 Over the past decade, no legal scholar has pushed arguments for free speech as far or as influential as Jeff Kasev, a former journalist who now teaches cybersecurity law at the U.S. Naval Academy. In previous books, he defended Section 230 of the Communications Decency Act as the 26 words that created the Internet, and he stood up for anonymous speech in the United States of Anonymous, how the First Amendment shaped online speech. His new book is his boldest yet. It's called Liar in a Crowded Theater, Freedom of Speech in a World of Misinformation. And I liked it so much that I blurbed it, calling it a smart, rye, deeply researched and utterly convincing defense of legal protections for misinformation in an age when we are less likely to agree on basic facts than ever before. I talk with Kasev about why misinformation, however it gets defined, should be protected, how the boundaries between private companies and government actors are getting blurrier and blurrier, and why so many journalists are calling for limits on the First Amendment. Jeff Kasev, thanks for talking to Reza. Thanks so much for having me. All right, so let's start with the elevator pitch for Liar in a Crowded Theater, which has not only, well, you have a bunch of questionable blurbs on the book, one of which I provided. Thank you. But what a great cover and title, Liar in a Crowded Theater and it's a fire alarm that says Liar in a Crowded Theater. What's the elevator pitch? So there are a lot of concerns about misinformation, some that are very legitimate, some that I think might be overhyped, but regardless of that, there have been so many solutions that have started with the premise of overhauling the First Amendment. And what my book sets out to do is to say, let's just slow down a little bit and let's look at why the First Amendment exists, why it protects a lot of falsehoods and alleged falsehoods and other solutions to these concerns that don't automatically involve giving government official power. Well, you are like a real trouble banker saying like, oh, maybe the First Amendment is worth something in today's climate in a broad sense. Well, I didn't really think that this was something that I needed to write about, but especially since I've been doing a lot of the press for this book, it's been really a little disheartening how many journalists have been sort of both sides in the First Amendment. And I think there's a lot of debate about both sides in, but for the First Amendment for journalists, I feel like you could be pro-First Amendment and it's okay. Like we get it. I mean, you're a former journalist that award-winning journalist. I am an award-losing journalist. You're an award-winning journalist. That's among the many differences. And this book is of a piece with your previous work, which included a defense of Section 230, when that was really starting to come under a lot of attack. That seems to have abated a little bit. And then your previous book was about anonymous speech, defending anonymous speech. So I guess before we go into the meat of the book, you were a journalist, but what is wrong with you that you are consistently defending the First Amendment across these large waves of criticism of it, whether it's the things related to Section 230 and online speech, anonymous speech, and now misinformation? A lot of what I find myself doing is defending the status quo, which because the United States, we have a lot of problems with a lot of our laws, but I think the First Amendment is actually one of the bright spots of our constitution, and it sets us apart for most of the rest of the world. So the overall theme that I have is, let's actually look at why we have these protections. And yes, there are problems, but let's not impulsively react to this by saying, let's scrap all of this and become like Europe or Russia. I don't think that's a great solution. Yeah, it's kind of amazing. I turned 60 over the summer, and I mistook the time, and I guess it's very common, the time that I grew up in was, oh, that's just the way it always has been. And as I got older, I realized like the First Amendment really wasn't that strong or robust, or it wasn't interpreted, and it didn't have a lot of cultural force, really, until the post-war era, in a big way. And then it seemed to be getting better and better through the 90s. There are obviously a lot of fights about online speech and other forms of kind of unfettered expression in the 90s, which ultimately got beaten back. But it's stunning to me, you mentioned journalists both sides in the First Amendment. Because you realize the First Amendment doesn't have to be interpreted the way it is, or the way it has been for most of our lives. You're at mid-40s? Yeah. What do you just very briefly, what do you think is going on with journalists, where they are like, oh, I don't know, you know, like maybe the First Amendment is kind of problematic? I think there's a lot of comfort. I think that most journalists in America have not experienced a system without the First Amendment, so it's easier to take it for granted. And I think that's the best case scenario. Some of my experience as a journalist has been, I've actually relied on the First Amendment both with having a member of Congress threaten a defamation lawsuit and a very powerful person in Texas threatened to use local officials to arrest me for publishing materials. So for me, I see the real value in why we have the First Amendment. And in a lot of other countries, I could have been sued out of existence or gone to jail. Yeah. And that was disturbing when Donald Trump first kind of was running for president in 2016. One of the early kind of brash statements he said is like, I'm going to open up the libel laws. And yeah, you don't want politicians doing that, right? No, you don't. And we have at least two justices on the Supreme Court who say we should revisit opening up the libel laws and undercutting really one of the most important protections for journalists. Which again only really dates back to the what the early 60s. Yeah, 1964. And I think journalists would in the United States would have a very different experience doing their job if we didn't have that protection. So let's start with the kind of controlling metaphor and joke in the title liar in a crowded theater. That's a reference to people who will constantly say, including law professors, journalists, politicians who say you cannot, free speech is great, but you can't yell, fire in a crowded theater. Just unpack that a little bit. What is that phrase? Where is it coming from and why are people getting it so wrong? So contrary to popular belief, the Supreme Court never had a case actually involving a fire in a crowded theater, but they did use a derivative of that phrase. And this was in 1919. There was a socialist in Philadelphia named Charles Schenck who is distributing fliers outside on the street corner that made a very bad legal argument. It said that the military draft violates the 13th Amendment. It was stupid, but he was arrested under the Sedition Act for posing a clear and present danger to the US military efforts. And now you would think that's crazy, but at the time the court was very permissive. So in a unanimous opinion, Justice Oliver Wendell Holmes upheld his conviction and just sort of as an offhand metaphor said you can't, just as you can't falsely yell, fire in a theater and cause a panic, you also can't do this. You can't leaflet stupid pamphlets, like Broad and Spring Street or something