Is Section 230 a Problem?

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0:00:07.3 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

0:00:09.3 Aaron Ross Powell: And I’m Aaron Powell.

0:00:11.0 Trevor Burrus: Joining us today is Jeff Kosseff, he’s an associate professor of cyber security law in the United States Naval Academy Cyber Science Department. He is the author of 2019’s The Twenty Six Words That Created the Internet. Welcome to Free Thoughts, Jeff.

0:00:24.0 Jeff Kosseff: Thanks for having me.

0:00:25.7 Trevor Burrus: So the obvious question is, your book title ask that question, What are the 26 words that created the Internet and were they spoken by Al Gore?

0:00:34.4 Jeff Kosseff: They were not. Although Al Gore does appear in the first paragraph of my book, he has nothing to do with Section 230. And the most important part of Section 230 is, No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

0:00:56.9 Aaron Ross Powell: I’m curious because you start your book, early on your book, you discuss a case of obscene material at a bookstore and a Supreme Court decision regarding that. And that makes me wonder how necessary the Section 230, specifically applying to the Internet, was to creating this modern Internet in the sense of we… Libertarians like Section 230 because it enables people to have robust protection for their speech online, to be able to express themselves without the people who are giving them the platforms for it under constant fear of being sued.

0:01:38.2 Aaron Ross Powell: And so we end up with this dynamic Internet with lots of cool corners in a way that we wouldn’t necessarily get. But this case that you talk about for the bookstore where a guy was inadvertently selling what was determined to be an obscene book and was protected against conviction for it, seems like that we already had a regime that protected exactly the stuff that we like about the Internet. But prior to the Internet in the ’90s, we had robust publishing, lots of views expressed, weird little zines, bookstores selling all kinds of things. So why do we need 230 when the Internet is just an electronic version of distributing text?

0:02:25.0 Jeff Kosseff: Well, so it’s a little more than that. And the analogies often really fall flat when… And I mean here, analogies not just to newsstands and bookstores but also to cable, cable TV providers or TV stations, and none of them completely work because the Internet is fundamentally a different medium in terms of the multilateral way of communicating. And also the vast amount of content is just not comparable to even what a bookstore or a zine publisher would be providing. And there are really two main issues. The first one is that… And I mean, this is what actually motivated Section 230 was a 1995 New York state court ruling, that I think was very wrongly decided, but it said that because Prodigy, this early online service, engaged in more extensive moderation, that it wasn’t protected like a bookstore would be protected. It was just as liable as a newspaper for its user content.

0:03:33.5 Jeff Kosseff: So that’s one issue, and I would hope the courts would have sorted that out, but we don’t know, and there’s no way of knowing now because we’ve had Section 230 since then pretty much. But the other issue is just… Let’s say that a court decision was never issued, and so online platforms received the same protection that a bookstore or a newsstand receives under the common law for third party content, so that is, you’re liable if you know or have a reason to know of the defamation or other illegality of the content. So that sounds like, “Okay, well, that’s pretty fair. Bookstores can handle it. Why can’t a platform?” Well, you put that into practice. And the example that I would give is Yelp. So Yelp, I think… And people say, “Oh, well, it’s just about where people can go and complain.”

0:04:30.6 Jeff Kosseff: But I think Yelp and services like that have empowered individuals and consumers like nothing that we’ve seen before, no other communication medium, because it gives them a voice. And if they are ripped off by a business or something else bad happens, they can tell other people and it empowers them and also potential future customers of the business. Now you think about how Yelp would operate in a world without 230 in just a traditional distributor bookstore context. So a customer goes to a mechanic and they think the mechanic ripped them off. They post something on Yelp saying, “The mechanic said that they would charge me $500, they charged $1000 and my car didn’t work.” So they post that, the mechanic doesn’t like that very much so the mechanic calls Yelp and says, “Hey, this is false.”

