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In Liars: Falsehoods and Free Speech in an Age of Deception, Cass R. Sunstein explores how society can regulate lies while fostering free speech. Photo: Shutterstock

Review | Liars: Falsehoods and Free Speech in an Age of Deception by Cass R. Sunstein on how to live with lies

  • Harvard Law School professor Cass R. Sunstein’s new book makes the case against censorship, and instead for allowing liars to lie
  • Liars: Falsehoods and Free Speech in an Age of Deception spells out why giving governments power to gag those who spread misinformation is a dangerous move

Liars: Falsehoods and Free Speech in an Age of Deception
by Cass R. Sunstein
Oxford University Press

“Right now,” writes Harvard Law School professor Cass R. Sunstein, “a lot of people are falsely shouting fire in a crowded theater. They are causing panics. At the very least, what they are doing is pretty close to that. They are certainly shouting, and what they are shouting is false.”

Sunstein, who worked in the Obama White House and currently advises the World Health Organization, is a prolific writer on public policy. In Liars: Falsehoods and Free Speech in an Age of Deception he offers a lucid tour d’horizon of the issues surrounding lies and misinformation in public life, the consequences of the ease with which they are spread, and the struggle between the need to regulate them and the right to free speech.

“Is there a right to lie? About a pandemic? About health and safety? About a public official? About an actor or musician? About a neighbor? About science? If we are committed to freedom of speech, must we tolerate lies?” he asks.

Liars by Cass R. Sunstein. Photo: Handout

Most of us would automatically answer with a series of noes – lies must not be tolerated. But Sunstein, in addressing pressing issues such as lying in public office, the spread of anti-vaccine hysteria via social media, and mendacity about climate change, gives a series of heavily qualified yeses, backed up by clear and methodically presented philosophical, psychological, political and legal arguments.

Inevitably much reference is made to various clauses of the United States constitution and recent American political upheavals, but although Sunstein occasionally gets a little bogged down in US case law, endless news coverage has made us all familiar with these issues. At heart, the discussion is of universal moral principles concerning the management of the press and social media, the right of public protest, and the nature of good governance, in Hong Kong as much as in the US.

The psychological issues around the value we give to information from different sources, how our opinions are swayed, and how difficult it can be to change our minds, are also universal, as are the problems of the internet age, in which falsehoods can be propagated globally in a matter of moments, and in which faking information is increasingly easy and fact-checking increasingly hard. Our previous safeguards are now inadequate, and we are in danger of losing respect for truth as a social norm.

Nevertheless, argues Sunstein, “In general, false­hoods ought not to be censored or regulated, even if they are lies. Free societies protect them.”

Public officials in particular “should not be allowed to act as the truth police. A key reason is that we cannot trust officials to separate truth from falsehood; their own judgments are unreliable, and their own biases get in the way. If officials are licensed to punish falsehoods, they will end up punishing dissent.”

A law that makes it unacceptable to say bad things about a nation’s system yet allows people to say good things about it favours a particular viewpoint in a way that is obviously invalid.

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There are weapons other than bans against falsehoods – such as counter-speech – that leave free speech unhindered.

Governments should compete to make their case in the marketplace of ideas, although, as Sunstein points out, this market is not always efficient.

But the proper remedy for falsehoods is more speech, not enforced silence. Engagement with falsehoods can deepen our own understanding and give us a more accurate picture of the world, which is certainly not full of people of the same mind as ourselves.

Banning falsehoods can often increase their allure, and the punishing of liars often deters truth-tellers, too. This is typically an intended consequence when authoritarian regimes give themselves unchallenged power to label whoever they please as liars.

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There are many cases, such as in perjury, libel and false advertising, or shouting “fire” in a crowded theatre, for which swift punishment is entirely appropriate. But falsehoods come in many kinds, and Sunstein concludes that in most cases other responses are more appropriate.

Social media outlets need to improve their responses, and governments need to legislate more subtly to take account of the difference between innocent falsehoods, falsehoods where the speaker ought to have known better, and barefaced lying, as well as responding to the scale of the resulting harm and its imminence in cases such as climate change denial and falsehoods that reduce the take-up of vaccinations against Covid-19.

This penetrating read will help you make up your mind on many points.

You have my word.