in Philadelphia. Exactly. And that metaphor quickly took off. And I actually had a very boring title for the book for the first half of my research. And I changed it because what I found time and again as I was researching cases where the government or private parties tried to restrict speech and it would later get struck down, when they were trying to restrict the speech, they would almost always use fire in a crowded theater. They'd say, because you can't yell fire in a crowded theater, you can't say X, Y, or Z when you usually can say X, Y, or Z. So and of course you can, I mean in Holmes's quote, it's that you can't falsely do it, right? And you can't incite like a trampling or something like that. But if there's a fire, you talk about in the book, like if you're in a play and somebody in the play has to say fire, obviously that's okay. So that's the shank decision in 1917. And that came up with what is at the clear and present danger test, right? So it's like that pamphlet by, you know, a nut job, commie in, you know, just after World War I, that was interpreted as being like, oh, that could bring the whole thing down. So we have to shut it down because it's clear and present danger. Two years later, there's the Abrams case. Excuse me. Can you explain what the Abrams case is, which Holmes is also involved in? And how does that kind of reiterate or revise? Yeah. So the both cases were actually decided in 1919. So there was about nine month space. So Abrams was in March. And then the Supreme Court takes a nice long recess during the summer. And during that time, Holmes goes back home to Massachusetts. And he spends a lot of time with some fairly libertarian Harvard law professors who basically say to him, hey, you know that fire in a crowded theater thing, that really is dangerous. And they gave him readings from John Stuart Mill and Milton. And they really changed his mind. Thomas Healy, a law professor at Seton Hall, has a great book called The Great Descent, which goes through that summer. So Holmes gets back that fall. And he gets a very similar case called Abrams, where almost identical to Schenck. And this time, the Supreme Court, seven to two upholds the conviction, but Holmes joined by Brandeis' dissents. What are the facts of the case? It's basically criticizing US military policy in Russia. And it's a brochure that's criticizing it. It's almost identical arguments. And so you would think that Holmes would come out the same way. And he tries to distinguish Schenck and say, this is a little different. But then in his dissent, I think it's the most quoted dissent in Supreme Court history. He articulates this marketplace of ideas metaphor, the idea that rather than immediately regulating speech, it's better to let truth and falsity grapple on the open market and let truth prevail. And it's just this radically different theory than he had just articulated six months ago. It's a really great metaphor. And that goes back to Milton as well as John Stuart Mill later. But Milton, can you talk a little bit about that origin of the idea? I mean, and this is really at the beginning of a kind of liberal conception of governance as well as speech and society. You know what, like that, you know, these people who are out there who are reading stuff might be capable of actually figuring things out on their own. Yeah. And you see this throughout a lot of writings for centuries that first the regulation often isn't all that effective. So Tocqueville wrote quite a bit about what I think actually has evolved into the Streisand effect, which is that if you're regulating speech, it's actually going to get more attention because people will pay attention to why is the government doing this. So it might actually... And you see that today. One thing I like to point out is all of the people who were really thrilled about Trump getting deep platform from Twitter, a lot of the more liberal journalists, and they really said this is the best decision ever. Now you see them routinely screenshotting what he posts on Truth Social and drawing attention. And it's like you're bringing more attention to it rather than if you just let him talk. And so I mean, I think that's a big part of the marketplace as well. So then the next step in this is kind of Brandenburg, right, which is 1969. What are the facts of that case? And how does that kind of act as a coda to the original shank decision? So that was under Ohio's criminal syndicalism law. It was a KKK leader who was being convicted and he was challenging his conviction under the First Amendment. The government said, you know, this is a clear and present danger, just like shank, just like Abrams. And the court doesn't explicitly overrule shank and Abrams, but it basically says, well, what we really meant was it's not a clear and present danger. The standard is imminent incitement of lawless action. So both that the person speaking intended to cause imminent lawless action and they would have had a likely effect of doing so, which is totally different than saying it's a clear and present danger. That's so much harder to meet. So they effectively narrowed quite a bit the standard that Holmes had first articulated. Is that the same as fighting words, or is it slightly different? No, those are different and fighting words is not all that often used. So imminent incitement is something that the government would rely on more. What's a good example, or the textbook example of imminent incitement to... So it's obviously very fact specific, but if you had a mob of people who are protesting a business and you're outside the business and you're saying this is the way into the business and this is how we're going to destroy the property and physically injure people and let's go now, it has to be that sort of level. It's not just saying, I don't know, I think this business is corrupt or that it's stealing from its workers. What if you say something like, we should take this business down and then people start rioting? I mean, how much of it is predicated upon what happens as opposed to what is spoken? Well, so it has both a subjective and objective component. So you still have to show, did the person intend to do this and that's really going to depend on how hard that is. Like with Trump on January 6th, in your opinion, do you think is he guilty of incitement per se? You know, I'm going to pass on that for now because I think I try not to talk about politicians given my current job. You're part of the government, so okay. So that's kind of the backdrop and then we're talking about misinformation. You open the book with the pizza gate shooting. Can you remind us of a few of the details and then how did you start the book with the pizza gate shooting? Yeah, so I started with pizza gate because that was really the origin of so much concern about fake news. Obviously, when you hear fake news now, it's associated with complaints about the media, but really the modern fake news debate started in 2016 with concerns about Russia and concerns about people on social media making up stories and it kind of got intertwined with the WikiLeaks and the hack of Podesta. And so for a pizza gate... Man, I'm sorry to interrupt. It's like that is not long ago and it kind of seems like, I don't even remember that season. That's like when the happy days team started a dude ranch or something. I don't know. Yeah, no. It does feel like a lifetime ago. And so when Podesta's emails were hacked, they're kind of trickled out and there was one