(theme music plays) GRAHAM: Welcome to P&P Live.

I'm Brad Graham, the co-owner of Politics and Prose, along with my wife, Lissa Muscatine.

And we have what promises to be a very engaging, thoughtful event for you this evening with law professor Cass Sunstein in conversation about his new book, Liars, with his also accomplished wife, Ambassador Samantha Power.

Cass, who teaches at Harvard, is often described as the most influential legal scholar of our time.

He's certainly the most frequently cited and the most prolific.

In Liars, Cass addresses that disturbing spread of falsehoods today in political discourse on social media and elsewhere and considers whether and how the government might better limit such false speech.

This, of course, is a challenging issue, especially in a nation committed to free speech.

But Cass provides a compelling framework for how to think through the matter and covers a lot of ground in just 133 pages of clear, focused text that are well worth the read.

Joining Cass this evening, will be Samantha, who's also been at Harvard and on the faculty of two schools there, the Kennedy School and the Law School.

And like her husband, she, too, served in the Obama administration, first on the National Security Council, advising on human rights and then as US Ambassador to the United Nations.

And she also has been appointed to run US.

USAID in the Biden administration.

On behalf of Politics and Prose Live, please welcome Cass Sunstein and Samantha Power.

POWER: Hi, everybody.

It's great to be with you.

Because of this unusual circumstance where the moderator is the spouse of the speaker, you might imagine that I've asked many of the questions that I actually have over the dinner table.

And so, I'm going to take what I think are the most interesting ones and reprise them.

And Cass and I will go back and forth a little bit.

So, thank you all for being here.

We are, we've just moved to Washington.

We've got boxes and things behind us here.

Although Cass's room looks better furnished than-than mine, we're in separate parts of the house to try to make this a real kind of moderator guest discussion.

But there's nothing better to do your first week than when you're living in Washington than to do an event with Politics and Prose, because where would we be?

OK, Cass.

So, I know I know I haven't done an intergalactic search in terms of the answer to this question, but or and I don't really have the authority to make a declarative statement like I'm about to make.

But it would seem to me that the three most productive actors on planet Earth during the COVID pandemic were Moderna, Pfizer and Cass Sunstein.

So Moderna and Pfizer, because realize that that's where in America we're benefiting from the speed with which they developed the vaccine, which is historic and hope that our country can recover health and health wise and economically.

You because you just and I know from being married to you, you don't waste a minute in most days anyway.

And are, as was mentioned, very prolific.

But-but there's never really been a period, I think, in your career as productive as your quarantine.

And it wasn't all smooth sailing.

And so I wonder if you could just share a little bit and don't sort of rush through the titles because the range of issues on which you have produced books in the last year is really interesting.

And I will say that I know I'm massively biased, but it is not just about being prolific, the reviews for each of the books that have come in so far have been off the charts powerful.

So, I'm wondering if you could say a little bit about what changed for you because everybody in the audience has experienced some version of a quarantine or lockdown, no matter where they are in the world probably, or has been affected by the pandemic in some way.

So say a little bit about what the last year has meant for you.

And tell us just give us a taste of a few of the most important books that you have coming out here in the coming days.

CASS: Well, thank you, Ambassador Power, for those kind words and thank you for doing this, especially in light of your very busy schedule.

Well, in late February of 2020, maybe March, I started to get sick and I was told by my doctor that it had to be the flu, that COVID just wasn't in the United States sufficiently.

And then I started to get sicker and the doctor said it's definitely the flu.

No one's getting COVID, really.

Maybe 60 people Then I got sicker.

And an emergency room doctor said, you have Covid.

There's no question about that in my mind.

I'm seeing it explode in the emergency room.

The primary care doctors don't know that, but it's definite.

So long as you're basically OK, don't come in.

I advise you to stay home.

And write.

Now, if a doctor tells you to write when you're feeling really, really sick, you don't say no, maybe that's medical advice.

It's why I wrote as much as I did.

But this particular book, Liars, is an outgrowth of basically decades of being baffled about the issue of the pervasiveness of falsehoods, which are often extremely damaging, the commitment to a robust culture of freedom of speech, which we thank goodness have, and the words of Oliver Wendell Holmes, which suggests that if you falsely cry fire in a crowded theater, you could be regulated.

Well, a lot of people are falsely crying fire in a crowded theater.

And what are we going to do about it?

So that question posed in the midst of a culture that in some respects has gone haywire with respect to truth.

That was what focused me on this particular book.

Yeah.

POWER: That wasn't like we're going to come to this particular book.

But I, I, I would like we're-we're helping support a bookstore here.

They're helping support this book of yours, of course.