0:05:30.0 Jeff Kosseff: Now Yelp has some choices. At this point, Yelp is still not gonna be liable if it takes it down and there’s questions about how this would work in practice, but there’s a good chance that if Yelp does not take the review down upon getting the complaint, then it might end up having to defend a defamation lawsuit, and you could say, “Well, Yelp could just investigate and find out if the mechanic ripped them off.” Theoretically they could, but you think about the millions and millions of reviews they host, and it’s just not possible from a business perspective for them to be able to engage in those review, investigations of, “Did the person rip the customer off? Or Was the food cold when it was served?”

0:06:17.4 Jeff Kosseff: And I don’t wanna speak for Yelp, and they actually have a very thoughtful legal team that does this, but generally what they do, at least their current policy, is that they don’t adjudicate factual disputes. So they’ll take down certain things if they violate people’s privacy or have threats or things like that, but they’re not gonna get involved in disputing facts. Without 230, I don’t see how a reasonable lawyer would be able to say, “Oh, yeah, just keep it up, and let’s just take the risk of having to spend a lot of money defending a defamation lawsuit, even if it’s a bogus suit.” So that’s the sort of thing that 230 allows, that without 230 it would be much more difficult to have that sort of platform with that business model on the Internet.

0:07:13.6 Trevor Burrus: One of the things that you hear a lot about 230 is the situation you described for these big tech things like Yelp and Facebook and Twitter, etcetera. This immunity is a subsidy. Is that one reasonable way of looking at it, that it is a kind of subsidy?

0:07:32.4 Jeff Kosseff: Well, subsidizing whom? You said big tech, I would actually say it… [chuckle] This is actually somewhat proven by the advertisements I see everywhere from Facebook these days saying, “We need to rethink how we regulate the Internet.” It’s definitely fundamental to the business models of a lot of platforms. I think it was essential in Facebook and Google being able to grow to where they are today. I think it’s also equally essential, or far more essential now for the smaller platforms that want to at least try to compete against them, which is why you’re not seeing the Yelps of the world or the Glassdoors of the world come out and say, “Hey, we also think that we need to rethink how we regulate the Internet.” No, you’re seeing Facebook do that, and there’s a good reason for that.

0:08:36.1 Jeff Kosseff: Section 230 helps the platforms that are trying to provide alternative venues on the Internet. I was a reporter in DC for a while, I practiced law in DC, I’ve been in DC for a while that I know that typically the biggest businesses are able to influence the regulations that they’re subject to. So that’s my pessimistic way of saying, I don’t think that it necessarily is just this Facebook subsidy, and I really worry about what competition is gonna look like if we get rid of 230, and then basically we have some standard of care that somehow looks like exactly what Facebook is doing.

0:09:28.2 Aaron Ross Powell: It’s interesting that we’ve seen over the last… Especially since Trump was elected, but it seems to ramp up a fair amount lately that both the left and the right are mad about Section 230, and they’re mad at the big platforms, which are the ones that they focus on, having this degree of protection. But the left is about permissiveness, so it’s about the stuff that you have been talking about, which is there are things that the platforms can have that the left thinks they ought to be able to be sued over or that they ought to legally have to take down, whether that’s misinformation, typically it’s misinformation. The right, on the other hand, seems to be upset that 230 allows platforms to take things down and that they don’t like that they’re getting kicked off of platforms for saying racist things or trolling.

0:10:23.3 Aaron Ross Powell: Is Section 230 allow platforms to basically be too much in control? Have we gone too far in the other direction, and that they now just have legal protection to do essentially whatever they want to restrict or allow speech however they want without consequence? And that that’s another almost subsidy that they should have to bear some of the legal blame for the decisions that they make?