communication about a fundraiser at a... We're in D.C. right now, just a few miles away in Chevy Chase. There's a pizza restaurant that Podesta had an email with the owner of the pizza restaurant. It's a family pizza place. You know, pizza and ping-pong. Yeah. Yeah. And so somehow they're on sort of the conspiracy parts of the internet. There were theories about this being sort of a nefarious business and it sort of devolved into these claims, these very false claims that Democrats were running a satanic child sex trafficking ring from the basement of Comet Ping Pong even though it didn't even have a basement. History repeats itself. I don't know. Like at first as farce because when that story was unfolding, I was thinking about it in Pee Wee's Big Adventure when he's looking for the basement in the Alamo. And there is no basement here. It starts as farce and ends as tragedy because a deranged guy shows up and shot up Comet Pizza. Yeah. Yeah. And I mean, fortunately nobody was physically injured, but it was obviously terrifying for the employees, the customers. And I think that it was really interesting to trace that case. He ended up pleading guilty and being sentenced by then district judge Katanji Brown Jackson. Whatever happened to her. I don't know. Well, she had her own experience with misinformation that I talked about in the book. But she during sentencing, she said, you know, you obviously I feel very badly for you, but I'm going to sentence you to four years in prison because it's not really an excuse that you bought into these conspiracy theories. And I actually think she handled it very well. I think that's how you deal with misinformation is don't treat people like these sort of passive recipients. And if you're going to believe nonsense on the internet and act on it, then you face consequences. Yeah. I mean, in the marketplace of ideas, it's got to be caviarademptor, right? Exactly. Yeah. And that is, I mean, I don't think this is a hard sell to me. I hope it isn't to other people. But yeah, that's the whole idea. Like we're not passive consumers of media, whether it's TV shows or news or anything. Like we, you know, the individual is ultimately constructing the meaning. So they should be held responsible for really bad interpretations. Well, but unfortunately, I think there's a whole lot of people, including members of Congress who disagree with that, who think that individuals have really no control over how they respond. And they're just programmed by misinformation. This is, yeah. No, I'm working on a different piece that revisits in the 90s. This was obviously a massive kind of battleground of our TV viewers, Janet Reno, the Attorney General under Bill Clinton was threatening networks, both cable and broadcast, saying you have to reduce violence or else I will censor you. And her governing theory, which was widely shared by liberals and conservatives, was that people are passive consumers of entertainment and we get programmed by this stuff. So, you know, we need the Guardian class. And that was kind of what was great about the internet revolution really was like, no, thanks, we're the end user is in charge here. I, you know, I create my meaning, but sorry to go off on that. So, so then, you know, talk a little bit about the Catani Brown, Jackson misinformation. Yeah, problem with misinformation. So this was during her confirmation hearings for the Supreme Court, Senator Holly in a few days before her hearings, he tweeted out a long thread about, you know, real concerns that he had about her sentencing of people who shared child sex abuse material or who downloaded it. And there are very strict federal laws that had and the sentencing guidelines are very, very high for this. And he said, you know, in seven cases, she sentenced below the guidelines, which judges have the ability to do. And it was all factually accurate what he did. But the way that he presented it made it seem like she was this radical judge who wanted to let child predators free and it provided no context that the majority of federal judges in non-production child pornography cases sentenced below the guidelines because they're so high. And so I, but then sort of in a lot of sort of niche media outlets, it became, you know, why is Katanju Brown Jackson easy on child predators? And it became really something she had, she had to deal with, but she did deal with it. I think she, during her hearing, she exercised what we would call counter speech. And she explained, you know, I take these incredibly seriously and this is how I address it. But I mean, is what Holly did misinformation? I don't know. I don't know what the definition of misinformation is. It's bad information, right? And it's motivated information. But we shouldn't regulate it. I mean, that's what politicians do. And I use sort of the other example of Adam Schiff. And Adam Schiff made a lot of statements during the House investigation about Trump with Russia. And he, I mean, he was not, he was giving his opinion, which he's allowed to do. But I mean, some of what he said made it seem like he knew more than what was in the record. And which has not come out. I mean, Russiagate, and I guess we should specify what we mean when we say Russiagate. Like, I'm thinking about it in terms of the idea that there was an act of collusion between the Putin government or, you know, agents of influence and Donald Trump for during the 2016 election. And that, you know, that has never been proven even by the government, by anybody who's investigated it. So that's another like big meatball of misinformation. How, you know, discuss a little bit how that, you know, those charges of Russian collusion play out in kind of the misinformation ecosystem. Well, so I mean, I think just like with Holly for Schiff, there shouldn't be any regulation on Lisa. If you regulate it every time politicians sort of showcased their version of the facts, you wouldn't have politicians anymore. I mean, that's what they do. And so, ultimately, it's a political issue. It's, you know, if the voters don't like it, then the voters will speak. But I don't think you should have courts getting involved in either of those cases or anything other than these narrow exceptions to the First Amendment that the Supreme Court's articulated. And neither of those come anywhere close to that. You write about Governor Jay Inslee of Washington, who this, you know, so if we have like, there's the pizza gate stuff and, you know, and kind of related to that as QAnon and there's that whole wave, which I hope has kind of crested and has receded for good about, you know, kind of grooming, because there was also the Wayfair case that the idea that somehow Wayfair, the online, you know, what furniture store and stuff was selling children, you know, et cetera. And I mean, this was like in wide circulation and stuff like that. But, you know, there's that there's the Russia gate stuff. But then Inslee is talking about another thing as governor of Washington. He wanted to regulate people who were essentially meaning Donald Trump, who, you know, is kind of a frustrating figure because he's he's at every interstice of this type of stuff, right? He was the object of the Russia gate collusion charges. But then he won't shut up about how no election even his win in 2016, he hasn't acknowledged that that was a legitimate election. But Inslee wanted to criminalize people who deny election results, right? Can you talk about that? And why, you know, why shouldn't you be able to shut