But just say a little bit about what-what else you have in the pipeline before we dive in to Liars.

CASS: Before we start that one, so I have a book coming out called Noise with I think the greatest my view, the greatest thinker since Charles Darwin.

That may be biased, but that's my view.

Daniel Kahneman, who, and I'm not the only one who thinks that it's a book about human error.

And this book has been a labor of what's the right word, love, and angst for three years plus.

And for Kahneman himself, you could see it as a book of love and angst of 30 or 40 years.

He's been struggling with these issues so that when we finish this year, I think without COVID, we might not have finished it.

POWER: Could you, you, you, you said to her, just slow it down and tell people what the book is about.

CASS: So, the book Noise is about the following.

You go to a doctor, the doctor says, I just gave a story like this, you don't have COVID.

Then you go to another doctor.

The doctor says you have Covid, you go to a doctor.

A doctor says, I think you have lung cancer.

Then you go to another doctor.

The doctor says, I really don't think you have lung cancer.

That's noise.

You go for benefits that maybe you're entitled to under the law.

You ask the person who worked on the Social Security Administration says you're in, congratulations.

You've got a big check coming every month.

Then you go to another person just to confirm it was right.

The other person says, sorry, you're definitely not in, no checks for you.

And that phenomena of noise, which means variation across people who should be thinking the same thing, is pervasive.

It's everywhere.

It's a secret sauce for unfairness and for really high costs.

So, if an employer is trying to evaluate people and if the employers in a good mood and says that person's getting a promotion, but the same employer is seeing the same person and maybe it's raining and dark outside, that same person says no, no promotion and not because the person is different just because it's raining outside.

That noise, which is across people and within each of us.

We are noisy.

We might fall in love on Monday morning because we're really ready.

But on a Monday afternoon, we might not just because we're kind of preoccupied about war or something, that's noise, romantic noise that's not in the book.

But this problem of variability and decision making, which is an unexplored country, that's what the book Noise is about.

It's more broadly about human mistakes and where they come from, biases and characteristics.

But the general the intense focus is on the unexplored country.

So that's Noise.

POWER: You want one more briefly?

CASS: OK, I'll tell you one more, though.

We got more than one book that came out at the same time as Liars is called This is Not Normal.

And the basic idea promoted really under the confluence of circumstances of the last five years where there's been a pandemic and economic distress and some of our political ups and downs is the one you perceive as, as, as normal often determines what we find acceptable and unacceptable.

So, if you're in a world of pervasive, let's say, racial horror, that if people discriminate on the basis of race, you might think it's not so bad, it's not like slavery.

Or if you live in a world of pervasive sexual injustice, where there's a caste system based on gender, a little sexual harassment might not trigger much opprobrium, which means that as things get really bad, things that formerly seemed bad now seem OK. And as things get better, things that seemed acceptable, like to my parents generation, would seem foreign to our generation.

And this helps explain the rise of Nazism in Germany.

It helps explain the civil rights movement of the 1960s.

It helps explain the power and influence of Ayn Rand, who's had a kind of frequently unobserved effect on American culture.

It helps explain the power and the failure of radicalism of multiple forms, forms, and it helps explain the success of the American Revolution.

So, This is Not Normal is about that.

POWER: So, I think the title of this is not normal applies to how quickly Cass writes books so quickly that even his adoring spouse can't keep up with reading these books because he writes them more quickly than I can manage.

But I did I did think it was worth just giving because he's putting so many ideas out there that I think are so, so important.

Turning now to-to Liars.

So how Conté asks about my experience as UN ambassador and this question of whether or not there were shared realities or shared factual predicates and sort of, in effect, geopolitics in the age of disinformation.

And I just share this anecdote because it's indelibly imprinted in my mind.

But the Russian Federation, which had had, already at the point of which I refer, had already invaded Crimea and tried to take it over and said plain-faced, its representatives, it said, no, we're not in Crimea.

No, no, we're not in Ukraine.

What do you mean what are you talking about?

And you'd have my French colleague said sometimes the representative of the Russian Federation acts as though he believes that photography was never invented or that the Internet does not exist or that reporters do not exist because it was just straight up black is white and up is down, over and over, over on Ukraine.

Then in Syria, the Russian Federation began to become involved in what amounted to the kind of carpet bombing of Aleppo.

And so too, in the UN Security Council, the Russian ambassador, very enlightened, sophisticated individual representing, of course, Putin's government, began to say, no, no, we're not involved in the bombing of Alepp... What are you talking about?

And the moment that I am recalling that was so vivid to me was my Russian counterpart describing what was actually happening in Aleppo, which was actually from his standpoint, from what he said, Russian troops going in and providing humanitarian assistance to people who are being besieged by terrorists only.