0:10:52.1 Jeff Kosseff: Every day I speak with people on the Hill from both sides about what their ideas are for Section 230 reform, and I’ve actually just this morning, I have spoken with people on both sides of that debate. And there’s very little consensus as to what we should be doing to improve the Internet, because we have very different visions of what the Internet should look like. Now, whether Section 230 gives platforms too much discretion, a lot of that discretion is provided by the First Amendment. This is going back to cases in the 1970s involving striking down a law that tried to require a newspaper’s letter to the editor page to print certain letters, and the court said, “No, you can’t do that.”

0:11:53.2 Jeff Kosseff: Now, obviously, the difference is that what newspapers do not get for their print edition, they do for their websites, but for their print edition they don’t get the same protections that platforms get, and you might say, “Well, that’s unfair.” And I see that point, but you also think about the vast amount of content that the platforms allow. If you were to subject them to the same liability standards of a newspaper, that’s just not something that’s possible. And yeah, I think the platforms have… And when I say the platforms, right now I’ll be talking about the biggest social media platforms, even though again I don’t think that 230 matters nearly as much for them as it does for like a Glassdoor or a Yelp.

0:12:50.2 Jeff Kosseff: But for the biggest platforms, yeah, over the years they’ve gotten very arrogant. My other area of research is cyber security, and I can confidently say I’ve had more success getting information from the NSA than I have from some of the big platforms. I think they’ve started to change in the past few years as they’ve realized the scrutiny that they’re under. I think they were so used to being the golden children of American capitalism for so long that they thought, “Oh, well, we don’t really have to explain what we do or how we do it.” But I don’t necessarily think that is a Section 230 problem. I think if you got rid of Section 230 tomorrow I think that you would see a lot more restriction of content.

0:13:46.7 Jeff Kosseff: And I think that if you have a judge who is faithfully applying the First Amendment precedent that we have, which is not a given, but if you do, I don’t think that there would be more liability for saying, “We’re just not gonna run any user content that talks about anything that might remotely expose us to liability, because we can’t take the risk.” I don’t see them being held liable for that. Now, some people disagree with me, but I think that would take a radical reshaping of First Amendment precedent to get there.

0:14:26.3 Trevor Burrus: Some have argued, including many senators, within the 230 there’s a good faith or neutrality requirement in terms of their moderation decisions. Is that a viable argument?

0:14:37.0 Jeff Kosseff: No. [chuckle] Well, there are two separate things, there’s C1 and C2. C1 is the 26 words that I talked about, and then C2 provides an additional protection saying that platforms also are not liable for good faith efforts to restrict access to lewd, lascivious, obscene, filthy otherwise objectionable content. But first, those are two separate protections, and the vast majority of the litigation under Section 230, even for takedown decisions, has been decided under C1, the 26 words. But even for C1 or C2, you also mention neutrality. There is nothing in Section 230 that requires, suggests, hints at neutrality. It’s not conditioned on neutrality, there’s this whole argument that’s developed saying, “Section 230 only applies to neutral platforms, so you have to choose between being a publisher or a platform.” That’s not what it says in the least.

0:15:50.4 Jeff Kosseff: When you look at the history of Section 230, the entire reason that it was passed was because the Congress wanted to protect an online service that was being penalized because it was exercising too much discretion over user content. Now whether it should, I think there would be First Amendment issues, but Congress could always make that decision to place conditions on it. But that’s a different question than whether it currently does, and I think anyone who is just making a reasonable attempt to read the statute and its legislative history will acknowledge that it does not say that 230 is conditioned on being a neutral platform.

0:16:40.3 Aaron Ross Powell: How much of the debate and the vitriol around this and the crazy calls from politicians on both sides to break the Internet are just a problem of bigness? So you’ve talked about how 230, really, the main people it’s protecting are the smaller platforms, but all of the ire is directed against the big platforms. Josh Hawley is not mad at Yelp, he’s mad at Facebook and Twitter. And it’s interesting because 230 was born out of a time when the way you got on the Internet was to use a big platform, CompuServe, Prodigy, AOL. And then we went through a period where the Internet was much more decentralized, you had your local ISP, and you connected to a lot of services. And now we’ve moved back to one where for a lot of people the Internet simply means Facebook and Google and Twitter.