people up who keep delegitimating elections? Yeah. So on the one year anniversary of January 6th, he announced his support for a bill that would basically lead to a gross misdemeanor charge, which is up to a year in prison for any political candidate or elected official who challenges the administration of an election that's been adjudicated to be administered fairly. So if someone were to say, you know, after an election is certified that this election was stolen, that could as long as they met certain intent requirements, that could lead to these criminal charges. And it had the Brandenburg imminent incitement as one of three ways that you could face liability. But there were other ways as well. Of course, when he announced his support, he said, just like you can't yell fire in a crowded theater, because of course, you've got to say that. And it fortunately, it got a hearing and then it fortunately died in committee because I think enough Democrats and Republicans said, we can't do this. And I think that if you step back, and even if you set aside the concerns about how a prosecutor could easily abuse this to just go after political opponents, how effective is that going to be? Because will the general public trust elections more if they know that you've got any prosecutor in the state being able to jail politicians? I mean, that's really some like Banana Republic stuff that we're dealing with here. We can't do that. But just the fact that we had a governor of a state saying that that that's really concerning. Yeah. You know, when I was reading that section, it reminded me, I guess it was in 2018, whenever one of the times that's Mark Zuckerberg came and testified before Congress. And he talked to at that point, he was kind of in his free speech, but because he's always toggling back and forth. And he said that he was not going to police a lot of political speech, including things like Holocaust deniers, because it takes too much time and it's not effective and it's better to have that stuff out there and have counter speech. And there was some discussion he had with Alexandria Ocasio-Cortez who asked a pretty good question where she said, well, what about people who say the election is on this day and misdirect people, like where it's the day after the election or at some place else? And he didn't have a good answer to that. Is that the type of misinformation that should be actionable? Well, so the Supreme Court actually said in passing in a footnote, but it's still a Supreme Court opinion that it might be possible for the government to regulate law intentional falsehoods about the mechanics of voting. So not whether something election was administered fairly, but saying the elections on Wednesday or saying go to the polling place that's not actually your polling place. So the court has at least suggested that that would be an exception. And would that also include saying you can vote by mail if you can't or text this number, anything that would misdirect people? I think it would. It's a one-sentence footnote and a Supreme Court opinion. But I think the trickier thing and we were dealing, there are some cases out there right now, what if someone's joking? And this is a whole, if I had the time to write a book about it, I would, which is the First Amendment in humor. Because the court, I've been going back to the hustler and Jerry Falwell case, the court has protected humor, but a lot of it depends on how would a reasonable person interpret that humor. So would someone, if you're saying the elections on Wednesday, some people might actually take it seriously, even if it was intended as a joke. Let's talk about Javier Alvarez. Who was he and why is he mentioned in your book? Yeah, so I'll just say in my opinion, I should probably caveat everything that I say in this interview is not the opinion of the Defense Department, it's just mine. Or the US Navy or even most of your family members. No one wants to take credit for anything I say. So he was not a very nice, very honest person. He was a local water commissioner in the Claremont, California area. He was elected in 2006. He has his first meeting in 2007 and they asked the members to introduce themselves and he stands up and says, I'm a retired Marine. I received the Congressional Medal of Honor, which is the highest honor that you could receive in the military. Only about 3,500 people in US history have received it. And he says, you know, I'm still around and other than still being around, it was all a lie. He never served in the military. So he obviously never received the Congressional Medal of Honor. But a few years earlier, unfortunately for him, Congress had passed a law called the Stolen Valor Act, which says that if you lie about receiving the Congressional Medal of Honor, you could face up to a year in prison. And also unfortunately for him is that that meeting was recorded, so the FBI got a copy. So he gets charged and he goes before a judge who's a former Marine who clearly didn't find this very funny. And he ends up pleading guilty, but agree because there's no factual dispute that he did this. But he reserves the right to challenge the constitutionality. So he appeals it all the way up and it goes to the US Supreme Court. And the court has a fractured opinion, but six justices agree for different reasons that this is unconstitutional because there's no qualifier. It basically says if you lie, you can go to prison. And the court says, you know, we're not going to say that all falsehoods are categorically exempt from the First Amendment. And they have different reasoning. Actually, one of the judges at the Ninth Circuit level has had this amazing list of all the different reasons why people lie. Like if your spouse asks if that shirt looks good on them, if someone at... If that Congressional Medal of Honor looks good on them. Yeah. If you're trying to get a judicial clerkship, you say you're the greatest living jurist ever. Yeah. And that lies are part of what? So if the Stolen Valor Act had been, I don't know, like tailored a little bit more, maybe it would have passed constitutional muster? Well, they actually, Congress right after this, Congress passed a New Stolen Valor Act that basically ties it to fraud because fraud is not something that is constitutionally protected. I love that story partly because I am an Eagle Scout. I was going to say I was an Eagle Scout, but if you earn the Eagle Rank, you're an Eagle for life. It's like being in the mafia. You can't give it back. But my award was given by my town's mayor in Middletown, New Jersey. I don't even remember what year, thousands of years ago, but the mayor came and he had partly gotten into office because he claimed to be an Eastern Airlines pilot back when that was an airline and that he had fought, he was like a fighter pilot in Vietnam. And then it came out shortly after I got my award that he was like a baggage handler at Eastern or something. And so I always, I have a soft spot for people who steal Valor. And did he get reelected? No, I think he was kind of flushed out. And then, of course, there's the actor Brian Dennehy was a stolen Valor guy. He was a Marine, but he was out of the service before Vietnam, but claimed at various points. And I think this had something to do when, because he was in the first Rambo movie, first blood where he plays a police chief who runs John Rambo or tries to run John Rambo out of town. But yeah, he was a big liar about it. It's very common, actually. Yeah. And I mean, one of