And it was as if he was describing the Russian Federation as the Red Cross.

And-and in the Security Council, you speak in your in one of the recognized languages.

And he was speaking in Russian.

And I had my headpiece on and he spoke in Russian it was being translated.

And then as he described the charges that were being made or the claims being made by me and my colleagues or by the independent media, he was speaking Russian, Russian, Russian.

Then he said in Russian, that is only and then an English fake news.

And it was the first time I ever heard this.

And I was and I said, "Fake news is weird."

And then and then, of course, Russians interfere in our election.

And then we ended up having our own president using this term and so forth.

But the reason Hals' question is so interesting is that...

I think I was so naive in retrospect in believing that this phenomenon of state sponsored lying would tend to be something that you could associate with the Soviet Union or now this modernized Putinized version of what had occurred before.

You know, it was something we look back at Cold War claims, you know, in the airbrushing of history, and it just seems laughable.

And then suddenly it's the very tools that the Russian Federation are using, calling journalists the enemies of the people, you know, sort of doing away with the idea of truth and fact.

We all remember Stephen Colbert and truthiness and, you know, and his early recognition of how much more pronounced this was becoming.

But let me just start with a kind of basic question.

You've been a constitutional legal scholar for a very long time.

How has the prevalence of lying and the kind of neutralization of the idea of truth and facts?

Just talk a little bit, almost anthropologically about the arc of that?

And I ask because it would seem to me that First Amendment jurisprudence, by and large, was shaped in a very different era, in an era where we had umpires and editors, where there was no such thing as social media, where you might have had chat rooms of different kind of like in-person chat rooms or even eventually the Internet got created in parts of the dark web, but not necessarily instantiated in heads of state, propagating those lies and conspiracy theories so just talk about lying as a as a social force before we get to the question of how regulation and law should catch up.

CASS: OK, so I think it's reasonable to say that our modern system of free expression was not born with the founding, was not born with the civil war, was not born with Franklin Delano Roosevelt.

It was born in 1964.

I think that's fair to say where in 1964 the Supreme Court issued its decision in New York Times against Sullivan, which was like a bombshell.

What the Court said was that basically, if you lie about a public figure, you can be held liable only if you knew what you were saying was false or you proceeded with reckless indifference to the question of truth or falsity.

Now, you might think that gives some space to control liars.

And that's true, but not a whole lot of space to control liars, because if there is a lie told about, let's say, an entertainer or a mayor, it has to be shown with the speaker knew it was false or that the speaker certainly should have known that it was false.

And that's hard and it's expensive.

So after New York Times against Sullivan, the breathing space for falsehoods, including lies, grew a lot.

And there was something really admirable in what the court was doing.

It was saying if you if you punish falsehoods, you're going to intimidate truth tellers.

And this was a civil rights movement case actually saying you need to open up a lot of space for.

Flash forward, if you would, from 1964 to 2012 when someone who ran for public office, guy named Alvarez, said, I won the Congressional Medal of Honor.

Well, that was a lie.

He didn't win the Congressional Medal of Honor.

What he wanted was to win votes and he thought that he could do it that way.

There's a law called the Stolen Valor Act which says you can't lie about having one stolen.

We can't lie about having won the Congressional Medal of Honor.

And the Supreme Court said extending its 1964 ruling, that even if you lie about winning the Congressional Medal of Honor, the First Amendment protects you.

Pause over that one, if you would.

The court says we don't have a ministry of justice here, referring to George Orwell's 1984.

And it said, liars: not pants on fire.

Liars: correct them, don't punish them.

If you put the '64 decision together with the 2012 decision, then our system of free expression opens up a lot of space, not only for falsehoods.

Let's say the earth is flat.

The Holocaust didn't happen, but also for lies saying I was, you know, I won Olympic gold in the Olympics, or I was an incredible warrior.

It was unbelievable what I did.

And the Supreme Court seems to say that kind of things protected.

Now, flash forward, if you would, the current period, maybe the last three years where that 2012 decision seems an alternative universe, doesn't it?

Well, what the Court is basically saying is that even knowing falsehoods, the response to them is to correct.

Well, good luck with that.

If there's a falsehood to say, you know, if you take this drink...

I have a little coffee here... if you take this drink, then you'll never get COVID-19.

Or if someone says something about don't buckle your seat belts, they're going to kill you because they have chemicals in them, they're designed to kill you.

The idea that that kind of thing is A) protected by the First Amendment isn't self-evidently a really good idea.

And B) the idea that we should take that notion as a shining star in our culture.

I'm speaking now about Facebook and Twitter and YouTube.

