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- [00:00]
Jakob Mushingama
Around the world, we see relatively strong support for free speech in the abstract, but collapsing support when it becomes specific about, you know, should you have a right to offend minorities, say something controversial about religion, insult the national flag, and perhaps most worryingly, like extremely low support for free speech when it comes to generative AI Somewhere I read of the freedom of speech.
- [00:27]
Nico Perino
You're listening to so to Speak, the Free Speech podcast brought to you by fire, the foundation for individual rights and expression. Welcome back to so to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am your host, Nico Perino. Free speech has long been a cornerstone of a democratic society. It's built on the simple premise that the government doesn't get to decide which ideas are too dangerous to hear. But in today's world, that principle is under growing strain. Governments are increasingly justifying speech restrictions in the name of combating misinformation, hate speech, and extremism. At the same time, new technologies are making it easier than ever to monitor, shape, and control what people say and hear. Many free speech advocates warn that these efforts may be eroding democracy rather than protecting it. Today, I am joined by two of these advocates to discuss what they fear and is a global free speech recession. Jakob Mushengama is a senior fellow at FIRE and the founder and executive director of the Future of Free Speech at Vanderbilt University. And joining him is Jeff Kosseff, who is a senior fellow at the Future of Free Speech. And the two of them are out with a new book that came out today titled the Future of Free Speech, Reversing the Global Decline of Democracy's Most Essential Freedom. Gentlemen, welcome back onto the show, both of you. Jeff, you were just here.
- [01:57]
Jeff Kosseff
Yes.
- [01:57]
Nico Perino
Not in studio with me.
- [01:58]
Jeff Kosseff
I can't stay away.
- [01:59]
Nico Perino
Yeah, you can't stay away from this podcast. You also can't stop writing books. How many books have you written?
- [02:04]
Jeff Kosseff
If you count a textbook, it's five, but I wouldn't count the textbook.
- [02:07]
Nico Perino
Good for you. How do you guys co author a book? As our listeners know, I just wrote a book. What? It was your process like, did someone write the first draft of one chapter, then you would share it and someone else wrote the first draft of another chapter. How do we make this work?
- [02:21]
Jakob Mushingama
We had a pretty straightforward division of labor. I think we agreed sort of on an outline, and Jeff did the heavy lifting on the US Specific parts, and I took the lead on more international stuff. And Jeff was also the lead on sort of platform regulation generally. So it felt quite natural. And then we shared drafts and worked in each other's drafts, sort of Google Docs, and there was no drama.
- [02:52]
Jeff Kosseff
Yeah, no, it went very smoothly. And yeah, it really was great for me to get more of an appreciation of international speech regulations because I really focused my work on the US And I didn't quite realize how much I took that for granted until we learned more about what other countries are doing.
- [03:14]
Nico Perino
Well, Jako, most of your career was spent abroad. You're Danish, right?
- [03:18]
Jakob Mushingama
Yeah.
- [03:18]
Nico Perino
And now you're at Vanderbilt University running the future Free Speech Project. So what led you to come to the United States to start up this project and ultimately to write this book?
- [03:32]
Jakob Mushingama
Well, I've sort of been a heretic for a while in Europe in that I favor a more First Amendment style approach to my free speech. And for me, you know, I focused on global free speech for a while. I set up a think tank more than 10 years ago that focused on rule of law, human rights, more generally. But in the past five years or so, free speech has been, or maybe even longer has really been what I've focused more and more on. I wrote a book on the history of free speech and it was always the idea that I wanted to set up, you know, do a, set up a branch or whatever of the think tank focusing on free speech in the US And I had this opportunity to, to set up a think tank at Vanderbilt. Vanderbilt reached out to me and we're an independent 501C3 at Vanderbilt, but have a great collaboration with them. So, and I was, I thought, you know, that would be. And it has turned out to be a really good setup. I was, you know, we can maybe talk more about how free speech is doing in this country.
- [04:38]
Nico Perino
Well, I was going to, I was going to turn to Jeff. I was like, interesting time for Jakob to come over to America and set up a project focused on the future of free speech. I mean, what's your assessment of the current moment for free speech in America?
- [04:50]
Jeff Kosseff
So I think it depends on how you look at it. So there are many great challenges in America right now for free speech, but we also can get some appreciation for how courts are treating free speech challenges where they're largely, I think, standing firm and enforcing the same principles that have guided them for decades.
- [05:12]
Nico Perino
So the courts are good?
- [05:13]
Jeff Kosseff
The courts are good, yeah. And in terms of the other branches of government, there are more challenges. And even for writing a book, we wrote most of the book in 2024. And we edited it.
- [05:26]
Nico Perino
I was going to ask you about that.
- [05:27]
Jeff Kosseff
Yeah, so, so that even a book is perhaps a more challenging format for the current times. Because, I mean, even in the past week or so, there's things that I'd like to get in the book. So that, that poses challenges, but what we tried to do is focus on the free speech principles and the need to have them endure. So I think that really helped capture what, what the general challenges are.
- [05:53]
Nico Perino
Well, you, you guys talk about a global free speech recession, which means we're not just having a free speech recession here in the United States, we're having one globally in democratic society. So what do you mean by that?