Justice Kennedy's main rationales for saying this is unconstitutional is he said, there's 3,500 people who have ever received it. There's only about 60 people who are still alive. The government can more effectively use counterspeech to just have a lit and they do have a list of everyone who's received it. So if someone says they've received the Congressional Medal of Honor, you just look at the list. And you can tell they're lying. Whatever, what happened to Alvarez after that at judo? Where is he now? I tried to track him down for the book and I could not. So I'm not sure what he's doing right now. He's not in office right now. Okay. Well, you know, but he could say to come back, right? I mean, and it is fascinating for politicians, especially and obviously is at a low level, but many of them lie about their service. Like I don't they tend not to lie so grossly. But you know, I know people like people talk about this all the time with LBJ and Richard Nixon, for instance, they all kind of padded their service records in various ways that alienated a lot of people. I know people like George McGovern and U. G. McCarthy, who were like real bone and actually George HW Bush, who were real bona fide war hero types were always kind of pissed at Nixon and LBJ and people like that. Yeah. And I mean, and beyond just the military aspect, anyone who I covered Congress for a few years and I would hear members of Congress tell these ridiculous anecdotes that you knew didn't happen to them and you'd hear them if you covered them enough, you'd hear them tell it multiple times and it would change just a little bit depending on the context. But there's no way it could have happened. But I mean, you're also not going to put them in prison for it. That would be crazy. Yeah, I don't know. Maybe there should be an exception for congressional laws. But talk broadly about this concept of misinformation because, you know, and obviously the book goes deep on this, like that is often presented misinformation and disinformation. And occasionally there's the term malinformation is always presented as if, well, this is a scientific category. It's like, you know, it's like looking at a microscope and you see a particular, you know, germ or something. But, you know, how are people defining misinformation and just how sloppy a concept is that? So it's a pretty fluid concept. I mean, misinformation being, you know, things on the internet that are not true, disinformation being more sort of deliberate coordinated campaigns. There's all, I mean, I think the best analysis of this, Joe Bernstein, who's at the New York Times now, he, I think it was about two years ago, he wrote a cover story for Harper's that was really the first mainstream outlet that challenged this idea. And I think his line was, you know, that there's these people from like big nonprofits and elite universities who believe that they have a special access to the fabric of reality and they could define what's misinformation. And I'm not saying that, I mean, there's things on the internet that are clearly false. And I would not say that, you know, everything is true or false depending on how you look at it. But this idea that, you know, we can say with absolute certainty that we know the truth or falsity and the motives behind the circulation of this and how people are interpreting it. I always think about it somewhat, and this is probably, I wouldn't ascribe this to you, but, you know, when, when things like, you know, is the dress, you know, golden black or blue and brown or whatever, there's a lot of information in the world that is, you know, and not many of the things that we argue about the most are not really, you know, that it doesn't make sense to talk about it in terms of misinformation or disinformation. It's like actual disagreements about kind of very basic epistemological as well as ideological concerns. Yeah. And I think, I mean, you think about the lap leak theory. And I mean, the, it was considered absolutely, at least sort of by the mainstream experts to be misinformation, that's evolved. I mean, and I think there's a spectrum because if it's, you know, the vaccine has microchips and that it's easier to assess that as being false than theories about where it originated from. Yeah. And well, you have a particularly interesting section where you're talking about kind of COVID misinformation and you quote, this became a huge kind of flashpoint for reasons that are fascinating. I think despite wherever people end up on this argument, but where Anthony Fauci said, attacks on me are attacks on science. And then he's a guy who over time, he had to cop to the fact that like, okay, maybe he was fudging stuff about the lab leak. He was fudging stuff about wearing masks, the efficacy of that. He fudged on the percentage of the population that needs to either be vaccinated or have had COVID to kind of create herd immunity. So you have a guy who is claiming the mantle of science, you know, and yet he also has been caught repeatedly kind of bullshitting people for noble reasons, but still he's making stuff up, right? Yeah. And I think that when you look at solutions to concerns about misinformation outside of regulation, one of the most effective ways is for the government to build trust. And a lot of that involves just being blunt and well, and also acknowledging what we don't know. And I use the example of Denmark, their prime minister at the earliest days of COVID said, you know, there's a lot we don't know, and I'm going to be honest, and I'm going to tell you everything I can, but a lot of this is new territory for us. And again, that, you know, I think rumbling behind a lot of this is, you know, and again, I feel like people have forgotten the liberatory dimension of the internet in particular. And, you know, I wouldn't paint it this starkly, but, you know, before and after the 90s, because the 90s also was the rush of cable TV becoming a national phenomenon. So suddenly there were a lot of different news sources or information sources. The internet certainly publishing became cheaper. Everything became cheaper to produce and consume. And gatekeepers, you know, when there were three networks, like they hated the Fox Broadcast Network because suddenly, okay, that's competition, you know, and throughout society, like gatekeepers have really taken it on the chin. And it feels to me like what's rumbling through a lot of the attempts to quell misinformation is an unacknowledged sense of people who were in charge now have a, you know, they have to work, they have to hustle in the marketplace of ideas in a way that they didn't have to in the past. They do. And I also think in terms of gatekeepers, and this is where I probably diverge the most with sort of the political conservatives, is that I think that the social media platform should have the independent opportunity to decide whether they're going to block content. And this is where there have been some conservative efforts that have really concerned me about saying you must carry all this content. And thankfully, those have mostly been either struck down or they're being held up. Well, the Fifth Circuit upheld Texas's law, the Eleventh Circuit struck down Florida's law and they're at the Supreme Court this term. I think it could be disastrous if you basically say every state has the ability to tell platforms what they can and can't moderate because the internet's going to be unworkable. I mean, imagine what the Texas content moderation law will be