That's not really the best idea either, where if you say, you know what, the polls are closing at 2:00 in the afternoon and don't come after or if you say something like COVID-19 isn't real or that the best response to the cancer threat is to smoke as many cigarettes as you can.

The notion that Facebook and Twitter and YouTube shouldn't even consider doing something about that.

I think Shakespeare that way madness lies.

So, to rethink both the 1964 and 2012 ideas is not an anathema but essential.

The result of that rethinking is something on which reasonable people can differ.

But the notion that the nature of reality itself... now I'm invoking an essay about Arendt... the notion that the nature of reality itself is something which a culture has no entitlement to try to safeguard is a precious thing.

That is a recipe for multiple kinds of disintegration.

POWER: So, I guess that that was a great history of the constitutional landscape and sort of how we got where we are.

But do you believe that people are lying more in 2021 than they were in 1961?

CASS: I need some data to know the answer to that.

So, you knew I was going to say that, didn't you?

That whether there's more lying now than '61 is unclear.

The adverse effects of lies is in some cases are in some cases more severe than that.

And I want to phrase that carefully.

So, I put in some cases, because you can spread a lie like that in ways that in 1961 you couldn't.

Give me a little data that suggests the perniciousness of lie spreading.

If I said right now something about, let's say, a musician, Taylor Swift, I said something, let's say unkind and false.

And then I followed it by saying that was false.

I said that to just illustrate a point.

Or if I said something right now about health, some product and it's beneficial or negative effects on health.

And then I said right after that, that was a lie.

I said that to make the point, the human mind remembers that long after and remembers that as maybe true, even if people were told in real time that it's false and was said to be true only to make a point.

It's called truth bias, which means the human mind codes statements it hears as basically correct, even if people are told also no, not correct.

And if you're following the truth bias, as it's called, is really insidious, much more so in 2021 one than it was in the 1960s, because you can put something on Twitter, and on Facebook, even if it is a false label associated with it, it will get in people's heads.

And I'll give an example here... we'll have a political feature, forgive.

And think you, Ambassador Power, will forgive, which is the statements about Secretary Clinton's emails were much more effective than they ought to have been, because even people who thought the statements about her emails were false or exaggerated or something had a little voice in their head thinking... her emails and associated that with something terrible.

And even if they knew on reflection that wasn't true, there was a kind of affective commitment inside those very heads to the lie.

And that's worse now than it was 50 years ago.

POWER: I guess that's the truth bias point, which-which you and I've talked about, because we've both been lied about a lot in the in the media, which is not a not a huge amount of fun, in part because it does stick.

There's a residual "there's something going on there," even if it's a completely fabricated... CASS: I think about the lies about me, but not the lies about I think about the lies me, oh maybe that's true.

Even though I quite know it's not right.

POWER: But that's a little bit in tension, that-that set of findings, which I'm familiar with, is a little bit intension with some of the experiences that I have had and maybe some in the audience in illiberal in-in countries that have been governed repressively or in an autocratic or authoritarian way for some time.

And there the effect of constant state sponsored lying.

And maybe there are distinctions as to who's doing the lying, which we've only had this flood of lies from the highest office in the land.

We hadn't had an experience of that before.

Lies have been told, of course, from the highest office in the land, but never where there was an abacus keeping and where that no one was running into the-the many, many thousands.

But in sort of societies where that is a prevalent practice and citizens... there's come some kind of point at which citizens just throw up their hands and say, not only can I not believe the state, obviously, because we've been lied to a year in, year out, but I don't really I don't really know what-what to believe.

And that's why I think Colbert's this idea of truthiness is so powerful.

And I think what-what the last president did is-is-is very powerful and has such a corrosive effect is that I wonder if you kept if-if the lying kept happening, whether truth bias, which is a reflection of a kind of innocence yesteryear where I think there was, if not less lying, less prominent lying or as you say, lying, that went less far.

But-but it seems like truth bias is one risk is that you hear something and it sticks.

Even if you kind of have been told that it's false or even if you know it's false, there's just something about it that stick.

But this other risk of a kind of nihilism, you know, and we and we see this on science.

We see it on vaccines.

We see it on climate, on, you know, people saying things that are recognized on a continuum.

Some are saying things where it's they're motivated and-and they know that what they're saying is false, like tobacco companies back in the day saying things that are self-interested and then some in part because they've imbibed falsehoods about science, are saying things.

And it's their deepest conviction because they've come to believe something.

But isn't the-the kind of nihilism with all the lying in the air, isn't-isn't that also a danger that that I mean and I think is where the Biden, President Biden is sort of trying to denormalize falsehood.

