The Lawfare Podcast: Jeff Kosseff on Why the First Amendment Protects False Speech

Episode Overview

In this insightful episode of The Lawfare Podcast, released on March 15, 2025, host Alan Rosenstein engages with Jeff Kosseff, an esteemed associate professor of cybersecurity law at the United States Naval Academy and a contributing editor at Lawfare. They delve into Kosseff's latest work, "Liar in a Crowded World: Freedom of Speech in a World of Misinformation," where he robustly defends the First Amendment's broad protections, even for false and misleading speech. This conversation navigates the intricate balance between safeguarding free expression and addressing the pervasive challenges posed by misinformation in the digital age.

1. Introduction to the Episode

At the outset (00:32), Caroline Cornett, an intern at Lawfare, sets the stage by referencing recent developments, including President Trump's executive order aimed at restoring freedom of speech and Meta's controversial new community fact-checking system. This context underscores the ongoing debate about the limits and protections of free speech in contemporary society.

2. The "Fire in a Crowded Theater" Analogy

Alan Rosenstein initiates the discussion by addressing the oft-cited analogy that one "can't yell fire in a crowded theater," questioning its applicability and oversimplification of the First Amendment's protections.

Jeff Kosseff (04:42):
"The problem with fire in a crowded theater is not that it's completely incorrect to say that you can't yell fire in a crowded theater. It depends on a lot of different circumstances... when people use it as almost a cheat code to say, 'the First Amendment doesn't protect this speech,' they are often mistaken."

Kosseff clarifies that while certain speech acts, like falsely yelling fire in specific contexts, may lead to legal repercussions, the blanket application of this analogy fails to account for nuanced situations where speech plays a critical role in public discourse and scientific debate.

3. Motivation Behind Kosseff's Work

Rosenstein probes Kosseff's decision to focus on false speech in his book, especially after his previous works on Section 230 and anonymous speech.

Jeff Kosseff (06:57):
"There are proposals globally to address fake news, whether it be about elections or vaccines... much of what is being proposed is protected by the First Amendment. We need to articulate why this false speech deserves protection and caution against hastily altering constitutional doctrines."

Kosseff emphasizes the importance of understanding and defending the historical and legal foundations that safeguard even misleading speech, arguing that rushed reforms could undermine democratic principles.

4. Categories of False but Protected Speech

Rosenstein asks Kosseff to outline key categories of harmful yet constitutionally protected false speech.

Jeff Kosseff (09:47):
"Much of scientific discourse involves hypotheses that may initially be incorrect... regulating such speech stifles necessary scientific debate... Fox News was about to learn that right before they settled for $787 million with Dominion."

Kosseff highlights that not all misinformation warrants suppression, especially when it pertains to evolving scientific understanding. He distinguishes between general misinformation and actionable defamation, using the Dominion settlement as a case where misinformation crossed into defamatory territory.

5. Commercial Speech vs. Public Debate

The conversation shifts to the regulation of commercial speech, such as pharmaceutical claims, contrasting it with public discourse on scientific matters.

Jeff Kosseff (12:24):
"Commercial speech is different from scientific debate because it's a company trying to sell a product or service. It's fine that the FDA regulates this, but it's different from individuals questioning vaccines or masks."

Kosseff explains that commercial speech is subject to stricter regulations to prevent deception, whereas public debate benefits from broader protections to encourage diverse viewpoints and scientific progress.

6. The Marketplace of Ideas and Its Limitations

Rosenstein explores the "marketplace of ideas" doctrine, seeking Kosseff's perspective on its validity and shortcomings.

Jeff Kosseff (17:52):
"The marketplace of ideas, while influential, isn't the sole reason for protecting free speech. It's not a perfectly functioning market—marginalized groups often lack equal access... but there are other justifications for free speech beyond this metaphor."

Kosseff acknowledges the strengths of the marketplace of ideas in promoting truth and democracy but also points out its limitations, such as unequal access and the presence of Section 230, which influences how information is disseminated online.

