People have always spread false information. But now that it spreads so easily and quickly online, the stakes seem higher than ever. Just look at all the damage done by false claims about the COVID vaccines and the 2020 election.
Should the US government clamp down on misinformation by placing new restrictions on free speech — as the European Union has done? According to a recent Pew Research Center poll, American sensibilities have shifted between 2018 and today. The survey found that more Americans now would like to see the government limit the publication of false claims “even if it limits freedom of information.”
Advertisement
Legal scholar Jeff Kosseff thinks a government crackdown on misinformation is a very bad idea. In his new book, “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation,” he makes the case that the courts have improved our country by gradually strengthening legal protections for false speech — a principle that should hold even though new technologies are changing how information looks, is created, and flows.
Kosseff has long been defending free speech. In “The Twenty-Six Words That Created the Internet” (2019), he explained the benefits of the free speech protections offered in Section 230 of the Communications Decency Act, which protects companies from being liable for misinformation shared on their platforms. And he contended that anonymous speech deserves better protection in “The United States of Anonymous: How the First Amendment Shaped Online Speech” (2022).
Kosseff is an associate professor of cybersecurity law in the United States Naval Academy’s Cyber Science Department. His views do not represent those of the Naval Academy, the Navy, or the Defense Department. Our conversation has been condensed and edited.
What motivated you to write this book?
There’s been a lot of concern about misinformation. What got my attention was this steady drumbeat of proposals to regulate speech, send people to prison, or allow people to sue more easily. Having studied free speech and been a journalist for a long time, I was very concerned that many of them are short-sighted, damaging, and ineffective.
Advertisement
Often, you’ll hear people who want to punish misinformation say the Supreme Court prohibits shouting “Fire” in a crowded theater. Why are they wrong?
There’s a whole lot wrong with that. There’s this misconception that the Supreme Court actually dealt with a case involving someone who shouted “Fire” in a crowded theater. Instead, the Supreme Court used it in 1919 as a hypothetical example to justify prosecuting someone who distributed pamphlets criticizing the military draft.
The real problem with the phrase is that it’s used as shorthand to justify regulating whatever speech people don’t like. The Supreme Court has said you can’t do that — that only narrow categories of speech aren’t protected by the First Amendment. This is a very high bar, and the phrase minimizes the amazing free speech achievements that lawyers and judges have worked so hard for over the past century.
Why does the First Amendment protect some false speech?
There are many reasons. For example, it gives breathing room for true speech in many cases when you’re trying to get it right. The courts have recognized that if you’re writing about a powerful politician or businessperson who likes to sue, you need to give people space to speak, even if they don’t get it 100 percent right.
Advertisement
For the really bad cases of misinformation, we’re often not dealing with completely rational actors. Even if they intentionally distribute false speech, legal penalties might not deter them. And yet sanctions might silence those with good intentions.
Also, our understanding of what is true can evolve with more debate — and you don’t allow knowledge to grow if you threaten people with prosecution. At the beginning of the pandemic, public health authorities said there was no possible way that COVID-19 is airborne and people shouldn’t wear masks. As they gained more knowledge, their stance changed. Imagine what would have happened if saying that COVID is airborne landed you in prison or got you a government fine.
Should the government force social media companies to do a better job of stopping users from posting medical misinformation during a public health crisis?
I think that’s very dangerous because it gives the government a lot of power. In 2021, two senators, Amy Klobuchar and Ben Ray Luján, proposed a bill that would have increased the liability of platforms for algorithmically promoting health misinformation. So you look in the bill and you say, OK, what’s health misinformation? Basically, it’s whatever the secretary of Health and Human Services determines it to be. This may be well-intentioned, but it grants too much discretion to one government official. Fortunately, the bill didn’t get a hearing. But it’s scary that proposals like it exist.
Advertisement
Should medical professionals face sanctions if they spread false or misleading information during a public health crisis?
That’s a tougher question because it depends on the context. Professionals are held to certain standards. But it would be very dangerous to impose penalties for a doctor going on social media and saying something that’s out of line with public health experts. If you start policing skepticism of the medical establishment, you undermine trust in it.
Should it be illegal for politicians and political candidates to lie about elections?
The Supreme Court set a very high bar for speech that imminently incites lawless actions. It is very difficult to meet this standard, and it shouldn’t be any different for politicians or the lies they tell about elections.
Some public officials have misinterpreted the law. In 2022, Washington Governor Jay Inslee supported a bill that would have led to up to a year in jail for politicians or political candidates who lied about election administration. The proposal went beyond the imminent incitement standard, and thankfully, the bill didn’t get through committee.
Inslee announced his support for the bill exactly one year after [the Capitol Hill riot on] Jan. 6, 2021. Fortunately, our legal system recognizes we need healthy discussion and debate, but it also puts some of the responsibility for misinformation on the recipients. The judges in cases that prosecuted people who stormed the Capitol recognized the defendants believed misinformation coming from very prominent sources. But they still sentenced them to prison time or imposed other sanctions because the law holds people accountable for how they react to misinformation.
Advertisement
Why have you become increasingly concerned about the freedom of the press?
Justices Thomas and Gorsuch are concerned about what they view as irresponsible journalism that lacks the rigorous standards of the past. They also worry about falsehoods that spread rapidly on the internet. To address these problems, they want to examine whether it should be easier for the subjects of misinformation to file defamation lawsuits. Both have called for their colleagues to revisit New York Times v. Sullivan, the 1964 Supreme Court precedent that sets a higher bar for defamation claims filed by public officials. They believe that if people were more likely to face legal consequences for false speech, they would be less likely to spread misinformation.
I seriously doubt that such a move would meaningfully reduce misinformation, because journalists who cover politicians already take reasonable steps to verify their facts, and some of the worst misinformation comes from bad actors in other countries who aren’t very concerned about defamation lawsuits. But overturning “Sullivan” would make it much easier for the rich and powerful to stifle criticism and investigative journalism by threatening weak defamation lawsuits. The mere threat of a costly lawsuit — even one unlikely to ultimately succeed — would discourage many journalists and social media commentators from ever speaking.
You recommend the US learn from Finland and do a better job of teaching media literacy. Since education has become so polarized, how will this help?
I’m not saying that a school should say that a particular claim about COVID or politics is misinformation. I’m recommending a more politically neutral approach of teaching people how to conduct research, like validating or invalidating claims they see on social media. The more you focus on giving people tools they can use to reach their own judgments, the more successful the strategy will be. To be clear, this is just one way to chip away at the problem. There’s no perfect solution.
Evan Selinger is a professor of philosophy at the Rochester Institute of Technology and an affiliate scholar at Northeastern University’s Center for Law, Innovation, and Creativity.