Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation, by Jeff Kosseff (Johns Hopkins University Press, 368 pp., $29.95)
A few days after Hamas’s October 7 terrorist attack on Israel, Thierry Breton, the European Commission’s most imperious official, sent a letter to Elon Musk, owner of X, the social-media service formerly known as Twitter. “We have indications,” Breton announced, “that your platform is being used to disseminate illegal content.” By “illegal content,” he meant speech that the government deemed false.
“To our technocrats’ dismay, [America] isn’t Europe, where the state can dictate allowable speech.” Those words, from columnist David Harsanyi, appear late in law professor Jeff Kosseff’s instructive new book, Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation. Kosseff makes a convincing case for America’s (until now) hands-off approach.
Common is the pundit or politician who says, “I strongly believe in the First Amendment, but . . . ,” and then uses the second half of the sentence to embarrass the first. Quite often what follows that telling “but” is “you can’t shout fire in a crowded theater.” It is this trope, a piece of doublespeak, around which Kosseff constructs his argument.
“Fire in a crowded theater” does not come from a legal case involving fires or theaters. It comes, rather, from Schenck v. United States (1919), a case about a socialist arrested during World War I for peacefully protesting the military draft. The Supreme Court upheld his conviction. Along the way, Justice Oliver Wendell Holmes Jr. wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This imaginary situation was used to show that the First Amendment retreats before a “clear and present danger” of speech “bring[ing] about the substantive evils that Congress has a right to prevent.”
The Court later tightened this test substantially, ruling in Brandenburg v. Ohio (1969) that, to lose First Amendment protection, dangerous speech must both aim at producing, and be likely to produce, imminent lawless action. Yet the flimsy “fire in a crowded theater” metaphor lives on. As Kosseff observes, the line “is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable.” For the would-be censor, the concept is wonderfully plastic: almost any speech can stand in for the shout in the theater.
Recent examples include, first, Senator Amy Klobuchar (D-MN) introducing a bill, the Health Misinformation Act, designed to force social media platforms to remove more content related to the Covid-19 pandemic. “If you yell fire in a crowded theater, that’s not protected speech,” she explained. “If the theater [then] decides to use speakers [to] broadcast what the person is saying or whatever misinformation they’re putting out there . . . they’d be sued.”
Another came when, while promoting Covid-19 vaccinations on NPR, Francis Collins, the director of the National Institutes of Health, said: “Isn’t [spreading vaccine misinformation] like yelling fire in a crowded theater? Are you really allowed to do that without some consequences?” And a third came following last year’s mass shooting in Buffalo, New York, when Senator Kirsten Gillibrand (D-NY) appeared on MSNBC. Asked whether the First Amendment prevents Congress from regulating online speech, she responded: “You can’t yell fire in a theater. . . . There’s many ways you can abrogate speech rights.” (“You don’t have to regulate speech,” Gillibrand claimed during the interview; “you can regulate misinformation.” This idea is popular on the post-free-speech Left; but it’s “wrong,” Kosseff points out, because “misinformation is speech.”)
The First Amendment protects many forms of falsehood, and Kosseff’s goal is to justify and defend those protections. On the surface, that might seem a difficult task. (Who’s in favor of lying?) As Kosseff shows, however, the case for censorship is riddled with faulty premises. Those who would regulate false speech assume that the government is well-equipped to mediate truth. They assume that the power to silence dissent will not be abused. They assume that the public will accept the state’s pronouncements of fact at face value. Beyond all, they assume that censorship works—that it doesn’t tend to backfire.
None of these assumptions escapes Kosseff’s Crowded Theater unscathed. The book’s evidence against them is abundant and well-organized. “Attacks on me, quite frankly, are attacks on science,” said Anthony Fauci, even as the government line on various aspects of Covid-19 policy “evolved.” So inept was the Department of Homeland Security’s rollout of a “Disinformation Governance Board,” it seemed like an attempt to create public distrust. Foreign regimes habitually use the concept of “fake news” as cover for arresting journalists and political opponents.