- [06:06]
Jakob Mushingama
I mean, you could look, start, you could look at the data, just, you know, the number of countries that are backsliding democratically, that goes hand in hand with backsliding on, on, on free speech indicators. In fact, free speech is probably the most central indicator to determine whether a country is moving towards more democracy or more authoritarianism. And that is why we call the book, you know, Democracy's Most Essential Freedom, because that's essentially the conclusion that free speech is a meta. Right. It's a meta principle that undergirds free and open democracies. Not only individual freedom, but political pluralism. You know, all the classic justifications of why we have free speech. And I would say across the board, free speech is in decline. It's not surprising that free speech is obliterated in China, in Russia, although, you
- [07:05]
Nico Perino
know, North Korea, Iran, you can't get access to.
- [07:07]
Jakob Mushingama
I mean, I guess the thing to say is that maybe, maybe 20, 25 years ago, we thought that new technology would essentially mean that it would become very difficult, if not impossible, for these authoritarian states to use censorship. Of course they've learned to reverse engineer those technologies to supercharge censorship and surveillance and export it in ways that pose huge challenges from Chinese AI, you know, to Russia's. The way that Russia now is cracking down on telegram and so on and so forth. But in democracies that sort of the traditional heartland of free speech, you see more and more tendencies towards eroding it. Europe is a good example. Increasing focus on hate speech laws, increasing focus on platform regulation now, you know, laws to save the children, focus on misinformation and so on. And so all of that just paints a picture of free speech being in this global decline. And it's been in decline for maybe two decades by now.
- [08:18]
Nico Perino
Yeah, you write in the book Between 2014 and 2024, freedom of expression substantially deteriorated in 44 countries. This means that in 10 years about 5.8 billion people worldwide have faced increasing restriction and voicing their opinions, criticizing their governments or religious authorities and accessing free and independent media. And in 2024, Freedom House concluded that global Internet freedom receded for the 14th consecutive year with declines in 27 out of the 72 surveyed countries. Now, is it the hate speech policing, Jakob, that you mentioned that's really driving this? A fear over the open Internet and protecting children? Are there other factors at play?
- [08:57]
Jakob Mushingama
It's I think unfortun, like a perfect storm. So it's new disruptive technology. Think about, you know, we've had huge panics about social media now.
- [09:06]
Nico Perino
Now it's AI, Internet, social media, AI. There's been a lot of technological revolution.
- [09:11]
Jakob Mushingama
All of that tends to disrupt institutional authority and that tends to be like a backlash, an attempt to reimpose some form of top down control. Then you have a sense open democracies are no longer in the ascendancy geopolitically. So there's a fear that, that free speech online reinforces those who want to do away with democracy and democratic value. So there's a need to crack down on that. Then you have big tech, these platforms who serve as perfect villains for crackdowns on free speech because you're not going after the users. Oh no, no, that's not. We're going after Mark Zuckerberg and so on. When in reality, I think very often it is about controlling access to share and access information of users. But it makes it very difficult when you are on the free speech side of things because you immediately are accused of running interference for big tech when I don't think any of us really care whether meta platforms are around tomorrow, if a new competitor comes along with a better, more speech protective product.
- [10:18]
Nico Perino
Unless we lose all of our photos, of course. Right. But we're talking here about democratic societies. Presumably the population has a voice in these policies and so they're calling for these greater free speech restrictions. It's not just the governments that, you know, those in power, the elites that are, that are demanding them.
- [10:39]
Jakob Mushingama
Yeah. So at the future of free speech we did this survey of attitudes towards free speech in 33 countries around the world and there was a huge decline. Frighteningly, the third largest drop was in the US and especially among younger Americans. You saw a drop. I think that chimes with some of your own research at fire. So around the world we see relatively strong support for free speech in the abstract, but collapsing support when it becomes specific about should you have A right to offend minorities, say something controversial about religion, insult the national flag, and perhaps most worryingly, like extremely low support for free speech when it comes to generative AI.
- [11:23]
Nico Perino
All of this presumes that there was some sort of high point for free speech that we could decline from. Did we have one of those periods, Jeff? What are we declining from here? What are we receding from?
- [11:36]
Jeff Kosseff
I think in the United States, we're receding from real protections that the Supreme Court has created over the past century. And fortunately, the Supreme Court is not receding. I think the public sentiment is. And we're starting to see the legislatures, both at the state level and Congress really try to test the limits of the very high bar that the Supreme Court has set for speech regulations. And I think particularly the children aspect, you know, saving the children and the. This is something that's really been. Since the beginning of the Internet has been an argument, but I fear that it's becoming far more persuasive, both in the United States and outside of the United States.
- [12:24]
Nico Perino
Well, you mentioned the Supreme Court, and it seems like its recent decision in Free Speech Coalition v. Paxton, which relates to a Texas law that limits Internet access or gates Internet access for websites that feature adult content, was a, you know, a backtrack or a recession from its decision in The Reno v. ACLU case in the. In the late 1990s.
- [12:50]
Jeff Kosseff
It was. And they tried to distinguish it. I don't think they did a particularly good job. I mean, there are some. Some who would say that Reno is effectively null at this point. I wouldn't go that far, but let's hope. Yeah, I hope not yet, but we. We still have some time. I would say even the TikTok opinion was a recession. But I worry that that force of the Supreme Court saying maybe this is. Maybe the Internet is a little different in terms of needing more regulation. I think there's a very real danger in that. And I mean, the Supreme Court is not static. There can be new members, and they might have different views on it. I think there also are some really positive developments. I think the Net Choice v. Moody case was overall a pretty good. Even though they sort of punted on the big issue, there was some good.