And when Biden says something that is inconsistent with something said before, the press are leaping on it and-and we can all hope that there will be corrections and correction boxes and correction statements to try to recalibrate this idea that leaders tell the truth, Democratic leaders tell the truth, and that lying is not now the new normal, as you would put it.

CASS: OK, you're completely right.

So, truth bias has a tendency to believe that what we hear is true and that's an evolutionarily sensible thing.

But I had a friend in college who I learned after two months he was a pathological liar and everything he said was false.

And there was his name was Scott, and everything became vertigo.

So, Scott would have (inaudible) his friend was to live in vertigo.

And if you live in a culture where leaders are completely unreliable or if you have a politician or a boss who's completely unreliable, it's vertigo.

In some of the philosophers doing this book made me have to think or get to think about the philosophical concerns about lying.

And it's really interesting to think what's wrong with lying.

One fundamental point, which is not what you're saying, is that a lie treats people with disrespect.

It's a little like forcing people to do things.

It's the same and treats them as things rather than as ends and treats them as objects.

That's what a lie does.

A politician who lies treats citizens as things.

That's disrespectful.

But another thing that's wrong with lying is just what you're saying, which is its consequence.

Even if it didn't have that disrespect in it, it turns a culture into one in which people can't put their feet on the ground because they don't know what's so.

So if you learned that the scientists are-are unreliable or random or self-interested or something, it's a world of Scott.

My high school, my college friend-ish, friend-ish, friend for a little while.

And if we're living in a world of Scott, let's call it, the badness of it isn't that we think, oh, I guess Scott was kind of telling the truth.

It's that we have no idea what to believe.

And it's essential whether it's a family, spouse or a town or a nation or a workplace to have a basic commitment to truth telling, even if some people joke and exaggerate.

And if you're too hard on falsehood and lie, you probably don't have a sense of humor.

But if you're too soft on it, you probably don't have a moral center.

POWER: So you've alluded to kind of echo chambers and the viral spread of lies and falsehoods.

At the outset, you also touched upon whether you can shout fire in a crowded theater and-and what's protected and what isn't.

But we have a couple of questions from the audience that I'd like you to respond to, which I think touch on a couple of these issues, which is I think everybody in the audience is living in the new normal, so you could just assume that everybody knows echo chambers, dark web, social media and so forth, and so it's Howard Silvas question, which is one I was going to pose is given all of this, given what you're saying... can Oliver Wendell Holmes is a marketplace of ideas work anymore?

This idea that the best and antidote to a falsehood is more speech.

When people are-are cohabitating and QAnon and being told that the election was stolen and be presented with phony photographs of this and that.

And they're not going to get the infusion of that alternative viewpoints.

Or if they get it, it'll be disqualified because of where it comes from, 'cause it's The New York Times and seen as....

So, what is the marketplace of ideas?

Does that just get shelved or is there some modification that you would recommend?

CASS: Probably the latter.

So, the-the proposition that the marketplace of ideas will work in correcting falsehood, we don't really believe that in the sense that perjury isn't allowed.

We don't say someone can perjure themselves and that it can be corrected.

If someone goes to the FBI and says their next-door neighbor has a... an opium den and they're selling a lot of material, illegal material.

You see I'm very sophisticated in how I call material.

They're selling a lot of opium there, let's say.

We don't say marketplace of ideas that can be corrected.

If someone says buy my medicine and you're never going to lose your hair, that one is not allowed.

We don't say marketplace of ideas.

So, we know that in many cases there is imminent and highly likely harm that can't be adequately corrected through popular speech.

And Holmes should have known that and probably did know some version of that.

So, the circumstances in which the marketplace of ideas work, we're learning increasingly about.

So, if you are really committed to what you think, either because everything you know points in that direction or because you have a strong emotional commitment to it, good luck with dislodging that belief.

If you tell people that their strongest moral commitment is false, let's say it's a moral commitment that has a factual component, it's not going to move.

It may even entrench.

And that might not be a terrible thing.

I believe dropped objects fall.

If you tell me they don't, I'm going to say, you're making a joke it isn't very funny.

If you tell me the Holocaust didn't happen, I'm not going to say show me your evidence.

I'm going to say what you... something like what's your problem?

And I hope in both those cases I'm not irrationally committed to my beliefs.

But if people have a very strong commitment, let's say, to thinking that climate change isn't real or that the ozone layer hasn't been at risk, and let's just stipulate that those views are false.

It is a problem for the marketplace of ideas that their belief will be relatively impervious to correction.

We might say, even though it's relatively impervious to correction, we're not going to censor it.

And I would say that.

That to say climate change isn't real or the market or the ozone layer isn't... hasn't been at risk, those are falsehoods.

