When commentators and politicians discuss misinformation, they often repeat five words: “fire in a crowded theater.” This outdated analogy, originally deployed to justify the conviction of an anti‐draft pamphleteer, has taken on a life of its own as a catch‐all justification for the regulation of false speech. Along with the other half‐truths, exaggerations, lies, and falsehoods that law professor Jeff Kosseff examines in Liar in a Crowded Theater, this persistent, pernicious phrase illustrates the enduring difficulty of mandating truth.
Kosseff addresses the pervasiveness of lies, the legal protections they enjoy, the harm they cause, and how to combat them. From the COVID-19 pandemic to the 2016 and 2020 presidential elections and the January 6, 2021, insurrection at the Capitol, he argues that even though lies can inflict huge damage, US law should continue to protect them. Liar in a Crowded Theater explores both the history of protected falsehoods and where to go from here.
Kosseff shows not only why courts are reluctant to be the arbiters of truth but also why they’re uniquely unsuited to that role. Rather than resorting to regulating speech and fining or jailing speakers, Kosseff proposes solutions that focus on minimizing the harms of misinformation.
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