Precisely by “strictly regulat[ing] ‘misinformation,’” Kosseff submits, a state gives “the recipients of the government-sanctioned ‘truth’ . . . reason to doubt its veracity.” In his view, this dynamic arises even when the state tries “merely” to serve as the national fact-checker. “By arrogantly declaring itself the arbiter of the one official truth, the government could risk driving people into baseless conspiracy theories.” On these shores, at least, it is not the government’s job to protect citizens from misleading or obnoxious information. Scurrilous pamphleteering and sensational reporting are as old as the country. So are loose accusations of corruption and paranoid claims about conspiracies and cabals. And so, for that matter, are elite concerns about lies polluting the minds of a gullible peasantry.
The powerful individuals who find the “fire in a crowded theater” line so appealing are, at root, reactionaries. They embody Old World values our Founders overthrew as they ejected the king’s agents and abolished titles of nobility. Kosseff quotes jurist James Kent, writing in 1804: “In England, they have never taken notice of the press . . . or of the rights of the subject, whereas the people of this country have always classed the freedom of the press among their fundamental rights.” Here is Justice Robert Jackson, writing nearly 150 years later: “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” To this day, the legal risks of criticizing the high and mighty are greater in the United Kingdom than in the United States.
Elite institutions and legacy media have a vested interest in being alarmed about information flows outside their control. Meantime, researchers can’t even agree on what “misinformation” and “disinformation” mean. Kosseff invokes journalist Joe Bernstein, a well-known “skeptic of Big Disinfo,” and his verdict that the terms are often used “simply [as] jargon for ‘things I disagree with.’” Kosseff does not object to outlawing fraud, defamation, false advertising, and lying to government agents. But “rather than reflexively banning” new swathes of “speech that we believe [are] false,” he contends, “we should look at other options to mitigate the underlying causes of false speech.”
It’s true that untruths can circulate rapidly on social media. Stay calm, Kosseff insists. “America has long worried about the effect of new technology in distributing false information.” (He cites an 1858 New York Times article on “the dangers of the new transatlantic telegraph.”) A robust marketplace of ideas and ample avenues for counter-speech remain the quintessential, if highly imperfect, correctives. A more candid and humble government—one more ready to “acknowledg[e] what [it] does not know”—would help matters. So, conceivably, would a greater focus in the schools on civics and media literacy.
“Rather than merely declaring what is true and false,” Kosseff proposes, “the government can provide citizens with the tools to make informed judgments about the veracity of information.” But at a time when the contents of children’s libraries spark intense disputes, and math is denounced as racist, it is perhaps naive to expect new educational programs to remain nonpartisan. Lawmakers can’t seem to mention such plans without pushing their politics in the same breath—a warning sign of how easily these efforts can be corrupted. But Kosseff is not wrong to treat the critical faculties of the average person, and not the paternalistic instincts of the ruling bureaucrat, as the best defense against misinformation.
In a self-governing republic, there is no other way. Even as technology advances and information proliferates—Kosseff, for one, is sanguine about the rise of AI-generated speech—the evaluation of ideas remains the people’s prerogative, both because that’s the system set forth in the Constitution and because no alternative system is likely to endure. “A censor may maintain, he can never restore, the morals of a state,” Gibbon wrote in The History of the Decline and Fall of the Roman Empire. “It is impossible for such a magistrate to exert his authority with benefit, or even with effect, unless he is supported by a quick sense of honor and virtue in the minds of the people.”
Kosseff has a knack for publishing timely books. His treatise on Section 230 of the Communications Decency Act, The Twenty-Six Words That Created the Internet, emerged just as that law’s liability shield for online intermediaries rose to national attention. His next volume, The United States of Anonymous, was released just as states started to consider online age (and, as a likely side effect, identity) verification laws.
This book fits the pattern. The Supreme Court recently agreed to hear Murthy v. Missouri, in which the plaintiffs challenge the federal government’s pervasive, and largely hidden, campaign to pressure social media platforms to remove speech, mainly but by no means exclusively about Covid-19, deemed false (by government officials). The Court will also soon hear NetChoice v. Paxton and Moody v. NetChoice, in which the plaintiffs challenge a pair of state laws that require platforms to carry certain speech deemed false (by the platforms). In addition, we face the prosecutions of Donald Trump for election interference, in which, as famed First Amendment lawyer Floyd Abrams notes, the two sides dispute whether “the falsehoods of the president were part of a general effort to steal the election.”
And of course, progressive politicians and intellectuals will keep pushing for legal restrictions on misinformation—speech that they claim is false. Jeff Kosseff’s delightful book is not going to stop them. But maybe they’ll finally quit shouting about shouting fire in a crowded theater.