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What a fuss about an omlette! Why lies are protected speech in the U.S. (Liar in a crowded theater; Kosseff 2023)

Posted: Mar 02, 2024 13:03;
Last Modified: Apr 10, 2024 11:04


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This is an interesting and as far as I can tell thorough discussion of First Amendment law in the United States.

It takes a couple of interesting angles on the question of free speech which I think are probably useful for anybody who is thinking about this and related issues — e.g. Academic Freedom, Campus Speech Codes, Deplatforming, “wokeism,” and so on.

The first is that Kosseff focusses his discussion primarily on the question of why falsehoods are protected by the First Amendment. This seemed counter-intuitive to me at first, but of course it makes a lot of sense. Obvious truths and unobjectionable speech need to no protection. Freedom of expression policies exist to define the boundary cases: when something that is either clearly not true or is objectionable needs to be protected and when it doesn’t.

The first discussion of this involves a simple but (to me) profound observation about the standard exception to free speech: shouting “fire” in a crowded theatre. As Kosseff points out, this is in fact not always forbidden: you are allowed to shout fire if there is one, for example, or if you think there is one, or if you are in a movie or a play where the script calls for you to do so, or where you are making what is widely understood to be a joke about how you are not allowed to shout fire in a crowded theatre. The place where you are not allowed to do that is if you falsely do it in order to cause a stampede (interestingly, I wonder how this relates to restrictions on even discussing bombs and terrorism in airports).

The book is full of interesting cases, with long discussions of the reasoning behind the final decisions and often excerpts from questioning at the court. An early case Kosseff discusses is Alvarez, which involved the case of a Claremont-area water-board member who lied about his military service, in particular by claiming that he’d won the Congressional Medal of Honor, the U.S. Military’s highest honour. There seems to have been no purpose to Alvarez’s lie except self-aggrandisement, but, as it turned out, it was also against the 2006 Stolen Valor Act, which outlawed false claims of military honours. The question in this case seems fairly straightforward: whether a person won a military medal or not is a matter of record; so lies about it would be fairly easy to identify.

In actual practice, however, the decision in the end went against the government, finding the act unconstitutional. The reasoning was interesting: in the first place, it was that the government had no need to regulate speech about medals — it could easily counter against lies by publishing the names of winners for example. More important (in my view) was the problem that by allowing prosecution for such lies it introduces the possibility of_selective_ prosecution: going after political enemies, but leaving aside political allies; or prosecuting people who made the lies in some circumstances (on stage for example), but not others (bragging to grandchildren or nephews).

Another interesting thing in the book is the distinction between false speech that is allowed (e.g. Alvarez and his medal) and that which isn’t: corporate claims about medical value, fraud, lying to officials, perjury, some forms of professional speech. One place where false speech is allowed — or at least incorrect speech can’t be punished — for example, is scientific enquiry: because scientific claims are by their nature provisional, they cannot be legally prosecuted when they do not cross over into fraud.

Finally two other interesting points to remember about the book. The first is that there is an extensive commentary on the responsibility of audiences in dealing with false speech: to avoid offensive speech and to take due diligence with false speech — this is particularly true with regard to scientific speech or journalism. The second is that there is a large section on how Fauci and other government and scientific officials during the pandemic ended up harming the cause of free speech by trying to silence speech they considered improper, but which, in fact, had raised legitimate questions (e.g. the questions about lab origins of the virus; early vs late questions about masking).

I am reading this book largely as an anchor for my thinking about Academic Freedom, which is, of course, not the same thing as Freedom of Speech. I thought this book was interesting for establishing some of the limits and rationale for protecting speech and for distinguishing between allowable and non-allowed speech in the purest sense — something that might be useful in attempting to see what if any additional limits might be necessary or reasonable in the context of academic freedom.

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