast right-wing conspiracy” that Hillary Clinton had been talking about in the late ’90s. So, in any event, if you search for Volokh, again V-O-L-O-K-H, Conspiracy, you’ll find the blog and we hope that you’ll follow it, whether by going on Reason or following it on Twitter or Facebook or on Parler, and read the things that we write.
Bob Zadek: Thank you so much, Eugene, for giving us an hour of your valuable time this Sunday morning.
Eugene Volokh: Very much my pleasure. All the best. Thanks for having me.
Bob Zadek: Thank you so much.