0:17:40.9 Aaron Ross Powell: But then, it does seem like there is a concern that if you grant… It’s one thing to grant thousands of small platforms the ability to discriminate against content, but if you have two or three very large platforms upon which basically all content people are gonna see is hosted, and they have the ability to discriminate willy-​nilly, they can genuinely exclude significant amount of viewpoints or push the Internet in a less free and open direction. And so if this sine wave of centralization and decentralization goes back in the direction of decentralization, would that make a lot of these conversations somewhat moot, because people wouldn’t be as worried much about Facebook cutting off their access to the world?

0:18:38.0 Jeff Kosseff: I think so. I think that the… First, I think that the idea… There is this idea that 230 reform could fix everything that people say is wrong with Facebook. And I was just in a conversation… This isn’t just one conversation, this is talks that I have routinely with a Hill staffer who was really angry about something that a social media company was doing with user data. And I shared that concern, and I said, “Okay, well, this is why [chuckle] it’s a concern that the United States still does not have a national privacy or a cyber security law when… And we’re relying on the states to pass these cut-​rate terrible versions of it, because Congress still hasn’t done that.” But that’s a privacy law issue, that’s… The concerns that a lot of people have about Facebook and the other big… And Google have to do with how they’re using user data.

0:19:42.0 Jeff Kosseff: Now, obviously there are also concerns about their… About how big they are and what they could do for user speech, which are legitimate. But I don’t… So I suppose if they were smaller, perhaps there would be less discussion about Section 230, but I just I feel like the debate is so off the rails. It’s not like there’s just one little logical fallacy in the current debate about tech policy. This is like, I do not like Facebook for these reasons, and most of them are valid so we need to change 230, and I’m so used to that right now that I don’t know if any one change will really affect that. I’ll say, for me personally, I live in Arlington, Virginia, and we have a great local news website called arl​now​.com, which has… It’s really replaced the Washington Post in a lot of ways, but what I find the most useful are the user comments.

0:20:53.0 Jeff Kosseff: Perhaps, the people in Arlington have more time on their hands than elsewhere, but they have really thoughtful but often heated discussions, and that… When we talk about the effect on… That’s a platform, and people always think, “Oh, big tech, it’s Twitter, it’s Facebook.” No. These local news sites, which really rely on often anonymous and pseudonymous commenters, I don’t see… When I read that, my mind always goes to legal issues and I always think, “I have no idea how they would allow comments if it wasn’t for Section 230,” but we don’t really get that in the debate, what we get is Facebook has done something else that makes people really creeped out about privacy when that has nothing to do with Section 230.

0:21:47.9 Trevor Burrus: I wanna ask a little bit about that. I think that spins people’s minds a little bit when you say… When people say, “Facebook has First Amendment rights.” You talked about the Letter to the Editor newspaper case, or that Twitter has First Amendment rights. What is the nature of those rights? It’s a strange thing, I think, for a lot of people to hear.

0:22:07.6 Jeff Kosseff: Something that should be fairly fundamental to basic thinking about the First Amendment is that the government cannot commandeer private property and say, “Okay, you must provide these viewpoints and you must allow this content.” Now, there are certain cases where we have things like broadcast regulation, which the Supreme Court has addressed and carved out. We have common carriers. I disagree strongly with people who would say that a website is a common carrier, but there’s reasonable disagreements about that. But the idea that we don’t want the government getting involved, no matter how well-​intentioned it is, and this comes up on both sides.

0:23:02.9 Jeff Kosseff: There was a bill that was proposed, both in terms of the government trying to pressure companies to carry speech and also not to. There was a bill, which I would say is one of the scariest Section 230 proposals that I’ve seen that was proposed over the summer, which basically said, “Okay, well, we’re really concerned about medical misinformation,” which I’m very concerned about, and I think the platforms they’ve done a lot.

