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

Summary

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.

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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.

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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.

Transcript

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[Caroline Cornett]

I'm Caroline Cornett, intern at Lawfare, with an episode from the Lawfare archive for March 15 to 2025. On President Trump's first day in office, he issued an executive order purporting to restore freedom of speech, alleging that the prior administration had infringed on constitutional rights under the guise of combating misinformation, disinformation, and malinformation. And just this week, Meta announced it would begin testing its new community fact checking system using the same algorithm as Elon Musk's X, which critics claim will increase misinformation on the platform. For today's Archive episode, I selected an episode from October 6, 2023, in which Alan Rosenstein sat down with Jeff Kossif to discuss his book Liar in a Crowded Freedom of Speech in a World of Misinformation, in which he describes and defends the First Amendment's robust protections for false and misleading speech. They spoke about the book, how new technology both supercharges misinformation and provides new tools to fight it, and more.

[Alan Rosenstein]

I'm Alan Rosenstein, associate professor of law at the University of Minnesota and senior editor at Lawfare, and This is the Lawfare Podcast for October 6, 2023 the First Amendment protects speech, but what kind? True speech, sure. But what about false or misleading speech? What if the speech is harmful? After all, you can't yell fire in a crowded theater. Or can you? To answer these questions, I spoke with Jeff Kosseff, who's an associate professor of cybersecurity law in the United States Naval Academy's Cyber Science Department and who's also a contributing editor at Lawfare. Jeff is releasing his latest book this month, titled Liar in a Crowded Freedom of Speech in a World of Misinformation, in which he describes and defends the First Amendment's robust protections for false and misleading speech. I spoke with Jeff about the book why you sometimes can yell fire in a crowded theater and how new technology both supercharges misinformation and provides new tools to fight it. It's the Lawfare podcast October 6th Jeff Kossif on why the First Amendment protects false speech before we get into the book, let me ask a question that I've been wondering about for a while. One of the things that you are well known for, besides your general expertise on all things First Amendment, is your allergic reaction, especially on Twitter, whenever anyone claims that you can't yell fire in a crowded theater. And so I would just love to start by asking you why you dislike that statement so much. I mean, is it really the case that you can yell fire in a crowded theater? I mean, it seems at least Representative Jamal Bowman recently found out that at the very least, you shouldn't pull a fire alarm in a crowded House of Representatives.

[Jeff Kossif]

Yeah, so I think for the Bowman case, I think that's actually one of the few times that I actually will accept someone comparing something to yelling fire in a crowded theater, because that's actually a good comparison where you actually have similar beats behaviors at issue. And the problem with people talking about 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, such as what was the person's state of mind was reasonable for them to believe there was a fire? Were they in a play where fire was one of the lines? But there are times when if you intentionally shout fire falsely in a crowded venue and cause harm, that you could actually face liability, something like a disorderly conduct citation. But that's not the problem with fire in a crowded theater because nobody other than possibly Hugo Black, who's been dead for a long time, thinks the First Amendment is absolute. The problem is that the Supreme Court has narrowly defined specific categories of speech that are not protected and said, we don't have this ad hoc balancing test for just anything we don't like. And when people say fire in a crowded theater, they're almost always just using it as almost a cheat code to say, well, of course the First Amendment doesn't protect this speech because you can't yell fire in a crowded theater. And more often than not, when they're saying fire in a crowded theater, the speech that they want to put someone in jail for or have someone sued or fined for actually is protected by the First Amendment. So that's the big problem with fire in a crowded theater. Now, pulling a fire alarm, if that's what happened, and I don't know all of the circumstances behind what happened with Congressman Bowman, that false alarm, pulling an alarm falsely, that's not protected speech. So that's actually something where the comparison is valid. I'll let that slide.

[Alan Rosenstein]

So I think this is actually a nice framing for the book. And you've written a number of books on speech. You wrote a really fabulous, I think, the definitive history of Section 230. And then you've also written a great book more recently on First Amendment protections for anonymous speech. So why did you choose the first one, protections for false speech, as your next topic? In particular, why. Why now did you feel like it was a good time to write this book?

[Jeff Kossif]

Well, I'd been really following and participating in a lot of debates around Section 230 in particular. And one of the big criticisms that people would have of section 230 is they'd say, well, it allows platforms off the hook for misinformation. And my reaction to that is, well, maybe if you're talking about defamation, that could be true because it just says that you sue the person who posted the content and not the platform. But I would push back and say, well, but there's not a general exception for misinformation to the First Amendment. So with or without Section 230 for most misinformation, you're not going to be able to sue a platform or the speaker. And there really started to become a lot of proposals in the United States and also globally to address fake news, whether it be about election administration or vaccines or Covid precautions. And so much of what was being proposed by people who otherwise, I would think, should know better is protected by the First Amendment. And when I would say that, I would often get a response, well, you know, all that's required for a Change to the First Amendment is five justices to say, hey, let's narrow these protections a little bit. And I thought that it was really necessary to take perhaps a difficult position of saying not only what the First Amendment protects in terms of false speech, but why it should continue to protect that false speech and the various reasons why courts and legislatures over the years have imposed these protections.

[Alan Rosenstein]

So the first half of the book is sort of a series of chapters where you march through some different categories of false or misleading or harmful speech that is nevertheless protected by the First Amendment. Without recapitulating every sort of detail of the book, what do you think are the most important categories of false but protected speech, either sort of in and of themselves or just that people don't realize. And therefore it's really important for someone to make very clear that such and such is in fact protected.

[Jeff Kossif]

Well, so I think a lot of things involving science are protected for various reasons, both because we want to encourage debate and we want, we and the scientific consensus might change, and also because it's not terribly effective for the government to say, you cannot say, make this scientific claim. And you think about, and I talk in the book quite a bit about during COVID the very earliest days of the pandemic, there was the government line that Covid is not airborne. Remember, we all had to wash our hands for 10 minutes a day and.

