Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation

by Jeff Kosseff

Thanks to the First Amendment, Americans enjoy a rare the constitutional right to lie. And although controversial, they should continue to enjoy this right.

When commentators and politicians discuss misinformation, they often repeat five "fire in a crowded theater." Though governments can, if they choose, attempt to ban harmful lies, propaganda, misinformation, and disinformation, how effective will their efforts really be? Can they punish someone for yelling "fire" in a crowded theater—and would those lies then have any less impact? How do governments around the world respond to the spread of misinformation, and when should the US government protect the free speech of liars?

In Liar in a Crowded Theater, law professor Jeff Kosseff addresses the pervasiveness of lies, the legal protections they enjoy, the harm they cause, and how to combat them. From the COVID-19 pandemic to the 2016 and 2020 presidential elections and the January 6, 2021, insurrection on the Capitol building, Kosseff argues that even though lies can inflict huge damage, US law should continue to protect them. Liar in a Crowded Theater explores both the history of protected falsehoods and where to go from here.

Drawing on years of research and thousands of pages of court documents in dozens of cases—from Alexander Hamilton's enduring defense of free speech to Eminem's victory in a lawsuit claiming that he stretched the truth in a 1999 song—Kosseff illustrates not only why courts are reluctant to be the arbiters of truth but also why they're uniquely unsuited to that role. Rather than resorting to regulating speech and fining or jailing speakers, he proposes solutions that focus on minimizing the harms of misinformation. If we want to seriously address concerns about misinformation and other false speech, we must finally exit the crowded theater.

Genres: Politics, Nonfiction, History, Law, Philosophy, Sociology, Journalism

362 pages, Kindle Edition

Published October 24, 2023

Reviews

[Tony Leach · Rating 5 out of 5]

This should be required reading - for anyone interested in free speech - but especially for folks in trust & safety roles at large tech companies.

I really appreciated the clear legal histories showing how our (American) society has viewed how to balance speech with the harms it can cause.

[Stephen Harrison · Rating 5 out of 5]

This is a very interesting book about how and why US law protects statements that are untrue, even when they cause harm. As the title suggests, he is building off the the famous example “fire in a crowded theater” as a misleading metaphor that does not reflect US law and is usually used to justify censorship. He argues that people using this example don't understand it and limitation on free speech are, and should be, extremely rare. He explains this in a series of stories and court cases, mixed in with a few laws designed to limit false speech. This was very readable and I found his argument very convincing. The near total freedom of speech in this country is unique in the world (to my knowledge) and protecting even false speech is a sign of national strength that we should cherish. I highly recommend it if you are interested in freedom of speech protections or if you just want some insight into the theory and development of the American political system.

Kosseff's argues that limitations on free speech should be exceptionally rare because: 1) Free speech is an essential part of a free society, not just to keep an eye on government, but also in private decisions that individuals make. 2) The government is terrible at limiting false speech and any attempts to do so has a "chilling effect" on "the marketplace of ideas" that is so important to our society. People would be afraid to say or publish anything if a misstatement, however small, could make them liable. False speech is dangerous and harmful, but attempts to limit it legally would have much worse consequences and the government should never be the arbiter of truth. He argues that non-legal methods are the best way to limit false speech, primarily education on digital literacy and counter speech.



I took notes on it chapter by chapter for my own reference, but the overall argument is very straightforward. The chapters give more elaboration and depth.

Chapter 1 – Marketplace
Kosseff starts with the "marketplace of ideas", first proposed in principle by Oliver Wendell Holmes Jr, although he doesn't use the actual term. The theory behind this is that free speech is protected, including most forms of false speech, because a free society needs people to be able to articulate their thoughts so society can evaluate them and, in theory, find the best one. This is far from guaranteed to happen and it is very clear that not everyone has the same access to sell in the market, but it is better to allow false and valueless speech than to allow the government to be the arbiter or truth in a free society. The marketplace of ideas, however, does not protect all false speech, nor is it the only reason that false speech is protected.“marketplace of ideas” doctrine: trust that truth will outcompete falsehood in free discourse.

Chapter 2 – Democracy
Kosseff argues that the market place of ideas is a starting point, but doesn't cover all the protections for falsehood. Another aspect of those protections is connected, but not quite the same. In a democratic society, self-governance depends on broad protections for speech—including unpopular or false speech. Limiting that speech limits the rights of people to hear it and make decisions based on it. In essence, the government should not be the arbiter of what speech is true and what is false.

Chapter 3 – Sunlight
This chapter looks at theories that protect reporters when they report false statements. The argument is, at least partly, that citizens have a right to hear what they said, even if what they said was plainly false and malicious. It tells the public more about the person making the statements. As such, it promotes promotes transparency in government and an informed citizenry. As with the previous chapter, this idea is complementary to the marketplace of ideas.