- [13:49]
Nico Perino
This was the case dealing with Florida and Texas, which wanted to impose some restrictions on how social media companies could moderate content.
- [13:58]
Jeff Kosseff
Yeah.
- [13:58]
Nico Perino
For example, Supreme Court said, no, this is an editorial choice. These are private companies. The states can't manipulate these moderation decisions to reach some sort of speech nirvana, I think is what they said in the decision.
- [14:12]
Jeff Kosseff
Yeah, absolutely. And I think also even though the Murthy v. Missouri case, which was the job owning case that ended up being decided on standing grounds, I would say, even though it wasn't an Internet case, the NRA v. Bulow case was even more important for job owning because that was basically setting a very high bar for when the government can try to exert pressure on a third party.
- [14:37]
Nico Perino
And that was the case out of New York where the insurance regulator effectively told a bunch of companies that were working with the National Rifle association to stop doing business with them or else.
- [14:48]
Jeff Kosseff
Yeah. And I think that's going to be very useful against government job owning in the future.
- [14:53]
Nico Perino
So I still useful in the law firm cases. Right. Where President Trump has signed executive orders restricting the ability of law firms to enter courthouses or do business with the federal government, things like that.
- [15:04]
Jeff Kosseff
So I think the real challenge is that when you hear legislators talk about, you know, children's issues, or not as much now as a few years ago, but misinformation, I think they really are untethered from free speech principles. And they don't, not all of them, but many of them don't really care about sticking to strong free speech principles. And they try to distinguish why this isn't about free speech. They'll say it's about conduct and not speech, or it's about the algorithm and not speech. But overall, I think they're pretty weak excuses. And I'm just worried that in the US that's really eroding what has been very strong protections for online speech.
- [15:49]
Nico Perino
Did you see that line from Gorsuch's opinion in the Colorado conversion therapy case where he more or less said, just because you call speech conduct doesn't make it so. I love that line. But the courts are one thing, right. The courts in enforcing constitutional principles, are enforcing in many ways non democratic principles. Right. No matter what the democracy or the population wants to do, you can't infringe these rights. But legal principles can change, precedent can change. In the first 140 years in this country, the Supreme Court did very little to protect First Amendment rights. Where is the culture at in America?
- [16:31]
Jeff Kosseff
It's not great because these people are
- [16:33]
Nico Perino
going to be the judges, the Supreme Court justices one day and they might have a very different conception of what the First Amendment means.
- [16:40]
Jeff Kosseff
Yeah, I mean, I think that that's a very real risk, that there's a lot more thinking about short term goals and not as much thought about what it means to erode those principles. So Jakob will get tired by the End of this book publicity of hearing me talk about this. But one thing that really sticks with me is in 2021, there was legislation introduced in Congress called the Health Misinformation act. And it would have taken section 230, which protects online platforms from claims about user content. And it would have said, online platforms don't get Section 230 protection for amplifying health misinformation. And you look in the bill and you say, how do you define health misinformation? What is this? And it says, this will be defined by the Secretary of Health and Human Services. And I spoke out pretty frequently about this legislation at the time, and I said, this is crazy. This is giving one unelected bureaucrat the authority to define what is permissible speech. Don't you see a problem with this? And the supporters of the bill said, you know, you're being crazy. We trust the HHS secretary. And I said, well, but don't you think there might be an HHS secretary who you disagree with, who might eventually be in office? And I said, no, you're being dramatic. What are you talking about? And I think with even within a few years, you look at how crazy that position is, and they were thinking about the very short term, we're concerned about vaccine misinformation, and they were willing to throw away these great safeguards that we have because they didn't like certain content that was posted. And I think that's really dangerous.
- [18:34]
Nico Perino
You talk about some various turning points for free speech in the past couple of years. The Internet and social media obviously generated a conversation. The 2016 Russian disinformation campaigns as well. And this broader concern over misinformation, which speaks to another one of your turning points, the COVID infodemic. And then there's the rise of artificial intelligence. Can you, Jakob, unpack the 2016 Russian disinformation campaigns? What conversations and backsliding did that spark for free speech?
- [19:06]
Jakob Mushingama
Yeah, it was a perfect storm on, on sort of both sides of the Atlantic because you had Brexit and the 2016 election close together. And so the narrative that started was that it was essentially disinformation in the U.S. russian disinformation in, in, in, in Brexit, Kate. It was Cambridge Analytica and sort of these claims. That is, in the United States, Russian disinformation had essentially had a significant, sometimes decisive influence on the election. In other words, when people logged on to their social media feeds and they encountered Russian disinformation, they magically changed their mind from being Hillary supporters. To voting for Donald Trump. There were no sort of. That was the main issue. A lot of subsequent research has debunked that. A lot of studies have said that, you know, Russian, which was real. I mean, the Russians did try to influence the election in, in many ways, some. And also in ways like hacking DMC emails is not protected speech. I think everyone agrees about that, but relatively few people were confronted with it and it had a negligible outcome based on sort of the best available research. But that narrative really drove a lot of what I would call elite panic about democracy is under attack. We need suddenly, if you go back five years, you had the Arab revolts. At that time, the Internet social media was still seen as sort of this democratizing force that empowered dissidents in authoritarian states to circumvent censorship and propaganda. If you go back to 2012, there's a resolution adopted in the Human Rights Council led by Sweden and the US which talks about the importance of Internet freedom. Everything that is allowed offline should also be allowed online. Now, the reverence.