But we need to allow them for 17 different reasons in a democracy.

So, we need to isolate the moving parts that make false beliefs impervious to change.

And then we need to isolate the moving parts that would justify some sort of response to the false belief.

The latter something to do with what harm does the false statement, let's say, cause how fast is it, the harm, and how likely is it?

And what's the state of mind of the speaker if someone innocently says, you know, I think Bill Russell was actually a really bad basketball player.

That's extremely false, but it's not harmful.

And the example was just an innocent statement.

It wasn't a malicious lie about the greatest athlete who ever graced the planet.

POWER: You were talking about standards, rather than kind of black letter revisions, right?

To some underlying statute.

And maybe hopefully we'll have time to talk about Section 230.

But-but I guess a worry there is how does party-ism and polarization then graft onto this?

Right.

Because, you know, sort of my lies are within the bounds.

Your lies aren't, right?

I mean, this is what we've seen a little bit.

CASS: OK, let's have a bit... you're pressing me, so thank you for this.

Can I make a confession about the book?

When I started the book, I intended it to be much more of a polemic in favor of control on damaging falsehood than it ended up being.

The book ended up being much more a celebration of freedom than I wanted it to be.

The power of the argument pressed me in the direction of freedom, freedom, freedom with qualifications rather than a polemic about the damaging effect of false falsehoods.

Having said that, I think we have a framework now.

I hope, I'm hopeful that we have a framework that is not differentially usable by political parties.

And here's the framework.

First question, did the person say make the statement knowing it was false or not?

There's a big difference between saying, for example, that someone whose last name is Trump... did acts in order to damage them.

And innocently believing that person did "X".

The first is much worse.

And if you deter, defer, deter the first, it's not so bad.

But if you deter the second, it's really bad.

You're deterring people who are innocently saying things about public figures.

And that's very damaging to a system of free expression.

So, first question is, what's the state of mind of the actor?

And of course, that might not be completely knowable, but we have some tools that are horrible for figuring that out and maybe we'd have a presumption of innocence.

That's usually a good idea.

Second thing, what's the magnitude of the harm?

If you say something that's false as a result of which thousands will die, then the argument for restricting is much stronger than if you say something which if it's false.

Thousands of people wrongly believe that Wilt Chamberlain was better than Bill Russell.

There are a lot of falsehoods out there that are harmless to say something about um, about how cold it's going to be tomorrow.

That's not, you get the point.

Then the third question is, how imminent is the harm?

Is the harm going to happen tomorrow or is it going to happen next year?

That really matters because if it's going to happen next year, there is the marketplace of ideas is more likely to kick in.

If it's going to happen tomorrow, then good luck maybe with the marketplace of ideas.

Now that framework, state of mind of the speaker, magnitude of harm, imminence of harm, it's not quite like a knife that can cut through various problems, but it's a framework that can help Facebook and Twitter and YouTube, which are not respected, restricted by the freedom of speech principle of the Constitution.

Uh, makes some sense of what their obligations are, respectful of freedom of speech, but not allowing people to sell products that are going to kill them tomorrow.

And it can help the US government work, or states... Maybe that's better because they're the ones that are generally restricting thought, et cetera, act in a way that's broadly very respectful of the system of free expression, but not allow fraud and not allow lies to the authorities.

POWER: I want to ask you a little bit about persuasion.

And then once this question of what is effective, actually once lies are out there in the bloodstream.

So, Christina, sticking to the idea of rule-making and what is permitted in states, Christina invokes something that's been on my mind, of course, given the rise in hate crimes in this country and given the radicalization and the increasing propensity for violence among those who are exposed to falsehoods.

Christina Sorona asks.

In the German constitution, which is written by Americans following the law, the Nazi party is prohibited.

Nazis are allowed to exist and propagate their hate in the US under the protection of First Amendment.

Given the increase in racial hatred in the US, should advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence be prohibited?

And I should say, Christina, those are very different things...

Discrimination, hostility, or violence.

So, Cass will probably parse that a little bit.

But-but the broader question of the link between falsehood and incitement, because also the incitement standard, which we haven't really talked about, require the threshold is really high.

Right.

Do you really have to be sort of directing and actually and the generalized incitement that exists on social media or in the dark web is different.

It's not.

Hey, Bob, I'll meet you at the corner and we'll go and do this together or.

Hey, Bob, why don't you do this to-to Muslim Americans or Asian Americans?

It's it's-it's-it's broader than that.

So-so take Christina's question and maybe just briefly address this this other question of incitement now and how-how we should think about that.

CASS: I'm most comfortable with saying that if people are making statements which are directed to incite and likely to incite imminent lawless action, that's regulatory.