Chapter 4 – Truth
Courts have often upheld protections for “substantially true” statements, shielding minor inaccuracies, if the gist of the statements are true. It would be virtually impossible for newspapers to report if they had to verify every detail, even if it didn't matter to the overall story. One example is a late 19th century newspaper articles that reported an officer drunk on duty and subsequently being relieved of duty. It missed a lot of details, like the name of the person with whom he got in an altercation and that he was charged with a crime when he wasn't, but it got the gist right that he was drunk in uniform and faced discipline for it. Similarly, Eminem recorded a song that recalled real life bullying for him in fourth grade, but it missed a lot of details. In both cases, the courts found in favor of the defendants because their accounts were substantially true.

Chapter 5 – Uncertainty
Saying things that might be true or are predictions of the future are protected because to make media liable would have a severe chilling effect on the exchange of ideas. There were several examples used. One was a couple who ate poisonous mushrooms, got severely sick and sued the publisher. In this case, the description of the poisonous mushroom was in the book with an accurate picture, but the judge didn't even get into that. He ruled against the plaintive because the publisher isn't required to check the accuracy of the book. Another was about a diet book that may have caused several deaths. Again, the publishers and authors were protected even if some experts said the diet was dangerous. A third was about people who drown in storms after inaccurate weather predictions. As in the beginning of the Covid pandemic, if analysis is being made in good faith, even if it proves to be wrong later on, it is protected under the First Amendment to promote a free exchange of ideas.

Chapter 6 – Opinion
Opinions are protected and don't need to be couched as opinions.

Chapter 7 – Responsibility
Receivers of information are not released from responsibility for the actions they take as a result. This includes stock information and Google maps. Listeners, watchers and readers still assume responsibility for damaging actions, even if the information is completely wrong. To do otherwise would make it almost impossible to have a free flow of ideas, hence the chilling effect that is a repeated theme of the book.

Chapter 8 – Efficacy
Government intervention is ineffective in stopping misinformation in a free society. The lines are too blurry and the process would be too time-consuming. The only way to successfully do it is to give the state enormous powers, which would almost certainly be used to stop dissent instead of misinformation. If it were able stop misinformation, it would undermine the credibility of the information it does make available.

Chapter 9 – The Scope of the Problem
Kosseff explains how Section 230 (written in the 1990s) protects online platforms from being held legally responsible for user-generated content, allowing the internet to flourish with open forums, reviews, and social media. The law was to encourage both free expression and content moderation without the threat of liability. It is now hated by both parties but for different reasons. Liberals want more speech policed while conservatives say that the moderators are biased against them.
Kosseff warns that while reforms might be necessary, gutting Section 230 could lead to less speech, not more, as platforms may over-censor or restrict user content to avoid lawsuits.

Chapter 10 – When Regulation or Liability Is Not the Answer
Kosseff shows that there are a lot of problems with trying to regulate the accuracy of speech, giving examples of several. The most telling example is about Covid-19, where the information being put out there was in constant flux, so even if something turned out to be inaccurate in retrospect, it was thought to be accurate at the time. The only major lawsuit filed with the FCC about inaccurate Covid information was about President Trump talking about unproven and unsupported treatments. If the government had the power to limit speech, it wouldn't start with the president's. A remedy to this was proposed by Senator Amy Klobuchar, which proposed that the Secretary of Health and Human Services establish what is untrue medical/health speech. Kosseff thinks giving that kind of power to an individual would be very dangerous to public health, especially when the science is unclear. This was written before RFK Jr. became the head of HHS, but the idea of him making these decisions is terrifying, giving a lot of credibility to Kosseff's argument.

Chapter 11 – When Regulation or Liability Might Be an Answer
This section acknowledges that there are some circumstances where the government can effectively limit speech for the public good. One situation is when the defamation proves to be so egregious that the offending party a) knew it was wrong or should have known. and b) meant to do injury or should have known that it would lead to injury. This is a very high bar in order to avoid the chilling effect mentioned about, but it was met when Dominion Voting Systems sued Fox News. It ended up settling for over $700 million and other Dominion cases are ongoing. Perjury or lying to a government official is also regulated because honesty and accuracy are necessary for effective government and the regulation won't have a chilling effect because it only applies to a narrow set of circumstances. Commercial fraud can also be regulated, but, again, only in narrow circumstance. The main point made in this chapter is that the 1st Amendment provides very strong protections for freedom of speech, but there are some limits.