0:23:32.5 Jeff Kosseff: I think they should have been more aggressive earlier on in the pandemic, which is the right thing to do, but what the bill says is basically Section 230 won’t apply to algorithmic promotion of medical misinformation during a time of a national health crisis. But the kicker is that the HHS secretary gets to define what is medical misinformation. And perhaps people think, “Okay, well, we trust the current… ” And many people don’t, but I think that the people who are proposing this generally trust the current administration, which is great, but what I try to talk to them about is, “Okay, well, let’s think five years into the future, when HHS secretary… ” I won’t give her a crackpot name [chuckle] but let’s just say that there’s some kind of doctor…

0:24:24.7 Trevor Burrus: Dr. Nick. Dr. Nick from The Simpsons.

0:24:26.6 Jeff Kosseff: Yeah, someone who believes that vaccines have micro-​chips and all sorts of stuff like that. That’s fundamental to why the First Amendment protects both the ability for private companies to be able to decide what speech they carry and what speech they don’t carry, and obviously, there are always exceptions. There’s been one Supreme Court Justice in US history who believes the First Amendment’s absolute and he’s not alive anymore, so I think that that battle has been fought and lost, but we are very careful about these exceptions, and what’s been really concerning to me in this online speech debate over the past few years is that people on both sides seem to be so willing to compromise what I think are really core values of free speech in our country that set us apart from so much of the rest of the world.

0:25:28.7 Jeff Kosseff: And yeah, there are some bad facts on both sides. I disagree with some of the big social media platforms’ decisions in terms of blocking certain stories. I think those were wrong, and I’m generally in favor of more ideas in the marketplace, but not flooding it. [chuckle] And I think they went too far for my taste, but that’s different than saying, “Okay, well, let the government come in and make this decision because… ” Whoever the government is is gonna change, but your policies that you’ve advocated for could stay the same, and it’s hard to go back from that.

0:26:17.4 Trevor Burrus: I wanna ask a little bit more about the common carrier thing because there are people… At my world of libertarian legal scholarship, there are people in that world who are pursuing and somewhat endorsing this idea that we can take provisions originally designed for railroads, this, the idea that there was one railroad lying between Smithville and Jonesburg, and therefore the railroad cannot keep people off that line and apply them to these internet companies. You said you really disagree with it, but I’d like you to expound on why that’s such a difficult comparison.

0:26:55.0 Jeff Kosseff: Yeah, I think that the more common… Sorry for the pun, but the more frequent comparison is for phone companies and also to a lesser extent, this is a little different, cable companies. And the difference here, first, is that for… I think the most fundamental difference is that for common carriers, the nature of the speech is not part of the product, and the nature of what’s restricted is not part of the product. That’s the… The product of the phone company is just allowing people to have one-​on-​one conversations. Social media, the entire value of social media is that… And some people try to break this up between the algorithm and the distribution. I think it’s all the same. It’s all part of the same product. It’s the experience of being on social media.

0:28:05.9 Jeff Kosseff: I would say that whatever, I guess HN whatever the most free-​wheeling site is, that’s a very different experience than being on Facebook. Reddit is a very different experience than being on Twitter. And that comes down to these editorial decisions that the private companies are making that differentiate each other. Another difference is, for cable providers, for example, one factor that the Supreme Court weighed in local carriage rules was saying, well, they basically have a bottleneck, these cable companies, to individual’s homes. You don’t have that with social media. And yes, Facebook and Twitter, they have tremendous market share, but you know who else had tremendous market share back in the day when newspapers [chuckle] had staffs were newspapers, and they were not dubbed to basically be able to be taken over by the government and commandeered for their editorial policies.