compared to the California content moderation law. You're not going to be able to have any interaction between the states. I don't know how you'd implement that. So I think what I would like to see is, I mean, there's a separate concern about jaw boning where government officials is coercing using the threat of government. Which is deeply worrying. But exactly. But I think that marketplace pressure of basically social media platforms determining what is in the best interests of their consumers and what will bring them the greatest rewards on the open market in terms of moderating or not moderating. I think that should happen. And I think we have threats to that system right now. Do you think on that score, does there need to be a kind of forced transparency, like a legally enforced transparency on how websites or services or platforms actually do things? Or is it something that that should also be left to the marketplace? It worries me. I see the arguments for it. But I mean, imagine requiring newspapers to post their daily editorial board meetings. And I mean, I think that- Are we suffering it out? Exactly. Yeah. But it is, to me, it's always worrying. And I guess this is somewhere, Clarence Thomas seems to be very outspoken about the idea that the government can start calling balls and strikes on or dictating terms of social media platforms. And yeah, you see that on the right, and then you see versions of it on the left. And that can't end well. It can. And I mean, you mentioned Janet Reno. And one of Janet Reno's legacies is Reno versus ACLU, which is a 1997 Supreme Court case where it's probably the best internet law case out there. It's where the Supreme Court struck down the Communications Decency Act and said, the internet is not like a broadcast television. It gets the full scope of First Amendment protections. And I think these two sets of cases we have at the Supreme Court right now, both for the sort of forced hands-off approach in Texas and Florida as well as jaw-boning, I think that threatens the Reno versus ACLU precedent. And it worries me because I think the internet could look very different after next June. Yeah, which, you know, it is deeply, deeply concerning, even as it's good to know, and I think this came out with the Twitter files and reasoned it. We had a cache of material from Facebook showing how tightly the aspects of the government and aspects of these social media platforms were coordinating COVID coverage and kind of tamping things down, amplifying other things, etc. Yeah. And I think the jaw-boning is going to be, it's going to be a tough, I don't even know how the opinion should precisely draw the line because for the marketplace of ideas to work, you need everyone to be able to participate in providing counter-speech, including the government. So I don't want it to be where the government can't respond to what it views as false. It's where the government is putting pressure on a social media platform and saying, and we saw this for years. I mean, I saw it just because of Section 230 where you would have members of Congress say, you know, we need to repeal Section 230 because I don't like this constitutionally protected speech that we see on the internet. And that's where, I mean, it's kind of like nice Section 230 you've got there. It would be a shame if something happened to it. And that really worries me. Do you think it's the type of thing where people have gotten used to a kind of massive amounts of speech so they don't remember what it was like or they don't have any sense that like, you know, maybe they're not always going to be the one who gets to dictate what is allowed and disallowed? Yeah. I mean, it's a lot of the sort of pressure on the left to narrow the First Amendment. A lot of what I've been dealing with as I've been doing interviews about this book had been people saying, you know, what you don't care about authoritarianism. If you cared about authoritarianism, you'd want to weaken the First Amendment. And I mean, I kind of liken it to saying, you know, you don't care about the spread of fires. So if you cared about it, you'd get rid of the fire department. It makes no sense. Right. Again, with the fire metaphors, let's talk about some of the solutions that you propose in the book to deal with misinformation because it is, I mean, it is true. Like there is, you know, there is so much out there. Anybody, anybody can construct any narrative they want. Like there's so much material out there. It's beautiful. I mean, I love it. And I, you know, I'm old enough to remember like what it was like when you would try to find more sources. And it was just hard to do. And reason in the 90s, when we were all based in LA, it's funny. If you go back and you look, there's, we, you know, we, this was pre, we didn't have access to Lexus Nexus. And we would sometimes go to the UCLA library where we had like a community card. So we didn't even have full access there. And they had four newspapers on file. It was like the LA Times, the New York Times, the Christian Science Monitor, and maybe the Chicago Tribune. And so like, if you look at reason stories up to a certain point, like we're always quoting those four newspapers because they're the only ones that were around. You know, and it's like, it was a shit of your world. It was like a poor impoverished world. It's so much better now. But it is true misinformation abounds. So what are some of the ways that we address it? And I guess actually to come back to a little bit when you were talking about the Danish prime minister, as well as the case of Fauci, you do talk about how governments need to act differently. And you kind of land on the idea that they really need to be more honest about what they do and don't know. Yeah. And that's always going to be difficult because politicians want to spend things to their political benefit. But I think the more honest and the more trust that you can build, I mean, that will help prevent sort of the total nonsense on the internet from taking hold. And there are other solutions that I want to caution first are not complete solutions to misinformation, which is an absurd concept. There's not, I mean, you would have to fix humankind and this idea that we can ever fully address. And again, I mean, there's certain stuff where, you know, it's just like different perspectives are going to persist for good, I mean, for understandable reasons, right? What is important differs from person to person. You talk briefly at least about the way that Johnson and Johnson, which in its own way is embroiled in, you know, various kinds of COVID misinformation things and whatnot. But when Tylenol was being poisoned, I guess, right, or adulterated in, was it 1982, I think? But, you know, a couple of people, I mean, it was actually very few, but there were a couple of cases of where Tylenol had been, somebody had put cyanide in it, right, on the shelf. People died from it. And you talk about how Johnson and Johnson responded to that as kind of exemplary. Could you rehearse that for us? Yeah. So, I mean, what Johnson and Johnson did, James Burke, who was the CEO at the time, he was advised by all his lawyers when people were dying, you know, you've got to just, we've got to put a wall around the company and not say anything. And he ignored the lawyers, which sometimes is not a great thing to do. Sometimes it's a great thing to do. And he did interviews where he was very candid and it's seen sort of in case studies to this day as one of the