So, if you go to someone's house and say, let's burn it down in circumstances in which less likely to happen in the very near future, under our current constitutional standards that can be regulated and that that seems agreeable among diverse judges and sensible.

And we can think of some of the things that have happened in, let's say, recent memory.

I'm talking about any particular statement by any particular person, but a category of things that that that are like that likely to incite imminent lawless action.

OK, it's harder if people say things that are likely to incite lawless action, let's say, in two weeks.

The reason it's harder is that there's room for corrective action, both in terms of the use of law enforcement and in the form of cooler heads participating in the conversation.

I don't think we've adequately gotten our minds around exactly how to handle that problem in the Internet era.

So, whether certain kinds of things which are technically incitement, meaning they are inciting violence, but it's not likely to happen today or tomorrow.

It's likely to happen next week, whether that's constitutionally protected.

There's a discussion at least to be had there Learned Hand thought so.

That is he thought that if you're saying, you know, burn down the joint, that that's advocacy of legal action and he would not protect that.

I think I'm not with Judge Hand on that.

But this is something which in the modern era is on free speech principles, I think harder than we previously thought with respect to racial hatred.

There's an old doctrine called the fighting words doctrine, which has never been overruled.

So, if you go up to people and say certain kinds of things, the Supreme Court has never rejected its previous conclusion that if it's if it's going to create a fistfight, you can stop people from saying those things.

Now, that raises nice puzzles and hard puzzles.

We're really at the frontiers of First Amendment theory there.

Whether allowing restriction of racially inflected hate speech is a cure worse than the disease or whether it's the right medicine, something that different cultures have made different judgments about.

I would want to err in the United States on the side of freedom, but that's a general proposition.

Then you could give me a particular case where I would be with the spirit of the question.

So, if in a university setting, let's say it's a public university, a professor starts wielding the N-word as a word of appropriating against a student who delivered a paper late... to punish that teacher would, I think not on current principles, be inconsistent with free speech doctrine.

And I think that's just fine, that a teacher can't do that and be a teacher, even if certain kinds of hate speech would be acceptable in other settings.

POWER: OK, so, again, we have a short period of time.

I'm going to take these persuasion questions together.

And then if we have time, which I hope we will, I'd like to just ask a last question about the tech companies.

And I will say in the context of what you've just said, which is still retains a very high bar for taking speech down or regulating speech and the incitement context that in countries like Myanmar, where Facebook was the place where lies were propagated, it was not at all directive.

You could have easily thought that temporally you know it was a couple of weeks out, from what was planned there.

Maybe you could argue that there that the space for corrective dialog didn't exist there and so therefore it still would have been OK to take it down.

But both there and in Sri Lanka, massive violence fueled.

And I thought an adviser to the Sri Lankan president put it best, where he said the germs are ours, but Facebook is the wind.

The germs are ours, but Facebook...

Very powerful.

So, we have all these great questions about what's so what do we do once a lie is in the wind?

Kelly asks about COVID vaccinations.

Cass is an adviser to the World Health Organization and has been actually written a fair amount about vaccine hesitancy.

But this this asks the question in a different way.

10% of people are opposed to Covid vaccines another third are on the fence.

The underlying reasons are inspired by conspiracy theories, including that COVID is a hoax to allow the elite to hijack our freedoms.

How can we reach people?

So that's one persuasion question.

Another is what can be done to undermine the strength of truth bias?

So that's another persuasion question.

And you could just pluck from this as you see fit.

And then Kelsey asks, have you seen any examples of effective steps or actions taken by other governments to address lies in the public sphere that you think would-would travel that-that where we could learn from other countries in the US?

So, this is all around the kind of what do we do about it?

CASS: OK, so with respect to truth bias, if you know the source is not reliable, the truth bias is much weaker.

So, remember my friend Scott from college?

If it's Scott, your Scott might be, you know, The New York Times or Fox News or something.

But if we know the source is unreliable, then the truth bias is-is weaker.

There's a great book called How to Win Friends and Influence People.

It's brilliant, though, it was a long time ago before modern behavioral science and it says you can't win an argument.

Don't try.

If you actually win on the merits, the person is just going to hate you, so don't try.

But then the author says you can get people to want to agree with you.

That's a brilliant thought.

So, with respect to persuasion, including on vaccination, to listen to them, to make an alliance with them on one or another point, if you can do it credibly to show them respect is-is a way in.

So to say to them, "You're all wrong, boy have you bought into a lot of foolishness" is not helpful.

For them to say they don't trust corporations or something.

If that's their concern, then to ask why and then they'll probably say something intelligent and you might say, you know, you have a point there.

And then to say something about if we don't get vaccinated, then there are a lot of older people who are going to die.