0:29:14.1 Jeff Kosseff: So I definitely see where this is coming from. I don’t think the comparison is terribly strong, especially when you look at what value that the companies provide. Perhaps the companies have become too… Some of the companies have become too big to compete against. I think about, it was probably 2006 or 2007, in either Forbes or Fortune there was this big cover story with two guys on it on the cover that was the founders of Myspace, and the general theme of the article is, “Will anyone be able to stop Myspace?” And the answer is, “Well, yeah.” [laughter] That’s done.

0:30:00.0 Jeff Kosseff: And perhaps that’s not possible now. I will say, and I should probably give the caveat that everything I’m saying is only on my behalf and not representing the Naval Academy or DOD, I’ll say that when I teach every semester, I ask my students, “What platforms do you use?” This is my seventh year at the Naval Academy. My first year, I would say, a pretty solid majority said they regularly used Facebook. This year, not all that many, and also not that many on Instagram. They’re using TikTok, they’re using Twitch, they’re… So I just think that, there… Yes, there is tremendous amount of market domination, but I think it’s just very different than a company that basically has a complete bottleneck. I don’t think that’s the same thing.

0:30:53.6 Trevor Burrus: The thing that has me always scratching my head to your analogies is that even if you’re talking about railroad or, as you said, more like the phone companies, no one ever thought that letting two Nazis talk on a phone line meant that AT&T was promoting Nazis or letting a Nazi ride on a train meant that they were promoting Nazis or whoever would be in that situation. It boggles my mind that people make this analogy, and so I’m with you on that.

0:31:21.8 Aaron Ross Powell: You mentioned people switching to Twitch though, and that makes me think of, I guess, another way of approaching this question, which is, yes, social media is… There are lots of alternatives to social media. You can switch off of it, you can send your messages other ways. But Twitch is owned by Amazon, and Amazon Web Services powers… I don’t know, I’ve seen numbers like 40% of websites are in some way powered by Amazon Web Services. My guess is a huge percentage of apps rely on Amazon Web Services, and we saw… After the January 6 attack on the Capitol, we saw Amazon Web Services basically de-​platform, I think it was Parler, the Trumpist social media platform. And is that a more concerning issue or does that get us closer to the common carrier when it’s not the platform sitting on top, but it’s the pipes themselves that can discriminate against?

0:32:28.0 Jeff Kosseff: Yeah, I think obviously that’s more concerning when they… I don’t see that as necessarily a common carrier issue. I think the problem is that the few alternatives there were all did not want to do business. So I think in some ways, I will say, and again, my personal view, I am not at all sympathetic to platforms that were used, and I think that the platforms themselves, and this includes what we would think of as big tech, should have done more. But when you look at the reasoning for it, their reasoning is, at least they’re alleging that certain platforms were used by people involved in an attempted insurrection. It’s a tough issue.

0:33:30.8 Jeff Kosseff: It’s definitely more concerning than Facebook taking off Nazi content directly. For me, that’s a much more clear-​cut case. So, yeah. I’m obviously… Again, I always think about the issue if it’s… If someone… Even if I agree with the decision that was made, I like to think about, “Well, what happens if someone else is making that same decision and has that same amount of power?” That concerns me. I don’t see the same comparison with common carrier, and I’m not an anti-​trust expert, so I’m probably not the best person to opine on that, but yeah, I’m more concerned with deeper in the stack when things are being cut off. And I’m not… I don’t have any really good solutions as to how to deal with that.

0:34:21.9 Trevor Burrus: The thing that strikes me as very interesting in this debate is one of the things I’ve covered and done… Written on a bunch over the years is Campaign Finance debates, and 10 years ago when I… Right up to the time I started at CATO, we had the Citizens United decision, and there was a lot of people along the left who were very, very upset about that decision. But fundamentally, it always seemed to me that they were mostly upset about it because they feared that the resulting marketplace of ideas would be against them. So they were not actually making these principled First Amendment arguments, they were saying that if you let corporations spend too much money, the marketplace ratings will tilt toward conservatives.