best sort of corporate public relations moves, just to be honest. And I was actually just speaking at a legal conference yesterday about a media law conference and it was mostly defense side, but there was a plaintiff's lawyer, one of the lawyers who represented Dominion in the Fox case. And she was making a really excellent point that what Dominion did, which was so effective, was when all of the falsehoods about its voting machines was on Fox and the other conservative media, that they put out tons of statements. They sent out emails, fact sheets. And that's very contrary to the impulse of companies and lawyers. But, I mean, in part that really helped them legally because then you can show actual malice. So it's kind of also a case where like the marketplace of ideas and this is particularly true on the left, although now that I think about it, Clarence Thomas has also called this into question on the right. Like, you know, there's this whole idea that the marketplace of ideas is rigged, you know, and it's like, you know, just like Google isn't showing you what you want to know. Like the marketplace of ideas is bullshit. We're being conned. But there's actually a lot of examples where, you know what, like good information actually chases out the bad. Exactly. Yeah. I mean, and it's never going to be a perfect solution. But I think that I think it can help quite a bit and it doesn't have all the negative side effects of regulation. Yeah. You talk also about kind of media literacy and civics education, particularly in K through 12. You know, obviously, I don't know why I'm talking to you because I suspect that you believe in compulsory schooling. So that is already, there's a gulf here. But seriously, talk, what would what would media literacy look like? Because I agree with you, like we should, everybody should be treating everything they read online, essentially as a deep fake, you know, that it's like, you don't want to have a complete hermeneutics of suspicion. But it's like, you know, what you're reading is interested in various ways that you may not understand. But like, how do we get to media literacy that is not, you know, a breath away from kind of a nihilism? Yeah. So I think that what it should not be is the government saying, this is the truth. What it instead, it should be giving people the tools to make their own assessments. So if you see a claim on social media that vaccines have microchips, how do you follow the trail to credible sources to be able to verify it and make your own assessment? It's harder than just sort of saying, okay, I see something on the internet. How do you assess if you see an indictment of whatever political official your friend doesn't, if your friend ford you an indictment of a politician, how might you look to see, you know, was this actually? So what does that look like? I mean, say, you know, I don't know, in fifth grade or something like that, what, you know, what would the lessons be? Like would you use, I don't know, like case studies of like big mistakes? Well, I think what you do is give give the students a claim and say, say, okay, this is what you see on the internet. How do you, how are you doing research to see whether this is actually true? I mean, just like the case study method in law schools or business schools at a much different level, but just showing people examples of how you do this. Do you think in general that we have a higher degree of media literacy than we might have, say, 50 or 60 years ago? I think it's just very different because the media that you were receiving that 50 years ago, I think that it was from these centralized sources. I think people probably, people definitely thanks to the internet have more of an ability to verify what they're seeing, but there's also a whole lot more to verify. So it's very different ecosystems. I would like to think, you know, is just that because there's so many choices and because we are bombarded with more, I think a wider range of viewpoints that people have a sense that, okay, the information, like you really can't trust anything the way, I'm not sure anybody ever did, but like, you know, the, you know, class case of Walter Cronkite, you know, like it's, it's easier not to realize that Walter Cronkite was kind of a horseshit artist himself, you know, because there's a million of him. Yeah. But what about civics education? You talk about that and I'm curious, how does that kind of factor into this? I think people understanding how the government operates. So, I mean, understanding that, you know, yes, while the government does have a lot of power, there are certain conspiracies that proliferate on the internet that just aren't happening. But if you have a basic understanding of, you know, this is the oversight that different agencies have, this is what Congress is capable of doing and this is what the laws actually say. This is how the judicial system works that just understanding those structures, I think that helps people be a little more skeptical of this sort of immediate conspiracy theories on the internet. Right. And I guess also maybe the attempts to buy the government a right, you know, political power to, you know, kind of restrict certain speech. Yeah, yeah, exactly. And I think that to, I mean, civics education is just important beyond the misinformation debate so people can understand, you know, why is it important to vote? How, I mean, what are you voting for? And what power, I mean, when you- Yeah, almost exclusively vote against things. But, you know, but- That's fine. Yeah. Yeah. Could you talk a little bit, you have an interesting career because you're now at Annapolis or at the Naval Academy. Do they, do you train lawyers there or are you doing like undergrad? It's undergrad. So I teach cyber law and First Amendment law for, we have a cyber operations major that about 10% of the midshipman major and I also teach a constitutional law. So the same sort of law class that first year law students get because- Are they receptive to your kind of consistent, you know, upholding of the First Amendment in light of kind of government attempts to chip away at it? They are. I mean, they're, I think, teaching and obviously at the Naval Academy we're very much more science focused because we have a lot of science positions but I can think of no more important class than constitutional law for future military officers because they swear their oath, the first and last thing they get in my class is who are you taking the oath to? It's the Constitution. It's not a person. It's not an entity. It is the Constitution. So to teach them what this document is. So that, I mean, they have very spirited debate. There's, we have students from every congressional district. So there's just this amazing diversity of backgrounds that I don't think you really get at any other school. Where did you grow up? In New Jersey, like you, East Brunswick? Oh, that's right. Yes, yes. So and how did you, but you went to Michigan as an undergrad? I did. I wanted to go to a big school that was far enough away from- From East Brunswick so you couldn't, you know, five miles down the road to New Brunswick. That was a little too close. Yeah, I got that. I got that. What motivated you to go into journalism? So I was an economics major, but I was a writer and editor at our daily student newspaper at Michigan, and I probably spent, or not probably, I did spend far more time doing that than actually in the classroom and I kind of showed it in my grades. I was like