- [21:08]
Nico Perino
You see one of those resolutions today now.
- [21:11]
Jakob Mushingama
And so you have this narrative that, yeah, essentially social media is destroying democracy by spreading disinformation. Then you have the, you have Covid and the so called infodemic and you have an explosion of laws around the world that in various ways, some of them criminally try to prohibit disinformation. In many countries, these laws are nakedly used to crack down on dissent. In other countries, it's more indirect pressure on platforms by governments. The Murthy case sprung out of the fact that under the Biden administration, there were sometimes not so subtle attempts to influence platform content moderation, even if there was never sort of explicitly said you have to remove this type of content. But it was quite clear that when, you know, the rhetoric coming out of the White House was, no, we don't think the First Amendment and Section 230 are our friends right now at this time.
- [22:11]
Nico Perino
Didn't Joe Biden say that the social media companies were killing people?
- [22:13]
Jakob Mushingama
I think Facebook.
- [22:14]
Jeff Kosseff
Yeah, Facebook, yeah, yeah.
- [22:17]
Nico Perino
So what evidence, if any, is there that misinformation or disinformation campaigns or even artificial intelligence, if we're talking about deepfakes, is manipulating elections. I mean, we've had a couple elections since what, ChatGPT came online. And was that late 2022?
- [22:37]
Jakob Mushingama
Yeah, I mean, this is a great example that we use in the book. So in 2024 was a super election year. I think there were around 2 billion people around the world who were eligible to vote. And when you saw the headlines in newspapers, media, they were very alarmist, like, this could be the year democracy drowns in disinformation. World Economic Forum said that disinformation, AI generated disinformation is the biggest threat against humanity in the short term. And when you look at the evaluation is that I don't think from the reports that we found, at least, the consensus is that there were lots of deep fakes, lots of people using AI in the elections, but no real evidence that it had a significant impact on elections. But still, the narrative, it's not like policymakers and politicians then say, okay, well, it turned out that the 20. The narrative around 2016 was, was wrong. It turned out that AI did not drown democracy. So maybe we should, you know, move in a more speech protective direction. That's certainly not the trajectory of regulation around the world.
- [23:52]
Nico Perino
But what if AI was having a tangible, measurable effect on elections? Would that justify regulating it?
- [24:01]
Jeff Kosseff
I think that would be more dangerous. Yeah, absolutely. Because then you have government putting its thumb on the scale of what the outcome would be. And I think that getting the government involved in saying this is the proper way for AI to respond to queries, for example, that will inevitably be used by those in power to stay in power. I mean, that's just the nature of government.
- [24:29]
Nico Perino
Yeah. The question is, who do you trust? Right. You were using the HHS secretary as an example before. All of these laws that restrict your access to information or restrict what you can or can't say. And we're to be enforced by someone.
- [24:40]
Jakob Mushingama
Yeah, we're already seeing it. I mean, I mean, China is the most egregious example, obviously. But, you know, even, you know, there was a Dutch government agency that, ahead of the Dutch elections, they sort of ran some prompts through various LLMs, and they found that these LLMs favored sort of parties on the extreme left and extreme right at the expense of others. And sort of. They note they reported their findings to the European Commission, which, you know, has authority under the AI act, and sort of suggested that this might be a democratic problem that you need to do something about. The counter question is then, okay, let's just, you know, assuming that, you know, you did your proms in a, in a, in a, you know, in a way that is scientifically rigorous. What about the wider ecosystem of media? Like, is it a problem if mainstream newspapers endorse specific political parties and not others? Like, is that a democratic problem that you need government oversight over?
- [25:51]
Nico Perino
So I've just found people are reluctant to extend First Amendment protections to artificial intelligence or anything that's produced by them.
- [25:58]
Jakob Mushingama
And we don't argue in the book that we don't make the argument that the companies or the LLM has human rights, but that first and foremost, we as users have a right to access information. And this is actually a point where international human rights law has explicit guarantees that on paper, sound stronger than the First Amendment. Because human rights law says that free speech includes the right to share and access information across borders and regardless of media. So that essentially says, okay, whether it's social media, whether it's AI, you have a right to access information. Government shouldn't interfere with that.
- [26:41]
Nico Perino
Is that one place where international law might be a little bit stronger than law in the United States? Because, Jefferson, we have a lot of really good law in the United States, First Amendment law that addresses a speaker's right to speak. We have some case law addressing people's right to access information. The first time a speech restriction, a federal speech restriction, was struck down by the Supreme Court on First Amendment grounds was 1965 in Lamont v. Postmaster General. And that was a case involving restrictions that the Post Office placed on accessing communist literature. I think it was the Peking Review was at issue in that case. So the first time we struck down a federal speech restriction involved the access of readers to information. But since then, it seems like it's somewhat of an undeveloped area of law.
- [27:30]
Jeff Kosseff
Yeah, I find myself citing Lamont quite a bit, and I wish we had more cases like that, at least at the Supreme Court level.
- [27:38]
Nico Perino
So especially in the AI age, if you want to extend First Amendment free speech protections, obviously what gets produced by artificial intelligence is somewhat created by the people who develop these LLMs and train them. But anytime you put a query into artificial intelligence and you're hoping to access information, I mean, that is a First Amendment interest as well, but it represents an interest that's underdeveloped in the law.
