Americans lie on their résumés, in their dating profiles, in campaign ads, in their memoirs, and, perhaps most of all, on social media. Thanks to the First Amendment, they can mostly do so with impunity—or, at any rate, without fearing that the government will punish them for it. In most contexts, the First Amendment prohibits the government from restricting speech because of its message. It makes it difficult for public figures to win defamation suits. It precludes the government from criminalizing falsehoods that don’t cause serious harm. As a result, Americans enjoy broad freedom to say things that aren’t true. 

From one perspective, this freedom is a wonderful thing, or at least a necessary byproduct of the United States’ foundational commitment to popular government, individual autonomy, and free trade in ideas. But in an era in which misinformation is often described as a scourge, this freedom takes on a darker hue. What previously seemed like a feature of the country’s constitutional system can begin to seem like a bug. 

Is the First Amendment preventing the U.S. government from curtailing harmful lies online? More broadly, is a blind commitment to free speech impeding public and private institutions from responding as they should to the problem of misinformation? These are the questions that Cass Sunstein—a Harvard professor, a former regulatory czar in the Obama administration, and the most cited legal scholar in the country—takes up in Liars

The book is both succinct and far-ranging. In a brisk nearly 200 pages, Sunstein looks at lies through the lenses of ethics, political theory, and constitutional doctrine. In attributing the current informational crisis to a proliferation of lies, however, the book largely overlooks the role that governments, the media, and technology companies are playing as agents and amplifiers of misinformation. Sunstein’s account lets the most powerful actors off the hook.

REGULATING SPEECH

Sunstein argues that the United States should regulate lies more aggressively than it does, even as he acknowledges that in most contexts, it is better to allow false speech to be corrected in the marketplace of ideas. It is usually better to trust the marketplace, he says, because even a government operating in good faith will not always be able to separate truth from fiction and because some governments will use the authority to police speech to suppress dissent instead. (The “fake news” laws being adopted around the world, including in Brazil, Hungary, and Russia, are a reminder that this threat is real.) There is also a risk that falsehoods that are suppressed—rather than confronted head-on—will fester and become more dangerous. 

But these arguments are not always convincing, Sunstein says. Some falsehoods threaten serious harms that are not likely to be corrected organically in public discourse. With respect to these falsehoods, policymakers must consider regulatory responses. The U.S. Constitution is not always an obstacle to regulatory intervention, Sunstein observes. The First Amendment permits defamation suits, although it does place some limits on them. It allows the government to ban false advertising. It doesn’t preclude the government from prosecuting someone for committing perjury or impersonating a government officer. In all these spheres, the First Amendment allows the government to punish people who lie.  

At a Trump rally in Avoca, Pennsylvania, November 2020
At a Trump rally in Avoca, Pennsylvania, November 2020
Mark Peterson / Redux

The First Amendment should be understood to permit the regulation of lies in other spheres, too, Sunstein says. For example, the government should be able to regulate misinformation that threatens public health. It should be able to regulate doctored videos, even if they aren’t defamatory. These kinds of lies, Sunstein writes, cause serious harms that cannot always be prevented or remedied by responsive speech. People may rely on false claims about public health before the claims can be exposed as false. A video may change the public’s perception of a public figure even if it is later shown to have been doctored. The government should be able to respond to this kind of falsity—if not by prohibiting certain kinds of speech, then at least by labeling the lies as such or by requiring social media platforms to do so. 

First Amendment doctrine, Sunstein argues, too narrowly limits the government’s ability to tackle harmful falsehoods. One of the cases he takes aim at is New York Times v. Sullivan, from 1964, in which the Supreme Court held that a public official who sues a critic for defamation must demonstrate that the critic knew his or her statement was false or acted with “reckless disregard of whether it was false or not.” Many reporters, editors, and media lawyers regard the decision in this case as synonymous with press freedom, but Sunstein is not so enthusiastic. In an age in which anyone can disseminate misinformation across the world with the click of a button, he says, the case “looks increasingly anachronistic.” It makes it too difficult to hold people accountable for lies that do real damage, he argues. 

He also takes issue with the Supreme Court’s more recent decision in United States v. Alvarez. That case, from 2012, invalidated the 2005 Stolen Valor Act, a federal statute that criminalized lies about receiving military decorations or medals. (The defendant in the case was an inveterate liar who had falsely claimed to have been awarded the Congressional Medal of Honor.) The Court’s decision was based in large part on the concern that imposing penalties for false speech might chill true speech, a concern Sunstein shares to an extent. But he thinks that the Court’s decision in United States v. Alvarez was wrong, “even preposterous.” He questions whether any socially useful speech was really chilled by the Stolen Valor Act. In the name of defending the truth, he suggests, the Court merely ceded more ground to falsehoods.