0:35:04.6 Trevor Burrus: And conservatives said, “No, no, no, this is a principled First Amendment application.” Now it seems to me that everything has flipped around and conservatives are making basically the exact same arguments, focusing on the fact that they think the marketplace of ideas as “run” by big tech will be against conservatives, therefore it needs to be regulated for fairness without any concern of A, the First Amendment, or B, a principle position, or C, as you pointed out, that power being used in worse hands in the future, and I’m not sure if that’s an analogy that makes sense to you.

0:35:40.6 Jeff Kosseff: Yeah, yeah, I think that it’s definitely… It’s interesting to see how quickly that this flipped around. So just two… I guess it was just two years ago. And the most common argument that we see in courts right now, and this might change as states continue to pass laws, but the most common argument challenging platforms’ decisions to de-​platform or de-​monetize content or remove content has been saying that the platforms violated my First Amendment rights. And you don’t see that too much coming from members of Congress, but you do see that a lot in litigation.

0:36:19.5 Jeff Kosseff: And the biggest barrier that the plaintiffs have to that is a decision that Justice Kavanaugh wrote two years ago, which was split five four between conservatives and liberals, and where the conservatives, the five justice conservative majority… This was a case involving a cable access TV station that basically told two of its critics, “Hey, you can’t put anything else on our channel,” and this is a cable access TV station that was basically chartered by state law. And even in that circumstance, the Supreme Court majority said they’re not a government actor, so they’re not subject to the First Amendment. And that has been cited by courts.

0:37:08.3 Jeff Kosseff: The Ninth Circuit soon after got a claim from PragerU against YouTube, and the Ninth Circuit pointed directly to Kavanaugh’s decision and said, nope, you can’t… If a cable access TV station, which I think is a much closer call, because that’s… You could see that as an extension of the government, if they’re not a state actor, we’re certainly not gonna say that YouTube is a state actor, and that’s how quickly it’s gone. And I, frankly, wonder if that cable access case was this year rather than two years ago, I really wonder whether it would have been totally flipped around in the result and whether the liberal justices would’ve gone the other way and the conservatives would’ve banded together to say that this was state action. I’m not sure, but I’ve actually thought quite a bit about that.

0:38:02.5 Aaron Ross Powell: We have spent the last year and a half living through a pandemic, and fingers crossed, it looks like we’re on the way out of it, but it still is burning through a lot of states. A lot of people are dying, and a lot of the deaths seem to be caused by misinformation, by people believing screwy things about vaccines, by people thinking that horse de-​wormer will save them, and so on, and a lot of this is coming from stuff they’re reading on major and minor online platforms. And Section 230 might protect that speech and the First Amendment might protect that speech, but should we should be restricting that in the same way that we restrict, say, shouting “fire!” in a crowded theater?

0:38:52.4 Jeff Kosseff: Wow, you get me onto my favorite topic, which is the misuse of fire in a crowded theater. I have a book on anonymous speech that’s coming out in a few months, but the book I’m currently writing, that’s coming out after that is tentatively titled, “Liar in a Crowded Theater,” and it is about why the First Amendment protects false speech. There’s a whole chapter about… Which I won’t bore you all with today about how fire in a crowded theater actually, first, is not good law, and also is not what Justice Holmes said. But the broader point…

0:39:38.9 Trevor Burrus: Well, I do think you should point out, at least a little bit about what that case was, because it’s worth it for our listeners just how horrible that case was and what it… Yeah.

0:39:46.6 Jeff Kosseff: Yeah, so that was a seditious libel case, and it was basically, in dicta, Justice Holmes talked about how you can’t falsely… There are certain limits on First Amendment protection, you can’t falsely say, “fire” in a theater and cause a panic, which… So the falsely and the causing a panic are not really paid attention to. Other things that are not paid attention to is the next year, he wrote a dissent in which he actually articulated the entire framework for the marketplace of ideas, and the other thing that is completely overlooked is that opinion that he initially wrote with the fire quote in it was explicitly overruled by the Supreme Court in 1969 and replaced with a much higher standard for…

0:40:46.8 Trevor Burrus: Yeah, the guy was handing out anti-​draft literature during World War I, and that’s what Holmes equated to yelling… Falsely yelling “fire!” in a crowded theater. It wouldn’t… Yeah.