7. Marginalized Groups and the First Amendment

Addressing critiques that the First Amendment may disproportionately benefit the powerful, Kosseff defends its role in empowering marginalized groups.

Jeff Kosseff (20:41):
"Exceptional free speech protections empower groups more than systems where authorities control speech. In many countries, authorities use regulations to suppress dissent, which contrasts with the U.S. model where free speech allows for public participation in governance."

Kosseff argues that, despite imperfections, the First Amendment provides a critical platform for marginalized voices to challenge and influence societal norms and policies.

8. Generative AI and Free Speech Implications

Rosenstein introduces the topic of generative AI tools like ChatGPT, questioning their impact on the First Amendment's balance between protecting publishers and consumers.

Jeff Kosseff (28:52):
"It's dangerous to overhaul First Amendment protections based on hypothetical concerns about AI. Personal responsibility and verification of information are key."

Kosseff maintains that while AI poses new challenges, it should not necessitate a fundamental redefinition of free speech protections. Instead, he advocates for increased media literacy and responsible information consumption.

9. Social Media Platforms and Constitutional Relevance

The discussion turns to the dominance of private social media platforms in public discourse and the perceived diminishment of the First Amendment's role.

Jeff Kosseff (32:58):
"The First Amendment remains a crucial safeguard against government overreach. While market dynamics affect platform policies, they don't replace constitutional protections."

Kosseff contends that the First Amendment still plays a vital role in protecting individuals from government-imposed speech limitations, even as private companies exercise control over their platforms. He warns against government mandates that could lead to biased or excessive control over content moderation.

10. Alternative Remedies to Regulating Speech

Concluding the main conversation, Kosseff advocates for educational initiatives as effective means to combat misinformation without infringing on free speech.

Jeff Kosseff (42:51):
"Finland’s K-12 and post-secondary initiatives teach media literacy by equipping citizens with tools to verify information. This approach avoids government-imposed definitions of fake news and fosters independent critical thinking."

He highlights Finland’s comprehensive media literacy programs as a model for empowering individuals to discern credible information, thereby strengthening democratic engagement without resorting to censorship.

11. Final Reflections and Recommendations

As the episode wraps up, Rosenstein summarizes Kosseff's arguments, emphasizing the importance of maintaining free speech protections while seeking effective strategies to mitigate misinformation.

Jeff Kosseff (43:59):
"We need to be very careful in suggesting reductions in free speech protections to deal with misinformation. Many proposals pose significant risks, including enabling authoritarian misuse. Educational and self-regulatory solutions are preferable to legal restrictions."

Kosseff urges a cautious and informed approach to free speech debates, advocating for solutions that preserve constitutional liberties while addressing the challenges of misinformation.

Notable Quotes with Timestamps

• Jeff Kosseff at [04:42]:
  "When people use it as almost a cheat code to say, 'the First Amendment doesn't protect this speech,' they are often mistaken."

• Jeff Kosseff at [09:47]:
  "Regulating such speech stifles necessary scientific debate and could backfire by eroding trust in governmental communications."

• Jeff Kosseff at [17:52]:
  "Everyone does not have equal access to the marketplace... but there are other justifications for free speech beyond this metaphor."

• Jeff Kosseff at [28:52]:
  "It's dangerous to overhaul First Amendment protections based on hypothetical concerns about AI. Personal responsibility and verification of information are key."

• Jeff Kosseff at [42:51]:
  "Finland’s K-12 and post-secondary initiatives teach media literacy by equipping citizens with tools to verify information."

Conclusion

This episode of The Lawfare Podcast offers a compelling defense of the First Amendment's broad protections, even in the face of widespread misinformation and evolving technological landscapes. Jeff Kosseff's arguments underscore the necessity of preserving free speech as a cornerstone of democratic society while advocating for proactive educational measures to empower individuals in navigating the complex information ecosystem. For those interested in a deeper exploration of these themes, Kosseff's book, "Liar in a Crowded World: Freedom of Speech in a World of Misinformation," is highly recommended.