that at the Daily Targon records. Yeah. Yeah, it was just a lot of fun. And I got internships. My first one was in Mackinac Island, Michigan. They have a weekly newspaper where the interns do everything from writing to delivering the paper. To reading the paper. Yeah, yeah. And then in my final year, final summer, I got an internship at the Oregonian in Portland covering tech in their business section, just sort of right at the cusp of the dot-com boom. And this was when the newsroom was probably 400 journalists. And so I was fortunate enough to get a job offer, and it was a lot more fun than most of the other economics majors who were doing consulting for Deloitte. Do you worry about, or the newspaper business in particular, the daily newspaper business has been kind of declining for decades, and it doesn't show any sign of turning around, does that worry you or how does that worry you? How do you fit that into a larger context of what media is evolving into? Yeah, I mean, it's very scary at the local level in particular. I mean, the newspaper that I work for, it still exists, but it's a very small fraction of the size of the newsroom. And what that means is there's fewer people looking at what local government officials and even members of Congress are doing. And I think there are some bright spots, so I live in Arlington, Virginia, and we have a great local news site that is self-sustaining, and they do good work. They're not the same size as our local newspaper would have been, but they do great work. And you have good nonprofit models like ProPublica. I mean, I think some of the work they've done on the Supreme Court has been very essential. But it concerns me, and I think you can't really look at misinformation without looking at the fact that you don't have as much institutional news gathering. And it always had flaws, but you at least had some sources that rigorously vet information. Right. And if nothing else, they also produce the material than that other people sift through. I mean, this is one of the things that I've always found kind of odd about particularly conservative critiques of the New York Times. Like, nobody is more obsessed with the New York Times than its conservative critics. And they read it like it's the Bible, and they are just constantly checking it. So it's kind of a win-win in that sense. Why did you go to law school? So I went to law school at night. I was at the Oregonians Washington D.C. Bureau when they had a D.C. Bureau. And I was really interested in writing about legal issues. And so I thought, you know, I'll go to law school, and maybe I'll be a legal journalist. And then I found that I really enjoyed the actual practice of law. And I had some experience, they give you hands-on experience in law school. And at the same time, I kind of saw, well, maybe newspapers are not the future that I want to work in. And talk a bit about your legal experience before you became a law professor. Yeah. So I clerked for two federal judges from very different political backgrounds. Judge Lanny Brinkema and Alexandria Federal Court in Virginia. She is an amazing judge. She's a former prosecutor. She was appointed by Clinton. She presided over the Zacharias Masawi, the 20th hijacker over his trial before I clerked for her. And she's really an amazing mentor. And then I went out to California and clerked for a judge on the Ninth Circuit who is a George W. Bush appointee, Mylon Smith, who also an amazing judge, who both of them really shaped me because they're both very, they're not politically-leaning judges. So Judge Brinkema would be really tough on criminal defendants. What she said to Masawi during his sentencing was probably what she's best known for. She said he tried to interrupt her. He had very little respect for her in part because she was a woman. And she said, you know, you're going to die without having a voice anymore because of what you did. And that was very not what you would expect from a Democratic appointee perhaps. And Judge Smith, he actually, before I clerked for him, he wrote the Ninth Circuit opinion in Alvarez finding the law unconstitutional. And he's, he votes probably, I would say probably as much with the liberals as the conservatives, which on the Ninth Circuit is pretty rare. So then I went to a law firm and I practiced First Amendment law and privacy and cybersecurity law. And then I came to the Naval Academy. Yeah. And how long have you been at the Naval Academy? Gosh, eight years now. Yeah. So it seems to be working out well. Yeah. Just to wrap up, you know, forecast, wish cast maybe, you know, the Supreme Court ruling that's coming up about, you know, the ability of platforms and social media platforms to kind of run their businesses the way they want to. What do you think is going to happen? You know, I don't know what will happen. I know what I want to happen. I want the Supreme Court to strike down the Texas and Florida laws and also set very firm limits on the ability of the government to pressure platforms and to moderate content. So say, you know, platforms can't be forced to keep content up, but they also can't be forced to take it down unless it falls into one of these narrow categories of unprotected speech. Whether that will happen, I don't know. I mean, my best guess is it's going to come down to Justice's Kavanaugh and Barrett. I think that... You're making me feel a little nauseous, right? Well, but I think that there are perhaps more in the Roberts camp of trying to maintain what the current Supreme Court has been doing, obviously, there are exceptions. But the current Supreme Court for the past 30 years has had some pretty robust First Amendment rulings. And so I think at least Roberts will be very cautious about reversing that. Do you subscribe to the idea, and I've heard this articulated by many people, and you know, it's not particularly original, but the person who told it to me in a way that stuck with me was Mark Tushnet, who is a self-described Marxist jurist, et cetera. But he said that, you know, in the long run, the Supreme Court isn't as important as either its proponents or its critics think, and that it kind of is a little bit ahead or behind society. But it's not the changemaker. It certifies or kind of accelerates trends. Do you think that's true? And if so, where do you think the American people are on this question of regulating online speech? Well, so where the American people are, unfortunately, is not great based on public polling in terms of the First Amendment. In general, there have been some recent polls where people that I think it's a majority now would like to see more restrictions on free speech. And I think the Supreme Court actually may be ahead of that. But it concerns me because the Supreme Court does sometimes reflect public opinion. And I'm worried that there's a lack of appreciation really across the political spectrum for the really fundamental principles of the First Amendment. So, and I think globally, we're really heading toward this real recession of free speech values. And I don't, so I think, frankly, the Supreme Court may be our best hope at this point. Yeah. Okay. Well, I hope it works out in the way that we both would be comfortable with. The book is Liar in a Crowded Theater, Freedom of Speech in a World of Misinformation. Been talking to Jeff Kassif. Jeff, thanks so much, not just for talking to me, but for, I mean, the books, the shelf of books that you're creating are just like, you know, fucking great. Thanks so much.