In March 2020, Waylon Bailey posted on Facebook a joke about zombies, and how his local sheriff’s office in Forest Hill, Louisiana had orders to shoot the infected. Appealing to Brad Pitt’s character from World War Z, Bailey added the hashtag #weneedyoubradpitt. A few hours later, the sheriff’s office arrested him and charged him with terrorism under a state law that forbade spreading information with the intent of causing panic. The district court convicted Bailey and ruled that disseminating false information in the early days of the pandemic was like yelling “fire in a crowded theater.” (On appeal, the case was reversed, and, more recently, a jury awarded Bailey a sum of $205,000 in compensatory and punitive damages.)

These five little words, “fire in a crowded theater,” are invoked like a magical talisman to justify, by analogy, the regulation of false speech and lies. Just as you can’t say “fire in a crowded theater,” this [x] false speech must also be prohibited. Jeff Kosseff’s mission is to break the spell that “fire in a crowded theater” has over the mind of the public and demonstrate that it is a sloppy “placeholder justification” for the government regulation of false speech. 

There are many good reasons, Kosseff argues, to protect much false speech—even lies and misinformation—and to keep in place high standards for defamation and liability. The problem is that most people only know “the marketplace of ideas” defense, which was popularized by Justice Oliver Wendell Holmes Jr. who endorsed “free trade in ideas” in Abrams v. US (1919). The “fire in a crowded theater” and the “marketplace of ideas” pushmi-pullyu is, in part, Holmes’ legacy. Less than a year before, in Schenck v. US, Holmes argued that the distribution of pamphlets that compared the draft to involuntary servitude during war was like “shouting fire in a theatre.”

In Abrams, Holmes argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The truth, like superior products and services in the marketplace, will win out (or at least claim dominant market share) over lies. The marketplace has better mechanisms for discerning truth and correcting errors than the government. Kosseff’s complaint is not that the “marketplace of ideas” is wrong but that it is incomplete and vulnerable to persuasive criticisms from the illiberal left. If nothing else, Kosseff calls attention to how threadbare are the metaphors of our public discourse. 

The people for whom the “marketplace of ideas” metaphor is the Alpha and Omega of free speech are the sort of people who keep well-thumbed copies of On Liberty on their nightstands and who believe that John Stuart Mills’ words should be printed in red ink. This is not most people. And they are not Kosseff’s audience.

As Kosseff recognizes, the appeal to the marketplace of ideas is a weak argument for many Americans on the left. Kosseff’s audience is the center-left portion of the general public. Kosseff worries about what might happen if this is the only argument they hear for First Amendment protection for false speech. Support may drain away or soften to the point of indifference. For example, one common argument against the marketplace of ideas is that it harms women and minorities who have less clout and resources within the marketplace than privileged groups like the wealthy and white, or heterosexual men. It will be harder for them to make themselves heard and to advance counter-speech to protect themselves from falsehoods and lies. Another anti-marketplace argument is that competition is too distorted in the social media “market” where algorithms and AI can be manipulated to augment lies, falsehoods, misinformation, and disinformation. The only solution is government regulation. These arguments are powerful and persuasive on the left. 

Kosseff is right that even though the “marketplace of ideas” has value, it is only one of the reasons we must protect free speech. This is a lesson that the left and the right should hear. The book is a lowercase “c” conservative argument that reminds the left of why it used to be keenly in favor of free speech and why much false speech is free speech. 

If you care about the little guy, then you should support First Amendment protection for false speech. Advocates for regulating speech seem to have forgotten what government regulation of speech means. Repeatedly, Kosseff warns that regulated speech means penalties such as fines, liability, and prison. Defending oneself in court is expensive, time-consuming, and risky. Given the potential uncertainty of how a speech law may be applied by the courts, and the high cost of defending oneself in court, women, minorities, independent bloggers and podcasters, upstart news organizations, and other small groups without deep pockets are more vulnerable to suffering government penalties. Moreover, as Kosseff notes, regulating false speech might have the perverse effect of chilling the speech of women and minorities and so inadvertently reducing their voices. 

Reaffirming the left’s support for protecting false speech requires explaining the host of free speech fortifications established by the courts. Tacitly, Kosseff recognizes that folks on the left are more likely to invoke “fire in a crowded theater” in order to justify regulating speech. So as to not injure the amour propre of his audience, Kosseff suggests that they must not have “seriously evaluat[ed] the unintended consequences of giving the government more censorial power.” Much of the book walks the reader through the unintended consequences of lowering liability standards and introducing regulations. 

As a case in point, Kosseff describes how Amyiah Cohoon, a 16-year-old girl, found herself in trouble for making false claims on Instagram. In March 2020, Cohoon’s band class trip to Disney World was cut short due to the pandemic and they returned home to Wisconsin. Shortly thereafter, Cohoon showed symptoms associated with COVID-19 such as dry cough, fever, and eventually trouble breathing, which landed her in the emergency room twice. Tests weren’t available during her first trip to the ER so her ailment could not be confirmed, but her doctor thought COVID-19 was likely. Cohoon posted a few times to Instagram, including from the ER, claiming to have COVID-19. After her second trip to the ER, she was tested but found negative. Cohoon continued to post on Instagram that she had COVID-19. The sheriff visited the Cohoon house to ask for the posts to be removed as there were no confirmed cases in the county or be charged with disorderly conduct. Naturally, counsel for the sheriff’s office publicly argued that Cohoon’s post was like “screaming fire in a crowded movie theater” and creating a panic. The district court ruled in favor of Amyiah Cohoon on the grounds that her speech was protected by the First Amendment. 

