Is it illegal to shout "Fire!" in a crowded theater?
I haven't done a scientific analysis, but I'd be willing to wager most people think it is.
A week or so ago, Democrats and anti-gun activists were outraged when Utah Sen. Mike Lee opposed a bill that would have prohibited the publishing of blueprints for plastic guns. A common complaint was that allowing the publication would be like yelling "Fire!" in a theater.
And yet, yelling "Fire!" in a theater is perfectly legal, although perhaps not advisable.
But then, a lot of speech is legal but not advisable.
Supreme Court Justice Oliver Wendell Holmes set the pithy "fire" standard in a 1919 ruling that had nothing to do with theaters or fires. A 1969 decision involving a Ku Klux Klan leader who used ugly, racist language at a rally and urged, as he called it, "revengeance," overturned that earlier ruling and set a new standard. The court said you must clearly urge people to commit specific crimes in order to be in trouble.
In the United States, free speech always has been complicated. The whole concept of the First Amendment requires us to tolerate expressions we find personally abhorrent.
Which leads me to Russia, social media and the elections.
U.S intelligence agencies are adamant that Russian operatives are planting false stories on social media in hopes of influencing elections. Facebook reportedly is hard at work trying to identify and remove these accounts, which is its right as a private company.
The problem, of course, is that American politics — so recently democratized by the internet, where everyone can publish just as easily as The New York Times or the Wall Street Journal — is such fertile ground for lies.
Earlier this year, three MIT scholars published a study that put this in a new perspective. They developed an objective model for identifying whether news stories on Twitter were true or false, then studied how quickly they spread.
As one of the co-authors described it on an MIT news website, they were "somewhere between surprised and stunned" to find out that false news spread much faster than true news. It wasn't even close.
And the reason had everything to do with humans, not with bots.
People are 70 percent more likely to spread false news than the truth. The researchers also found it takes six times longer for a true story to reach 1,500 people than a false one.
It shouldn't be too hard to understand why. Truth can be boring. As the researchers put it, people want attention, or to give the impression they are "in the know" by spreading interesting things others haven't heard.
So, what to do about this?
In a recent Washington Post op-ed, Alina Polyakova of the Brookings Institution and Geysha Gonzalez of the Atlantic Council argued for treating false news the way the government and the culture treat cigarette smoking.
This would involve warnings from the Department of Homeland Security and the Federal Emergency Management Agency, support from private-sector agencies and nationwide public education campaigns.
But it also would involve government control. With smoking, Washington bent the First Amendment a bit by banning all broadcast commercials for cigarettes. In this case, the authors advocate for Washington to treat major social media companies as broadcast media, subjecting them to a slew of regulations concerning content and advertising.
That won't fly, nor should it.
In the first place, much of the internet thrives on an attitude of suspicion toward government control. Tight regulations would merely add to that, lending fuel to conspiracy theories.
John Milton, the 17th century author and a major influence for freedom of speech, advocated letting truth and error grapple in the daylight. "Who ever knew truth put to the worst, in a free and open encounter?" he asked.
The answer to that question may seem more in doubt now than at any time before, and yet the heavy hand of Washington doesn't seem to be the right remedy.
A recent Cato Institute survey on the First Amendment found Americans have some seemingly contradictory opinions on free speech. For instance, 79 percent said "hate speech" is unacceptable, but 59 percent opposed laws banning such speech.
Crazy? No, it sounds like most Americans really get it, after all.
Americans can't afford to banish error to the shadows where it can grow and fester without opposition. By all means, warn us, point out errors, delete foreign accounts, impose sanctions and go after the bad guys.
Yell "Fire!" in the crowded theater of social media, but then let people decide what to do about it.