Probably they care about that.

So, I dealt with I did a book on conspiracy theories a number of years ago, and I was interacting after the book with a number of people who believe in what I believe to be false conspiracy theories.

And they are really smart.

And what they really want to do is to be listened to.

And if you listen to them, then you're, you can have a discussion.

And on a couple of things, they might think, you know what, you're wrong on most things.

But in that one, you're right.

I'm going to get the shot.

POWER: So, does it mean we have come from a period where conspiracy theories could exist in their own echo chamber and occasionally somebody would pop out of that echo chamber and act potentially upon them in ways that were destructive?

I think what's the question about the Covid vaccines is-is reflective of as of course, is what happened on January 6th is it's getting mainstreamed very, very quickly now.

And the effect of a conspiracy theory's power over a particular community can be lived, that that effect can be lived by all of us.

It's not relegatable when it involves something like an infectious disease or a pandemic.

And that's challenging.

And Cass and I have an ongoing challenging set of discussions in our marriage over tech companies and their roles.

And I feel like I should have won the argument because so many of the things that let's pick on Facebook but that Mark Zuckerberg and Facebook defended not doing over so many years, they eventually did.

For example, banning QAnon and banning Holocaust denials, they saw the polling.

That's just what I was just saying, that the Holocaust denial is now mainstreamed.

And-and in the recent election, having allegedly learned from 2016, made much more of a robust effort in terms of at least not embracing falsehoods or propagating falsehoods.

So, they say anyway, I think the verdict is out on the job that was done.

Health is, has been an exception for them.

You alluded to this earlier that when it was falsehoods related to COVID, they were willing to move much more aggressively, I think, in pulling material down, but certainly in telling people that they know that what they were reading was not accurate or was false.

I forget the exact language in the label.

But what is inexplicable to me is how you would have an exception from your otherwise laissez faire approach for health and COVID and not make an exception, similar exception, meaning be prepared to be more aggressive in policing what's on the on the platform for climate denial.

So, I don't mean for you to have to answer for Mark Zuckerberg, because I make you do that every day and for the choices he makes, because just Cass has the ability to step into other people's shoes and offer an account as to why people might be thinking.

But, you know, when once you acknowledge that harm and mortal harm is a standard that should inform your cost benefit analysis of what you're keeping up, taking down labeling, issuing retroactive corrections for, you know, I mean, what is Facebook going to go further?

Are we going to have a version of this conversation in five years where like, OK, then they got their own climate.

And then there's some new thing where consumer pressure, advertiser pressure finally gets them to take it down?

Or is there an actual an actual potential for the health of our citizens and our democracy to be a value that is taken into their calculus alongside profits?

CASS: So, when I was struggling with COVID, Ambassador Power will remember, and finishing this book, I decided to put as an appendix basically all of the principles of Facebook and Twitter and YouTube, with respect to falsehoods.

I thought that would be useful.

Ambassador Power said, you know what, it's going to be out of date by the time the book is published.

And as usual, she's right, but it's not a lot out of date.

And the snapshot, which has kind of what they where they now are, is, I think, instructive.

It is true that where they are now is not where they should be now, in my view, and that's part of what the book is about.

It's also true that the technologies that they have enable them to address falsehoods with more subtlety and nuance than in the history of time has ever been possible.

And that's beautiful.

So, you can downgrade falsehoods so that they don't circulate much.

You can say false before people see things, you can have warnings, you can have information saying to learn all about climate, go here, which are less speech-restrictive routes.

And while those might not be the best approach to any particular issue, including climate, the general idea that we have maybe 14 things we can do about a falsehood now rather than censor it, that is a bright light for ways to make our communities work better without becoming the truth voice.

POWER: I think, though, a great man once said sunlight is the best disinfectant.

I think the challenge is that discretion is exercised in ways that consumers and citizens and potential regulators have no visibility into.

There's no publicly available data.

There's no insight into the algorithm.

So, the general posture remains, trust us, look at all these new tools we can use, but we have no way of knowing, again, how the algorithm is being tweaked or in a systemic way to be able to assess the labels, which is not the kind of checks and balances... CASS: There's a chapter in the book on that which not to read is a tragedy for any of us.

POWER: Great.

OK, thank you so much, first of all, to Politics and Prose for hosting Cass and allowing us to continue a debate we have every day and thanks to Cass for putting such an another important contribution out into the public sphere at such a critical time.

GRAHAM: Great discussion.

It's really been fascinating, getting a glimpse of what the conversation must be like every day over your kitchen table.

To all of you watching, thanks again for tuning in.

From all of us here at Politics and Prose, stay well and well-read.

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