Chapter 12 – Counterspeech and Self‑Help
Kosseff talks about extralegal remedies to false speech, so as counter speech and self-help. Counter-speech is putting out a message contradicting the original false claim. This is far from perfect and famous people have a better chance of being heard, but it is the quickest and easiest way to limit the damage of false speech, especially in the age of the internet. Self-help is action the victim can take to limit the damage, including demanding a retraction or seeking help to deal with the damage. Kosseff brings these up because legal remedies in the United States are often not available or effective, as discussed in sections I and II.

Chapter 13 – Intermediaries
This section looks at social media content moderation and fact-checking. It outlines why it is up to those platforms to do the moderation. First, the platforms are private entities and have free-speech rights to determine what is and is not on them. Second, individual users cannot invoke the first amendment against the platforms because, again, the platforms are private entities and the internet provides a lot of opportunity to get your message out. Third, Section 230 of the Communications Decency Act allows internet platforms to moderate what is on their sites and protects them from liability for offensive material. Kosseff acknowledges that this is not a great system, but it is better than any other system he has heard of, which would be the government moderating or the platforms being held liable for content so they would ban anything potentially causing liability. He suggests that the goal should be to decentralize social media so a couple of giants don't dominate the field. Then the marketplace of ideas could regulate itself.

Chapter 14 – Accountability
Kosseff argues that an important way to weaken the impact of false speech is to hold people accountable. Because of the Brandenburg v. Ohio decision, it is difficult to hold the speaker of false speech accountable legally, so we must hold the receivers of false speech accountable for their actions after they hear it. Rationality and discernment are essential for citizens in a free society and if they hear false speech and commit a crime because of it, they should be held accountable as a deference to criminal conduct.

Chapter 15 – Demand
Kosseff argues that the because the government can never effectively regulate false information, the best way to limit it is to limit the demand for it. To drive up public demand for reliable information, improvements needs to be made in educating the public on media literacy. Kosseff also argues that the government should build institutional trust, which would take years or decades and requires to fundamentally change how the government presents information.

[Samuel Perry Cook]

OK

States a lot of obvious things most people already know. Accepts the now disproved Russian Hoax lies as true, and is thus out of date.

[Andrew · Rating 3 out of 5]

Disappointed by this one. Maybe it’s my own fault, having followed Kosseff’s prior work and online presence for a while now (United States of Anonymous was a formative book for my then-budding interest in privacy). There wasn’t much new in here, and Kosseff’s wading into using political examples, although necessary, falls flat. His solutions, too, are milquetoast recitations of longstanding proposals. Perhaps I wasn’t the right audience for this, but I struggle to think of who would be: everyone who is interested in mis/disinfo, content moderation, 1A issues, already knows much of this stuff. And I’m not sure anyone who doesn’t know general 1A contours is ever picking up this book (although they probably should if only for genpop edification).

[Socraticgadfly · Rating 3 out of 5]

Good, but not quite great, and ultimately, not quite not quite great, as it slumped at the end. Let's dig in.

The best way to describe Kosseff’s thrust is by analogy with the old lawyers’ joke.

(Well, WHICH old lawyers’ joke?)

That’s the one where a person says, of Lawyer X, usually of the famous type, “Boy, they’re a jackass,” but down inside says, “If I ever need a lawyer, I want them.”

That’s the way freedom of speech is, per Kosseff, or one way to think of it: “Boy, I hate THEM getting to spew that, but I want that same level of protection myself.”

First, Kosseff says, after separating truth from legend in Holmes' "crowded theater" (which I already knew) the marketplace of ideas meme is good but not great, is not the only 1A protection, and cannot stand by itself. First, different actors have different size stalls in the marketplace. Second, the “informed citizenry” argument bolsters it. Beyond people vending ideas, people simply needs to see ideas. Re the marketplace, cites Bill Brennan that there needs to be buyers as well as sellers, and thus, restraints on speech are harmful both ways.

Then notes difficulty of “truth.” Things like predictions aren’t simple empirical statements, but they’re more than opinions. Weather forecasts an example. Next, publishers of ideas, unlike makers of products, don’t have an express liability for the ideas they publish. That would kill publishing. Then, notes that what once seems untrue might be true; Kosseff cites the lab leak theory on COVID. Ironic even as Team Biden now faces suit over its attempt to put a thumb on the social media scales, even if that’s not direct censorship.

Re Washigton Gov. Jay Inslee’s bill, 183ff, The Baffler suggests another option vis-à-vis Trump: That either the original 1870s Ku Klux Klan Acts, or a modern equivalent, would disbar him. Just one problem: the KKK Acts, all talk about a “conspiracy” of … “two or more” or similar. Whether these acts are constitutional or not (and Thomas Geoghegan acknowledges they could be ruled unconstitutional) good luck proving a conspiracy of two or more.