0:40:56.0 Jeff Kosseff: Yeah, there were a lot… And there’s actually an entire book that someone wrote about that period from 1918 to 1919 when Holmes basically recognized the error of his ways. But the much broader issue beyond the fire in a crowded theater is that the First Amendment does protect a tremendous amount of false speech, not absolute, so we have defamation, for example, we have fraud, we have false advertising, but we set very high bars for that. There is not… The most classic recent case is a case called the US versus Alvarez from, I guess it was a decade ago now, where there was a federal law that said you… That it’s a federal crime to lie about having a military honor. There was a guy who was recently elected to a Water Board and he… In California, and he… I don’t know why he made this lie, but he got up and said that he was the recipient of the Congressional Medal of Honor, which is like the easiest thing to debunk possible.

0:42:04.9 Trevor Burrus: Which you could just Wiki. Yeah. [chuckle] As a side, have you ever read the… His brief in that case, the… If I remember correctly, the brief that he submitted as petitioner, the very first line of it is something like, “My client is a liar. Since I have known him, he has told me that he’s won all these medals, that he did all these things. But my client, while a liar, is not a criminal.”

0:42:29.0 Jeff Kosseff: Yeah, yeah. And what the Supreme Court did is they said, “We cannot have without any specific demonstration of harm or intent, we can’t just have a blanket prohibition on lies.” And what’s interesting in the misinformation context, one thing that I’m doing for this book is I obviously focus some on defamation, you have gotta deal with all the classic cases like New York Times versus Sullivan, but what I find more interesting are the non-​defamation false speech cases. So there’s this rich body of case law that’s not really gone to the Supreme Court involving things like people who read a diet book that says crazy things can make you lose weight and are totally healthy, and they get really sick.

0:43:16.4 Jeff Kosseff: There’s a lawsuit from the 1990s against someone who published The Encyclopedia of Mushrooms, and it basically led them to consume mushrooms that almost destroyed their liver, things like that. And almost… And there’s maps that take people into hazardous conditions, all sorts of things that come out… That are based on false speech, and the courts almost uniformly say we are not able to hold someone liable for false speech because we’re too concerned about the chilling effects on speech. And I think that for the pandemic question, which you initially asked about… And one thing my book is really looking at is how do you distinguish between true and false, which is harder than you would think. I think the one example from the pandemic has been the Lab Leak theory, which has not been… I don’t think there’s any consensus either way on that, but I would say the line of expert thinking a year ago on that theory is very different than the line of thinking today.

0:44:31.0 Jeff Kosseff: And if you had an ability, if the government had an ability to prohibit misinformation a year, 18 months ago, perhaps there would not have been nearly as much discussion about that if the government could say, “This is false speech. This is misinformation,” and then where would we be… And then there would not have been any further discussion. I also think, and I’m articulating this in the book, I think that one thing that’s often too underappreciated about the First Amendment is there is really, in addition to this marketplace of ideas, there’s also a level of just individual responsibility for the listener of the speech.

0:45:16.7 Jeff Kosseff: And, yeah, I think that the… If you say, “Take this horse de-​wormer. Everything’s gonna be fine,” yeah, that’s a problem, but there’s also a problem that we have so many people who are so willing to believe that and lack the critical thinking skills to assess that reliably, and that’s a much deeper problem. And it is a problem, but I think addressing it goes far beyond just dealing with how you restrict speech.

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0:46:08.6 Aaron Ross Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple Podcasts or on your favorite podcast app. Free Thoughts is produced by Landry Airs. If you’d like to learn more about Libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.