- [27:59]
Jeff Kosseff
Yeah, absolutely. And I think it's going to be inevitable that we'll have more case law on the right to receive with AI. With all these regulations on AI, the states are all going in their own direction.
- [28:11]
Nico Perino
And let's just hope it's not around a suicide case, because that's what it seems like a lot of these.
- [28:15]
Jakob Mushingama
And also right now, the stakes are really high. Right. Because search is no longer search the way that it was like three years ago. Search is now, you know, generative AI is embedded in it. Right.
- [28:28]
Nico Perino
Yeah.
- [28:29]
Jakob Mushingama
And that has in many ways made revolutionized search, made it much more useful Than sort of find just having like a list of blue, blue and hoping
- [28:38]
Nico Perino
that what you click on gives you the answer.
- [28:41]
Jakob Mushingama
And that to me is like, wow, this is extremely useful. Like, this is what you want freedom of expression to do, to empower individuals who have access to information. That would have taken an army of PhDs and with access to libraries around the world in the age of analog, suddenly you can do that. Now, of course, you still have to be critical. There'll be hallucinations, some information will not be as rigorous. But if you do a good job with your prompts and use the best available models, you can get incredible research at the fingertips. I think that's a huge net benefit to society.
- [29:20]
Nico Perino
Well, we used to have the saying, I think we still do. Do you believe everything that you read on the Internet? And the last podcast that we just published was on misinformation in early America, the colonial period. And one of the things that you find is that a lot of what's published in colonial era newspapers is international news. Most of local news was shared by word of mouth. And because it took so long to print a newspaper, by the time you printed it, the local news would become stale. Everyone had heard the news. So a lot of it is international news. And that news is really hard to verify. Often it's letters sent by merchants and whatnot. So you have a lot of misrepresentation, misinformation happening there. And it just goes to show that these concerns over what is true and what is false are as old as time. And over time, you develop systems by which you can check or media literacy is developed. No longer am I really believing the Nigerian prince who says he has a million dollars for me, for example. But it seems like right now we're so fearful of artificial intelligence that we don't want to wait for media literacy. The risks are too high, so to speak. And Jeff, if we don't extend First Amendment protections to the outputs of this artificial intelligence, what are the risks? Presumably then, if they don't receive First Amendment protections, the government can order AI companies what they can or cannot produce and the outputs.
- [30:53]
Jeff Kosseff
Yeah, I mean, I think it's the concerns that we've seen in other countries where the government does have the power to affect the outputs.
- [31:02]
Nico Perino
No discussion of Tiananmen Square. I have an LLM from China.
- [31:05]
Jeff Kosseff
Yeah, and I mean, I think regardless of your partisan affiliation, that should terrify people to think about the role that AI is playing now and what it will play then, letting the government effectively be the programmer to determine what People see what people hear. I mean, that's contrary to all First Amendment principles. And I think that it would just be a very dangerous place if we got there. And it's scary to see states trying to, on the margins, at least try to do that already.
- [31:40]
Nico Perino
Well, what does this say about human nature that we can be so trusting of those in power that when we see a problem, our first instinct is to find a government solution?
- [31:51]
Jakob Mushingama
I think it's, I mean, free speech is robust principle. Free speech has been around for a very short time. Right. And in many ways it's a counterintuitive principle.
- [32:02]
Nico Perino
You know the history better than anyone. You wrote a book about it, the
- [32:04]
Jeff Kosseff
authoritative book on it.
- [32:05]
Jakob Mushingama
So I think it's, you know, sometimes, obviously those of us in the, in the free speech space also have to, you know, take a reality check and just recognize that free speech might be celebrated in the abstract, but for most people it just becomes counterintuitive when the abstract seems like a very concrete thread.
- [32:29]
Nico Perino
And so it's always been though, how do you get the golden era? How do you get this peak that we can then receive?
- [32:33]
Jakob Mushingama
I mean, okay, so this is the, my most pessimistic take.
- [32:37]
Nico Perino
And then I want to hear Jeff's optimistic.
- [32:40]
Jakob Mushingama
Maybe we just need to, I mean, this country hasn't lived under authoritarianism for a very long time. Maybe there needs to be a complete breakdown. A couple of years living under authoritarianism, where free speech is stripped away and then magically it'll be reversed by citizens restoring democracy and everyone will sort of say, okay, yeah, actually, actually censorship was pretty bad for all of us and we need to safeguard our freedoms. But in seriousness, that's why we try to address in the last part of the book sort of concrete, tangible solutions. But it's actually interesting what you just said about how news in the colonial era would travel far and it was impossible to verify. That also just says to me, even with all the information you can get from countless sources, our ability today to verify information is infinitely better than if you were living in the 18th century America and you would receive with three months time lag news from the old world that you had no chance whatsoever to verify. Today you have all kinds of, you know, if someone writes something crazy on X, you know, that are community nodes, you can, you know, you can. There are other sources, new sources that you can, can, you can check, you can use LLMs and so on.
- [34:02]
Nico Perino
Yeah, when I see something crazy on X, one of the first things I, I do is go to see if the associated Associated Press or Reuters or the New York Times or the Wall Street Journal reported on it. But I think a lot of people just kind of accept what they see on the Internet, as they always have, uncritically. And I think that's what people fear the most. That's why you get things.
- [34:21]
Jakob Mushingama
But this, this points to something like most people say, you know, how old, I'm not gullible, you know, I could,
- [34:27]
Nico Perino
I can see, so is the other guy.