The “self help” chapter in part 3? Kind of naïve. And, from here on, the book is kind of "meh." The idea of retraction statements being a defense against at least punitive damages in defamation cases and that this could be extended to social media? Laughable. What’s to stop them from being pulled down again? And, does FB, Twitter, etc. want to be engaged in locking such posts? If they are, what if the defendant quote tweets to say “I repudiate this.” Fact-checker orgs like PolitiFact as self help? Per earlier chapters by Kosseff, I’ll bet it called the lab-leak theory “mostly false” in the early days of COVID. It’s been wrong plenty of other times, in framing for sure, if not actual facts. And, per other themes of Kosseff, should be called “PolitiOpinion.” Snopes is not always incredibly good either.

The next chapter? Quite timely, given SCOTUS now debating the two NetChoice (lobby arm for social media) vs states lawsuits, and re “jawboning,” the Murthy vs. Missouri scheduled for March. That said, re Section 230, I do favor amending it. Indeed, social media companies do act like publishers. Maybe not totally. But, there’s enough that’s analogous that we should carefully amend it. (I oppose starting over with new law; a big old bag of worms would be opened.) The big problem is that it’s not that Facebook, the biggest of all, can’t do more as a publisher. As anybody who’s read about the “content moderation farms” in the Philippines knows, the real issue is that Hucksterman is too damned cheap. Kosseff doesn’t address that. Nor does he engage with media and media law orgs. My link above discusses a piece by Nieman Lab, and to extend the analogy of social media to media, they talk about “monetization” as a “trigger.” In fact, other than his one reference to PolitiFact, there’s no index listings not only for Nieman, but Columbia Journalism Review, Jay Rosen (not that I totally agree with him, but he's a known standard), etc. Indeed, per my discussion of his mention of PolitiFact, there as IS NO SUCH THING as one unified Politifact. And, in the point of dropping in that last link, I realized he was going to go down to three stars after all.

As for his suggestion that perhaps things like Net Nanny should be rolled out? Facebook Purity already exists and Hucksterman does everything he can to sabotage it. Next? Kosseff overly romanticizes Mastodon. Related? Bluesky? Started within Twitter. And, Jack Dorsey is good only in comparison with Elon Musk.

Another three-star reviewer talks about much of Kosseff’s solutions as “milquetoast.” I’d have to agree. Finally, it should be noted that he's in cybersecurity law. That's probably a big deal at the Naval Academy; I'm sure that media law is not.

[Steve Fox · Rating 4 out of 5]

I give this 4 stars not because I think many of you would enjoy reading this book, but because possibly many should. Every time the response to the spread misinformation and/or disinformation results in suggestions of somehow placing greater limits on free speech, we all lose. It's just not the solution. But we must pursue solutions - especially when powerful people are able to manipulate large swaths of country into believing their lies. It is on all of us to call out lies, to correct them, to spread truth, and to continue to foster a system that allows strongly freedom of speech (and press).

[Matt Steinberg · Rating 4 out of 5]

Who knew? Turns out that plane rides only make me cry if I’m watching a terrible rom-com… not if I’m reading a dense legal history about the first amendment. I was hoping LB Sullivan and Chief Justice Brennan would get together in the end!!! :(((((

No but seriously — a lot of insanely detailed history to get through before things felt relevant. And in the meantime, it was repetitive.

That said, I did appreciate learning language and frameworks to better understand the Mis/Disinformation debate.

[John · Rating 5 out of 5]

Excellent summary of why we have the First Amendment and how dangerous it is to start tinkering with it. The solutions proposed for the "disinformation" problem are not satisfying, but this full-throated 1A defense is compelling. Could the book have been shorter and less in the weeds about SCOTUS decisions? Yes. But it's definitely worth reading as people on the right and the left have gone squishy on the First Amendment.

[Yvonne Lacy · Rating 4 out of 5]

Quite dense in reasoning, very detailed with references to legal precedents, up to date on issues (to 2022). I like the author's clear and reasonable approach to dealing with public lies: don't make hateful and lying speech illegal, but build up the tools that we already have to counter such speech - namely, the truth and common sense.

[Mina Wender · Rating 5 out of 5]

erudite and informative

Gives one the history of free speech, the reasons for such freedoms and explains how the law has evolved with a few surprises on the road. A must read before a serious discussion on imposing limitations on “ false speech”.

[Paul Picillo · Rating 4 out of 5]

Covers alot of ground

Misinformation and free speech and government power....a cautionary tale.......Mr Kossoff doesn't deny that technology can amplify lies and lies can be dangerous.......but he points to the unintended consequence of giving the government too much power.......

[James · Rating 5 out of 5]

Brilliant!

[Dakota Graham · Rating 3 out of 5]

3.5