Do we as a society want teenage girls questioned and threatened with arrest for the claims they make on Instagram? Kosseff assumes that a normal person would recoil from these consequences and judge that, on balance, the harms that the government can do are worse than whatever substantive mischief a teenage girl’s unregulated speech poses to the public. He’s probably right about a normal person.

The bulk of the book is dedicated to the more than a half dozen arguments that the courts have used to recognize First Amendment protection for false speech. This is valuable. One here is reminded of Alexis de Tocqueville’s insight that the study of laws in America is one of the best guards against imprudent majorities and the “unreflective passions of democracy”—including those who see “fire in a crowded theater” in every free speech dispute. Studying law, Tocqueville tells us, promotes the “habits of order” that provide greater circumspection and resistance to sweeping away legal forms and rule of law. Any of these chapters would make useful case studies with students. Kosseff has a knack for dramatizing the facts of a case. 

For example, Kosseff’s analysis of the suit against Eminem for his song “Brain Damage,” and the substantial truth doctrine, is a page-turner. The song describes how Eminem was bullied as a child. The bully, DeAngelo Bailey, sued because the song wasn’t wholly accurate. Even so, Eminem won the suit. The court reasoned that he was in fact bullied as a child, even if the events described in the song aren’t precisely true. Precision is too high a standard for truth. The idea behind the substantial truth doctrine is that “the harms caused by minor discrepancies do not outweigh the chilling effect on speech that would arise if speakers were held to a standard of precision.” 

One of the best chapters defends the protection of speech when the truth is uncertain. What is true, or at least prevailing opinion, may change over time as more facts and knowledge come to light. Topics related to science and health are especially subject to dispute among experts, with regular and ongoing revisions. Kosseff cites a lower court case in which the publisher of The Last Chance Diet was sued by the family of a woman who passed away allegedly as a result of following the fad diet. Expert opinions differed on the safety of the diet and the court reasoned that the publisher could not be held liable. Kosseff presents the response to the COVID-19 pandemic as a case study of uncertainty in which knowledge of the disease, its origin, its prevention, and its treatment changed over time. Kosseff is far too gentle toward public officials who often spoke with more certainty than they had any claim to. Nevertheless, our free speech precedents provide a bulwark of humility and modesty concerning truth.

What is to be done, then, about false speech? For the most part, Kosseff’s recommendations point toward rebuilding social trust. For example, instead of regulating social platforms, companies may continue to moderate content, but should be transparent about their moderation policies. Transparency, Kosseff recognizes, won’t necessarily reduce misinformation, lies, and false speech online but may go a long way toward “build[ing] trust with users.” Dwindling trust in institutions like the media and government drives demand for and willingness to accept false statements. 

Kosseff fumbles on why institutional trust is in decline. He’s really soft on the government, the media, and social media platforms that have sometimes undermined their own institutional trust. Trust does not just dissipate on its own. As he tells it, public officials such as Alejandro Mayorkas and Anthony Fauci are themselves the hapless victims of shuckydarn events. 

Opposition to the Department of Homeland Security’s proposed Disinformation Governance Board was fueled by conspiracy theorists and Republicans too eager to score political points, who called it an Orwellian Ministry of Truth. It seems like Kosseff should understand the issues such a body might raise, but instead, he attributes the controversy to a “botched rollout” in which there was no evidence that the board had any intentions to censor speech. There was no evidence, because, as Kosseff points out, Mayorkas never did explain clearly what the board would do. Since Mayorkas never said that the board would censor speech, then concerns about censorship were unfounded. He is puzzled—nay mystified—that Mayorkas stumbled during softball interviews to squash these fears and explain exactly the board’s objectives. Yet, the word “Governance” in the title, Kosseff admits, was a poor choice that could have led some people to think that the board might, you know, govern.

Although Kosseff downplays the idea that public officials on the left might abuse their power if empowered to define and regulate fake news and misinformation, he correctly observes that one predictable consequence is that the definition of false speech would shift according to the partisan interests of the administration, which would result in less trust, not more.

Likewise, with Anthony Fauci, Kosseff mildly observes that he “seemed to lose patience with what he believed was misinformation about public health precautions and vaccines.” When Fauci identified himself with “science,” this was an unfortunate choice of words born of honest frustration, not a revealing glimpse into Fauci’s hubris and sense of world-historical importance. Institutions are not supposed to be, as Yuval Levin likes to remind us, platforms for the egos of their occupants but formative to serve the ends and purposes of the institution. To his credit, Kosseff says that the government should have embraced being “candid about what was both known and unknown” during the pandemic. 

Kosseff may not be sensitive to some of the concerns conservative readers may have, but he is admirably earnest about the need to maintain strong guardrails for the protection of false speech. False speech, as Justice Holmes realized, is the most vulnerable area of speech to government regulation. Kosseff’s book reminds readers on the left and the right to cherish and defend the many robust protections for false speech as free speech embodied in the court’s jurisprudence.