- [34:29]
Jakob Mushingama
But, but the others, like the, the unwashed mob, they are, you know, too stupid. And that's why we need someone with my ideas to be the guardian of truth.
- [34:41]
Nico Perino
And, and is that what, is that what Europe's trying to do? So you talk about the EU Digital Services act and UK's Online Safety Act. Do they deal with mis and disinformation or is it mainly just protecting people from, mainly kids from harmful content online?
- [34:58]
Jakob Mushingama
They do a lot of things. So mis and disinformation is not specifically prohibited, but there's an obligation to mitigate so called systemic risk. And systemic risk can also be disinformation that relates to democracy, health and so on. And so that means that how do
- [35:19]
Nico Perino
you know what you need to mitigate?
- [35:21]
Jakob Mushingama
The platforms don't have a legal obligation per se to remove disinformation, but they have to show that they're doing something about it if it constitute a systemic risk. And when it comes to the biggest online platforms, the regulator is the Commission. Now the Commission is the executive arm of the European Union, which is essentially a political body. And so you can see it has certain incentives to not necessarily act as an independent regulation regulator. And I think that's a, a, a huge concern at least, at least, at least for me.
- [35:53]
Jeff Kosseff
And just for the DSA as an example, I'm amazed at the Europeans ability to use all this bureaucratic language and talk about systemic risks and so forth because we saw in the lead up to the 2024 election, we saw Elon Musk planned to do and audio interview on X with Donald Trump, the candidate. Yes. And he got a very sternly worded letter from the EU commissioner who oversees the DSA reminding him about the obligations under the DSA and noting that there's this plan to talk to Trump. And it was, it was a very scary thing because even though it wasn't saying this is illegal, it was, you know, remember your obligations under this law that can cost you quite a bit of money.
- [36:43]
Nico Perino
I was going to ask what are, what are the costs associated with a violation of one of these acts up
- [36:48]
Jakob Mushingama
to 6% of global turnover, which is.
- [36:51]
Nico Perino
Is that so high that no country or regulatory body like the EU is actually going to levy it? Like, is it per violation? Because that would be crazy.
- [37:02]
Jakob Mushingama
I'm actually not sure. But some of the proposed fines are pretty high. And we're still sort of in the beginning of the dsa, so we don't know what it will look like going forward. And there's a lot of Europeans, even some American scholars who I respect a lot, who sort of downplay this. They will say, well, Cherry Breton, the commissioner who wrote that letter, was essentially criticized by his colleagues, he's no longer in office, and so on. But when you look at the rhetoric surrounding the DSA and sort of disinformation from the Commission, it is very speech restrictive. I mean one, for instance, there's an obligation, so there's a notice in action system under the dsa, meaning that if platforms are notified of content that is illegal, they should evaluate it and remove it as soon as possible if it's illegal. But what is illegal is defined under national and European Union law, which means that every time a country expands its criminal law, for instance, it will automatically be covered by the dsa. And right now the European Union is proposing to harmonize and expand the definition of hate speech across all 27 member states. And the European Parliament is saying that's a great idea, but we should have like there should be no exhaustive list of protected categories. It should be open ended, open to social dynamics. Which means that any group based on identity, I guess could perceivably say, well, this is hate speech against us, hate speech against the Marxist Leninists, or hate speech against libertarians, or, you know.
- [38:53]
Nico Perino
Well, you know, that's really interesting because one of the things that we do in the United States that the Europeans do differently is we have just kind of categorical exceptions to free speech. We don't have categorical protections for free speech, but the categorical exceptions are, you know, obscenity, defamation, speech integral to criminal conduct, incitement to imminent lawless and action. Whereas the Europeans, it's more historically has been somewhat more of a balancing test of harms. I mean, you have a little bit of that in American law. Right, Jeff? But it is a somewhat different approach that makes the First Amendment unique.
- [39:26]
Jeff Kosseff
Absolutely. And I think that having exceptions to the rule rather than have the rule being this vague balancing test is one of the real strengths of the American system. And it's something that I really appreciated much more after writing this book because I, I didn't realize how many, how, how vague other countries could be in terms of what they protect. I thought, oh, well, things are protected by default and then there are some narrow exceptions or. No, that's not really the case in most of the world.
- [39:59]
Nico Perino
Well, one of the things you talk about here, you write in the book. Despite clear differences, unsettling parallels are now emerging between democracies and authoritarian states. The systematic policing of online speech, the growing use of hate speech laws to punish dissent, and the targeting of religious, ethnic and national minorities. While these tendencies are far more severe in countries like Russia, Venezuela and Rwanda, democracies are moving closer to this model than the other way around. How are these authoritarian countries using hate speech laws in particular? In ways that are now being modeled by democratic societies.
- [40:36]
Jakob Mushingama
Yeah, so I mean, a great example is actually the other way around. So in 2017, Germany pioneered a law that said that if social media companies, I think with 2 million daily users, did not remove manifest illegal content within 24 hours, they risked a fine of up to 50 million euros. That was essentially a response to the refugee crisis in Germany, where they had let in a lot of Syrian and Afghan refugees. And that saw a spike in sort of racist, hateful comments online, which Germany is very uneasy with for historical reasons. And within a couple of years we saw that Russia, Venezuela, Belarus, Honduras, Egypt had adopted similar laws where they specifically reference the German law as a precedent. Now obviously they were already censoring and suppressing speech and they would have done so anyways, but suddenly Germany, these democratic societies had given them. What about a report where you could say you can't criticize us because we're just doing what you're doing, even though they do it in bad faith. And you also see that in Russia where they have these so called memorial laws where they say certain parts of Russian history cannot be denied. For instance, if you, that there's a Russian blogger who was convicted for saying that essentially the Soviets and the Nazis collaborated, which is true.
