Disinformation and the limits of yelling ‘Liar’ in a Crowded Theater
BOOK REVIEW: LIAR IN A CROWDED THEATER: FREEDOM OF SPEECH IN A WORLD OF MISINFORMATION
By Jeff Kosseff / Johns Hopkins University Press
Reviewed by: Glenn S. Gerstell
The Reviewer — Cipher Brief Expert Glenn S. Gerstell is a Principal with the Cyber Initiatives Group and Senior Adviser at the Center for Strategic & International Studies. He served as General Counsel of the National Security Agency and Central Security Service from 2015 to 2020 and writes and speaks about the intersection of technology, national security and privacy.
REVIEW — When asked at a Cipher Brief conference several years ago, to name the most serious security threat facing the United States, former Director of National Intelligence James Clapper had a short and ready answer: disinformation.
General Clapper elaborated that cyber-propelled foreign and domestic disinformation could have the pernicious effect of corroding the legitimacy of our democratic institutions, leading to loss of trust in government and ultimately to autocratic reactions.
That deep concern over the threat posed by disinformation and other lies spread and turbocharged by social media is at the heart of Liar in a Crowded Theater, a new book by Jeff Kosseff, a Professor of Cybersecurity Law at the U.S. Naval Academy.
The author of The Twenty-Six Words that Created the Internet, a highly regarded explanation of the statute that insulates social media from liability for users’ wrongful content, Kosseff sets forth his goals clearly for his new work: “This book explains why courts have set such a high bar for protecting false speech, why we should not relax those standards in the face of serious threats, and how we can address those threats without defaulting to government censorship.”
The book’s title refers of course, to the commonly held notion that one cannot falsely yell ‘fire’ in a crowded theater — stemming from Justice Oliver Wendell Holmes’ opinion in a 1919 Supreme Court case upholding some government restrictions on speech, notwithstanding the constitution’s First Amendment. Kosseff asserts that this notion is of little help in resolving the challenges of today’s disinformation: “[t]he real problem with the ‘fire in a crowded theater’ discourse is that it too often is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable.”
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The first half of the book consists of a detailed analysis of mostly First Amendment cases, in which Kosseff demonstrates how the seemingly simple “fire in a crowded theater” concept is actually more complex and, as evolved, now requires that the speech cross the threshold of “imminent incitement” to violence or wrongful acts before it can be penalized. Explaining the principal judicial cases in the area, Kosseff reaffirms the concept underlying free speech in a democracy — that in a largely unfettered marketplace of ideas, with all participants in the marketplace having equal opportunity to participate, “the one truth will prevail on the open market.” Perhaps in theory, but not in practice, in part because participants are unequally positioned and, in many cases, there is no “one truth.”
Nonetheless, as Kosseff demonstrates in discussing other judicial cases, our legal system so values truth as a foundation stone of democracy, that even merely “substantial truth” is a defense to a defamation claim, and opinions, no matter how repulsive and perhaps otherwise defamatory, are shielded. Step-by-step, Kosseff reviews legal precedents to show how courts have placed only the lightest of restrictions on false or incorrect speech, whether commercial, defamatory, political or otherwise, and he concludes the first part of his book asserting that even if restrictions were to be imposed, they would rarely be effective in curbing misinformation.
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At two-thirds of the way into the volume, the reader will have been inundated with judicial case after case calling into question the imposition of governmental restrictions or burdens on any free speech. This is, after all, a law professor’s book, very consciously aimed in part at lawyers and legislators. As a lawyer, this reviewer found the discussion illuminating and persuasive; but the lay reader might well instead wish for a simple chapter summarizing this conclusion, perhaps with a handful of examples.