AN AGE OF DECEPTION

Sunstein says Americans are living in “an age of deception,” an era in which lies have become ubiquitous. He is especially concerned about what he sees as the proliferation of defamatory lies about public officials, public institutions, and public figures. He mentions the “sustained attacks” on Hillary Clinton in the lead-up to the 2016 presidential election, unjustified attacks on the integrity of the media, and news stories that carried “false statements about Taylor Swift, Christian Bale, and Julia Roberts.” Lies about public officials and institutions undermine faith in government. Lies about other public figures—musicians, actors, and athletes, for example—can ruin people’s lives. “Many people are now being subjected to ‘cancellation’ on the basis of lies,” Sunstein says, although he does not offer specific examples. His concern extends beyond defamatory statements. He argues that false statements falling short of libel are harming individuals and society. He does not supply evidence that lying is more common today than it used to be. Still, he writes, “the problem is serious and pervasive, and it seems to be mounting.” 

Sunstein is especially concerned about all of this because social media allows liars to disseminate their lies more quickly and broadly. But he is principally worried about the liars, not the social media companies, and in fact he casts the companies more as heroes than as villains. “To their credit, some of them are doing a great deal already” to combat misinformation, he says, and “their creativity offers a host of lessons for public officials.” (Sunstein discloses upfront that he has been a consultant to Facebook, including on some of the issues discussed in the book.) The companies, in his view, are doing “excellent work”—even if they should do more, such as fact-check political ads, strengthen their prohibitions against misinformation relating to public health, and suppress a broader range of doctored videos. 

Americans are living in an era in which lies have become ubiquitous.

Sunstein has a similarly rosy view of the government’s relationship to lies. He does briefly mention that U.S. President Donald Trump pushed misinformation about the 2020 presidential election. But the lies of government officials are mostly beyond the scope of his inquiry. There’s no mention here, for example, of the false claims—all made by senior government officials at one point or another—that Iraq was hiding weapons of mass destruction, that Muslims in New Jersey cheered the 9/11 attacks, that the CIA did not use torture, that drone strikes have not resulted in civilian casualties, or that wearing masks won’t help against COVID-19. Sunstein says he’s especially focused on falsehoods that undermine the democratic process, but it is difficult to understand why a tabloid’s lies about a celebrity imperil democracy, whereas the official lies that misled the country into war do not.

Social media companies, too, bear a great deal more responsibility for the age of deception than Sunstein acknowledges. Their ranking algorithms can privilege sensational or extreme speech and channel users into echo chambers where conspiracy theories flourish. Their decisions about which kinds of interactions to allow on their platforms can have similar effects. And their policies relating to ad targeting can determine how broadly misinformation spreads and whether the misinformation can be corrected by others. Social media companies—like governments—undoubtedly have important roles to play in addressing the problem of misinformation. But Sunstein is wrong to conceive of them only as firefighters and not also as arsonists. 

LIAR, LIAR, DEMOCRACY ON FIRE

Still, Sunstein’s policy proposals are worth considering. His prescriptions concerning content moderation are modest but reasonable. His analysis of the Supreme Court’s case law relating to false speech usefully pulls apart the various factors that courts should weigh in deciding whether regulating misinformation in any given context would be consistent with the First Amendment. (The factors include the speaker’s intent, the magnitude of the harm that could result from the false speech, and how soon that harm would occur.) He is plainly right that loosening current doctrinal standards would create space for regulation—including of false speech that does not rise to the level of defamation. 

But he largely glosses over the ways in which new regulations could be abused. Even today, under a speech-protective doctrinal framework, state legislatures are fighting supposed misinformation by, for example, restricting public schools’ ability to teach students about systemic racism. And despite the Supreme Court cases that Sunstein criticizes, it is disturbingly easy for powerful people to use defamation lawsuits, or the threat of them, to suppress important stories. Devin Nunes, a Republican member of Congress from California, has filed a slew of lawsuits against journalists and ordinary citizens who have criticized, mocked, or reported on him, even suing the anonymous users behind two obviously satirical Twitter accounts, @DevinNunesMom and @DevinCow. And the Hollywood mogul Harvey Weinstein was able to use the threat of defamation litigation to stave off, for years, the news reports that justifiably ended his career. 

The United States should regulate lies more aggressively than it does.

Sunstein isn’t oblivious to these concerns. At one point, he suggests capping damage awards to mitigate the chilling effect of defamation suits. But his analysis focuses on the costs of the current doctrinal framework and mostly skips over the benefits. It leaves the impression that Sunstein has not fully accounted for the possibility—the certainty, some would say—that making it easier for public figures to sue critics for false speech would make it easier for them to suppress true speech, as well. 

At its best, Sunstein’s book offers a host of useful ideas about how First Amendment doctrine and content moderation policies might be adjusted to encourage governments and technology companies to address lies. But Sunstein gives the most powerful actors a free pass. A more convincing account of the age of deception, and a more compelling policy agenda, would place less emphasis on the mendaciousness of ordinary citizens and more on the governments that spread falsehoods—and on the media organizations and technology companies that amplify them.

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  • JAMEEL JAFFER is Executive Director of the Knight First Amendment Institute at Columbia University and former Director of the Center for Democracy at the American Civil Liberties Union. He is a member of the Aspen Institute’s Commission on Information Disorder.
  • More By Jameel Jaffer