- [42:04]
Jeff Kosseff
Right.
- [42:04]
Jakob Mushingama
In 1939 they signed.
- [42:07]
Nico Perino
It's the Molotov Ribbetrov pact.
- [42:08]
Jakob Mushingama
Yeah, exactly. To carve up Poland. But if you do that, you denigrate the achievements of the Red army, which is something that the Russians don't like. And so you, you're punished. And then when Western countries criticize that, the Russians say, well, in Austria, Germany, France, you have laws that says you can't deny or trivialize the Holocaust or even war crimes as defined by the Nuremberg Tribunal. So what's the real difference? And so, yeah, so that's really what we're seeing. And I think, well, that doesn't bode
- [42:44]
Nico Perino
well given the United States setting these international norms and the way the executive branch in particular, but also Congress is going right now.
- [42:51]
Jakob Mushingama
No, no, I mean, that's, I think, a real concern that, you know, however imperfect, however, you know, inconsistent, America has been the country most loudly proclaiming the importance of free speech in the post World War II era. There's no sign that I've seen that, you know, there's been criticism of Europe by the Trump administration.
- [43:17]
Nico Perino
J.D. vance gave a big speech at the
- [43:19]
Jakob Mushingama
Munich Security, but now he's in Hungary with Orban. Right. I know where I would if I was a journalist. Would you rather be working in Germany with all the censorship that they have, or in Orban's Hungary? And I think I'd choose Germany over that because Orban is certainly not a friend of free speech and open criticism. And all. All of the things that the administration has done to pursue its enemies, real and perceived, is obviously something that also can inspire others. Like, if America, the world's preeminent democracy, is doing this, what's wrong with what we're doing?
- [43:54]
Nico Perino
Well, where do we go from here? How do we stop the backsliding, the global free speech recession? Do you have any solutions, Jeff?
- [44:01]
Jeff Kosseff
So I think in the book we look at a few paths to go down. One thing that we focus on quite a bit is Taiwan. And so Taiwan has faced a lot of these same pressures that we've seen in the United States and Europe with concerns about COVID misinformation and election interference and so forth.
- [44:18]
Nico Perino
Yeah, I mean, the. China's gunning for them.
- [44:20]
Jeff Kosseff
Yeah, absolutely. And they took a very different path that they could have gone down the route of misinformation laws and really cracking down on the platforms. But they went, as one government official we write about in the book, they went down a path of radical transparency where they said, you know, we're going to. Rather than tell people what to think, we're going to be transparent and build trust and give them as much information as we as we can about how the government functions, make public meetings available to everyone, have daily press conferences during COVID and discuss what they're doing that's
- [45:00]
Nico Perino
working and not working.
- [45:01]
Jeff Kosseff
Exactly. And be candid because, I mean, misinformation might work if people don't have trust in the government. And what Taiwan did, very remarkably, was build that trust with the public. So rather than regulate, they said, we're going to be transparent and just let people know that this is this is the government, warts and all, and we're going to let them evaluate that themselves. And I think that could really be a model for the rest of the world when they're confronting similar concerns about misinformation and other harmful speech. We also look quite a bit because we spend a good amount of time talking about pressure on platforms that governments in the United States and outside of the United States have been exerting. And we look at the possibility of decentralized online speech where you don't have just a few choke points, where the government can really just be aggressive and say, you've got to adopt these rules or we're going to make life really difficult for you. And we've seen a lot of experiments with.
- [46:06]
Nico Perino
Right. The protocol is not platforms idea, it's the network effects kind of work against it. Right?
- [46:12]
Jeff Kosseff
Yeah. And network effects are a big problem. But I think there's still some hope and there have been some good experiments. But yeah, I mean, if you have dozens of different outlets for people to post on, then that's perhaps not as, as powerful as having a few, but that at least sort of reduces the amount of control that the government can have over a few companies.
- [46:35]
Jakob Mushingama
And one of the things that Taiwan actually pioneered was the crowdsource fact checking model, which was ultimately adopted first by Twitter as Birdwatch and then as community notes, that has become a defining feature under Elon Musk. Whatever else you might think of XCO currently, which I think shows a lot of promise both in terms of its accuracy, its potential ability to scale and to also increase trust. Because if you have third party fact checkers like as experts, that doesn't necessarily create a lot of trust. But when you have community nodes that are built on a bridging algorithm which says that a critical mass of people with very different political ideas have to agree that a specific community node is useful before it becomes operational and visible. That makes it more difficult for someone like a government official to say, well, it's just the liberals or it's just the conservatives who are fact checking me. No, you're being fact checked by, by, you know, your, the population in your country, which we saw in Minnesota after Alex Preddy was, was, was, was shot by border patrol agents. The White House came out with all these wild statements. They were all community noted on a platform that is certainly leaning maga and they had to change their narratives. And Kristi Noem is no longer head of that office. Right. So, so I think that is something that holds promise if, if, if, if enough platforms Adopted and if enough users buy into it.
- [48:10]
Nico Perino
So this is, this is a form of radical transparency that a check in of each by.