In his robust defense of only limited governmental burdens on speech, Kosseff doesn’t give as much weight to the fact that in many areas we do allow restrictions. Most of that is in commercial speech – you can’t advertise liquor or cigarettes on TV for example – but there is also a wide array of restrictions in dealing with the government – you can’t lie to an FBI agent, for another example. And tort law could afford some protection against speech that causes emotional distress or that interferes with commercial contracts. Moreover, there are surely other areas remaining where Congress and state legislatures have room to legislate up to the edge of the First Amendment. As recently as 2018, the Supreme Court noted that it did not have any “doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”
The final part of the book addresses what the reader really wants – a fix for the problem. And ultimately that’s the most unsatisfying part since the strength of our desire for solutions isn’t matched by the tools available. To be fair, that’s not really the author’s fault. He summarizes his position:
— “I largely agree with the cautious skepticism of taking drastic actions. We should not discount the harms and challenges created by misinformation and disinformation, particularly as it can spread rapidly on social media. Nor do I rule out all liability for false speech; indeed, our legal system has always left the door open for defamation civil claims and criminal charges such as fraud and lying to government agents. But the bar for such liability has been and should be extraordinarily high. Rather than reflexively banning speech that we believe is false, we should look at other options to mitigate the underlying causes of false speech.” —
The problem, in essence, is that the most targeted “solutions” are precisely the ones that would encroach on the First Amendment, and Kosseff clearly doesn’t think that tradeoff is worth it. So, we are left with a handful of less effective options. He enumerates several that might help negate or curtail false speech, such “counter speech” — simply affirmatively creating and disseminating the truth, correction or the opposite opinion in the face of the false statements. But broadcasting the truth after the lie has already been told rarely convinces everyone, even assuming you could reach all who heard the lie in the first place.
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More promising is the possibility that there may be some maneuvering room – but short of coercion — for government to set the record straight with social media platforms. Just how much room is newly to be decided within the year by the Supreme Court. Kosseff correctly observes:
— “[a]t the very least, the jawboning case law suggests that the government officials should avoid exerting pressure on platforms to remove constitutionally protected content, and focus instead on effectively responding to misinformation and building public trust …. And Congress should consider passing a law that clearly defines the sort of jawboning in which government officials are prohibited from engaging.
… How should the government go about responding to what it views as misinformation? This, too, is a tricky balancing act. Even if the government is not directly prohibiting speech, its declaration of the one absolute truth could raise similar distrust.
…[The government should correct misinformation] with candor, transparency, and humility…..The government also can build confidence in the information that it provides by earning the public’s trust.” —
In an area in which he is clearly an expert, Kosseff reviews possible changes to Section 230 of the Communications Decency Act:
The current legal regime, in which the First Amendment and Section 230 give platforms substantial breathing room to take down or leave up user content, is far from perfect. Conservatives are understandably concerned about a few dominant platforms unfairly preventing them from speaking to the public, and liberals are understandably concerned about the widespread distribution of harmful but constitutionally protected user content.
He recognizes that social media platforms and other “[i]ntermediaries are key to reducing misinformation and other harmful content. They can do better, but they are only one part of an imperfect solution….[some] disclosure requirements [for social media platforms] might increase transparency and public trust. Of course, any such requirements would need to meaningfully address First Amendment concerns about chilling the platforms’ ability to moderate content. I question whether even the most transparent policies would ultimately lead to better content moderation, but they might build trust with users.”
Since the First Amendment limits directly blocking false speech in most cases, we are left with more diffuse tools. With the January 6th Capitol attack in mind, Kosseff cites a greater effort to “holding recipients accountable if they break the law, even if they say that they were motivated by lies that others had told.” Making clear that recipients of false information have some burden to vet the information on which they might otherwise react unquestionably makes sense but it’s hard to see how that’s truly going to change the disinformation landscape.
Kosseff’s final suggestion – echoed by many others including this reviewer – is to increase digital literacy and civic education. After all, when a majority of Americans can’t even name the three branches of government, it’s no wonder that many thought the Vice President had the power to change the electoral college vote in January 2021. But that’s a long-term and expensive proposition, and it too will merely blunt the effectiveness of disinformation, not cure the problem.
The unsatisfactory reality is that we don’t have a good answer to a problem we’ve created. Professor Kosseff warns us that the one solution we might naturally turn to – impinging on the historically understood scope of the First Amendment – is unwise and could lead to greater evil. So. in this regard, the book is a success – it’s a convincing case against tinkering with the First Amendment — and should be read for that purpose. But we are still left to sort through imperfect solutions to a dangerous problem.
Liar in a Crowded Theater earns an impressive 3.5 out of 4 trench coats
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