I just got done reading a book that sounded interesting, and even was good at the start, but, had a surface-level treatment of background history behind our current level of First Amendment law, and worse, was surface-level in discussion of tweaks, including but not limited to Section 230 related items.
Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation by Jeff Kosseff
My rating: 3 of 5 stars
Good, but not quite great, and ultimately, not quite not quite great, as it slumped at the end. Let's dig in.
The best way to describe Kosseff’s thrust in the first half to two-thirds of this book, is by analogy with the old lawyers’ joke.
(Well, WHICH old lawyers’ joke?)
That’s the one where a person says, of Lawyer X, usually of the famous type, “Boy, they’re a jackass,” but down inside says, “If I ever need a lawyer, I want them.”
That’s the way freedom of speech is, per Kosseff, or one way to think of it: “Boy, I hate THEM getting to spew that, but I want that same level of protection myself.”
First, Kosseff says, after separating truth from legend in Holmes' "crowded theater" (which I already knew) the marketplace of ideas meme is good but not great, is not the only 1A protection, and cannot stand by itself. First, different actors have different size stalls in the marketplace. Second, the “informed citizenry” argument bolsters it. Beyond people vending ideas, people simply needs to see ideas. Re the marketplace, cites Bill Brennan that there needs to be buyers as well as sellers, and thus, restraints on speech are harmful both ways.
Then Kosseff notes the difficulty of establishing “truth.” Things like predictions aren’t simple empirical statements, but they’re more than opinions. Weather forecasts an example. Next, publishers of ideas, unlike makers of products, don’t have an express liability for the ideas they publish. That would kill publishing. Then, notes that what once seems untrue might be true; Kosseff cites the lab leak theory on COVID. Ironic even as Team Biden now faces suit over its attempt to put a thumb on the social media scales, even if that’s not direct censorship.
Re Washigton Gov. Jay Inslee’s bill, 183ff, The Baffler suggests another option vis-à-vis Trump: That either the original 1870s Ku Klux Klan Acts, or a modern equivalent, would disbar him. Just one problem: the KKK Acts, all talk about a “conspiracy” of … “two or more” or similar. Whether these acts are constitutional or not (and Thomas Geoghegan acknowledges they could be ruled unconstitutional) good luck proving a conspiracy of two or more.
The “self help” chapter in part 3? Kind of naïve. And, from here on, the book is kind of "meh." It shows not only a surface-level treatment, but by its lacunae, that Kosseff has particular ideas of what he favors or not. We'll get to the lacunae in a minute.
First? The idea of retraction statements being a defense against at least punitive damages in defamation cases and that this could be extended to social media? Laughable, on the "extension." What’s to stop them from being pulled down again? And, does FB, Twitter, etc. want to be engaged in locking such posts? If they are, what if the defendant quote tweets to say “I repudiate this.” Fact-checker orgs like PolitiFact as self help? Per earlier chapters by Kosseff, I’ll bet it called the lab-leak theory “mostly false” in the early days of COVID. It’s been wrong plenty of other times, in framing for sure, if not actual facts. And, per other themes of Kosseff, should be called “PolitiOpinion.” Snopes is not always incredibly good either.
The next chapter? Quite timely, given SCOTUS now debating the two NetChoice (lobby arm for social media) vs states lawsuits, and re “jawboning,” the Murthy vs. Missouri scheduled for March. (Rick Hasen, "interestingly," doesn't mention it.)
That said, re Section 230, I do favor amending it. Indeed, social media companies do act like publishers. Maybe not totally. But, there’s enough that’s analogous that we should carefully amend it. (I oppose starting over with new law; a big old bag of worms would be opened.) The big problem is that it’s not that Facebook, the biggest of all, can’t do more as a publisher. As anybody who’s read about the “content moderation farms” in the Philippines knows, the real issue is that Hucksterman is too damned cheap. Kosseff doesn’t address that. Nor does he engage with media and media law orgs. My link above discusses a piece by Nieman Lab, and to extend the analogy of social media to media, they talk about “monetization” as a “trigger.” In fact, other than his one reference to PolitiFact, there’s no index listings not only for Nieman, but Columbia Journalism Review, Jay Rosen (not that I totally agree with him, but he's a known standard), Dick Teufel formerly of ProPublica, etc. Indeed, per my discussion of his mention of PolitiFact, there as IS NO SUCH THING as one unified Politifact. And, in the point of dropping in that last link, I realized he was going to go down to three stars after all.
As for his suggestion that perhaps things like Net Nanny should be rolled out? Facebook Purity already exists and Hucksterman does everything he can to sabotage it. Next? Kosseff overly romanticizes Mastodon. Related? Bluesky? Started within Twitter. And, Jack Dorsey is good only in comparison with Elon Musk.
Another three-star reviewer talks about much of Kosseff’s solutions as “milquetoast.” I’d have to agree. Finally, it should be noted that he's in cybersecurity law. That's probably a big deal at the Naval Academy; I'm sure that media law is not.
Finally, Kosseff is wrong, elsewhere, in book-length form, about Section 230. It is NOT "the 26 words that created the internet," but rather, "the 26 words that created the internet as we know it today." That's a big difference, per one reviewer of his book.
Given both these, I think you can take a pass on reading him, folks.
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