- [48:14]
Jakob Mushingama
It's like, it's like it's Justice Brandeis, you know, fighting, fighting, fighting a bad speech with better speech.
- [48:22]
Nico Perino
Sunlight is the best disinfectant can be
- [48:24]
Jakob Mushingama
like the best policeman can be, can, you know, that can sound like such an empty cliche, but we actually point to some concrete tools that operationalize it and even scale it.
- [48:36]
Nico Perino
Any other silver bullet to end this free speech recession?
- [48:40]
Jeff Kosseff
Well, I'll put a plug in for
- [48:42]
Nico Perino
anti slapp laws, strategic lawsuits against public participation. These are when often rich and powerful people file a lawsuit knowing they're going to lose that lawsuit in the end in order to chill or prevent someone from speaking again in the future.
- [48:57]
Jeff Kosseff
Yeah.
- [48:58]
Nico Perino
And it costs a lot of money to defend against these sorts of lawsuits.
- [49:00]
Jeff Kosseff
It does. And we've had some countries, and in the US we've had states to varying degrees of strength pass laws that make it easier to get the cases dismissed, to get attorneys fees, to freeze discovery. And I think that those sorts of laws really can help, at least in some cases, allow people to speak without fearing this ruinous liability.
- [49:28]
Jakob Mushingama
And then something that fired us really well, which I think is crucial on the part of us who see ourselves as free speech advocates and defenders, that we have to be consistent and principled when the political winds change because otherwise the general public will be cynical about it. Oh, we're you're stooges for one side or the other. And as you know better than anyone, it's often a thankless job.
- [49:53]
Nico Perino
It's very thankless.
- [49:54]
Jakob Mushingama
Yeah, but I think that's, you know, when you create a record over a long time where you actually show that you're principled and consistent, that actually does has a better ability to change hearts and minds. And I think that is absolutely necessary. Unfortunately, I think there was like a whole cottage industry of free speech tourists, if you like, whose principles have completely imploded. And I think that does not help the cause.
- [50:21]
Nico Perino
Yeah, over the past 10 years there was that cottage industry that at the time wasn't a cottage industry. You try to assume the best intentions, but we were locking arms with a lot of folks on the free speech bike, particularly on college campuses, fighting against the excesses of particularly the progressive left. But now that power has shifted, the vibes have shifted. You have a Republican president, you have two Republican houses of Congress. I wouldn't say necessarily a lot of these folks that we've locked arms with are always Defending the censorship. They're just remaining very quiet.
- [50:56]
Jakob Mushingama
Yeah. And some. And some are defending, like, yeah, I
- [51:00]
Nico Perino
was careful with my language there. Yeah.
- [51:02]
Jakob Mushingama
Well, the other side started it, which is like the sandbox.
- [51:07]
Nico Perino
Yeah. So it wasn't a principle. It's okay to do it if the other side did it first. It just doesn't make sense.
- [51:12]
Jakob Mushingama
And where do you start? Like, where do you start the tallying of which side started it?
- [51:17]
Jeff Kosseff
Yeah.
- [51:17]
Nico Perino
Do we go back to the federal in 1798 and say, well, they started the censorship first and then everything from there on forward is tit for tat? I don't know. But yeah, that has been one of the great disappointments of the last couple of years. Or all these so called free speech
- [51:33]
Jeff Kosseff
warriors who are not.
- [51:35]
Nico Perino
And I think that gives free speech a bad rap. People see it as just a political tool to win victories in the short term, rather as this principle that needs to be vindicated because it's what differentiates America or any other country from those who would prevent you from being who you are and speaking in your mind. So, again, yeah, very disappointing. Are you guys taking this book on the road or just to this podcast?
- [52:01]
Jakob Mushingama
Yeah, we're going to. We did a podcast. This is our second podcast today. We did politics and prose pre launch yesterday. We're doing a Cato live event book forum on Thursday. I think we have a. Yeah, we have like seven podcasts lined up this week and then we're going to New York next week to record something with the good Nick Gillespie.
- [52:25]
Nico Perino
I heard.
- [52:25]
Jeff Kosseff
Yeah.
- [52:26]
Nico Perino
Mr. Farber's loft.
- [52:27]
Jeff Kosseff
I heard.
- [52:27]
Nico Perino
Yes. Cool. Well, thank you guys for coming into the studio here. Again, the book is the Future of Free Speech, Reversing the Global Decline of Democracy's Most Essential Freedom. I have the galley copy here, uncorrected proofs, but it is available today. The authors, of course, are in studio with me, yakimushingama and Jeff Kossif. Gentlemen, thanks again for coming on the show.
- [52:48]
Jeff Kosseff
Thanks so much.
- [52:49]
Nico Perino
I am Nico Perino and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Bruce Jones, Ronald Baez, Jackson Fleagle and Scott Rogers. The podcast is produced by Emily Beeman. To learn more about so to Speak, you can subscribe to our YouTube channel, our substack page. All these feature video versions of the conversation. We're also on X where you can search for the handle Free Speech Talk. If you have feedback, you can send that to sotospeakfire.org again, that is, so to speak, fire.org and if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify. Wherever else you get your podcast is fine as well. Reviews do help us attract new listeners to the show. Speaking of Algorithms helps Juicy Algorithm helps more people find the show. And until next time, thanks again for listening. The foundation, for instance Individual Rights and Expression Fire and the Flame logo are registered trademarks of the foundation for Individual Rights and Expression.