[Alan Rosenstein]

Just disinfect grocery bags. That was fun.

[Jeff Kossif]

Yeah, it was all surface based and masks wouldn't give any protection and don't buy masks. And then that started to change. And that's fine. I mean, that's, that's the point of science is that you have, you allow these hypotheses to be tested. But the problem with saying we're going to regulate this misinformation is that that freezes and stops the debate altogether. And I encounter so many people who are certain that there would be no problem with the government being able to declare the one truth and tell people, you cannot question this other truth. And I think that not only does that stifle scientific debate, but that also is not terribly effective because people will probably start questioning the government line even more if the government is threatening people with litigation or prison time because they're questioning what it's saying. And so, so, but, but there, there are far too many people who do think, you know, misinformation as a category is exempt from the First Amendment. Now there are certain types of misinformation. If it rises to the level of defamation and meets the various common law and first Amendment Standards, then yeah, that's, that kind of misinformation can be outside of the scope of First Amendment protection. And Fox News was about to learn that right before they settled for $787 million with Dominion. So it's again not absolute, but you have to get very granular and look at the actual legal tests, not just wave a magic wand and, and say we don't like this speech, so it's not protected.

[Alan Rosenstein]

So let's stay on the topic of scientific information. As you point out, I think very correctly, one reason to provide strong protections for even incorrect scientific claims is because that's how science progresses. And yet there does seem to be whole swaths of society and the economy where the government actually regulates scientific information very carefully. So I'm thinking here of the FDA regulating often in extreme detail what exactly a pharmaceutical company can claim about its products. And in fact the one area in which the FDA does not do that, so so called supplements, is actually a cesspool of nonsense. You know, how do you square sort of those two, those two facts that seem at least in intention?

[Jeff Kossif]

Well, so I think that one of the categories that does receive less protection is commercial speech. So claims about products and services. And there's good reason for that. So I mean, the Congress, right at the beginning of the pandemic passed an amendment to the Federal Trade Commission act that gave the FTC even stronger powers under its unfair and deceptive trade practices statute to go after companies that, that were peddling bogus Covid cures with the idea that this is that commercial speech overall is different from scientific debate because it's actually, it's a company trying to sell a product or service. So I think it's fine that the FDA has those powers, but I also think that's different than saying, you know, a doctor or even a spectator on social media or in a newspaper cannot come out and question vaccines or masks or various other scientific conclusions that the government's reached.

[Alan Rosenstein]

Well, let's stay on that because I actually do think the issue of commercial speech and the lower level of First Amendment protection that it provides or that it gets, I actually have always thought that that was sort of an interesting part of First Amendment doctrine and sort of often under theorized because if you actually look at across society the amount of speech that just does not fall within First Amendment protections, it's actually enormous, right? I mean the category of commercial speech is very big, right? We're talking about labeling, we're talking about anything a public company can say, you know, we're Talking about SEC regulation, we're talking about, I mean, there's huge swaths of the economy are regulated primarily through the regulation of speech. And I guess what I've always struggled with is how to neatly draw the line between those two. Right. If free and open debate, including of mistaken facts or misinformation or lies or whatnot, is so important to, to democracy, and I tend to agree with you on that point, we do then seem quite cavalier about how much speech actually is regulated in society. So maybe the answer should be we shouldn't regulate that speech. But I would hate to live in a world in which there were no limitations on what a public company could claim about its finances when selling stocks or what a pharmaceutical company could claim about its new medicine. And I just never quite known how to harmonize those things and where to draw the line between speech that's merely commercial and speech that's otherwise important part of democracy or autonomy or expression or whatnot.

[Jeff Kossif]

Yeah, I think that it gets down to the nature of what is being communicated so as it sell a product or service. And I agree there are some difficult blurry line cases, but there are for all areas of the First Amendment. So for example, one thing that I think it's dangerous is that people will repeatedly state, you know, Citizens United was the first time that a company ever received First Amendment protection, which is nonsense. I would point them to the New York Times versus Sullivan, which I write about in the book, which was decided in 1964, which gave the New York Times substantial protection. And that was based on an advertisement. So you could even say, you know, was that a product or service? But, but the context of that was, was an editorial claim. And I mean, I think that's even a closer call. But. Yeah, I mean, I, I think that there, there are some closer calls, but I, I think it ultimately comes down to what the speaker is actually trying to do with the information. Are they trying to sell a product or service?

[Alan Rosenstein]

So let's then talk about some of the different justifications for strong First Amendment protections. The one that you start with and the one that I think is generally used by the majority of folks who talk about free expression and free speech, even if they do so implicitly, is the idea of the marketplace of ideas. And you give what I'd say is sort of a qualified defense. Right. You recognize the flaws of that argument, but I think you also push back against folks who try to sort of throw away the marketplace of ideas as a useful model for how speech works. So just describe what the argument is, and where you think it's strong, where you think it's weak, and why you think it's still a useful part of First Amendment discourse.

[Jeff Kossif]

Yeah. So the marketplace of ideas, interestingly enough, at least in US Judicial opinions, was popularized by Oliver Wendell Holmes, who just months before this was in 1919, just months earlier, actually, was the one who popularized the fire in a theater line. And over the summer, in between the two opinions, he, Thomas Healy, wrote an amazing book called the Great Dissent, which talks about his year of basically being informally lobbied by some fairly radical free speech scholars about how he was wrong about saying the First Amendment is very limited. And he wrote a dissent in a case called Abrams vs United States in late 1919, where he basically said that rather than immediately resorting to putting someone in prison for their speech, this, in this case, it was someone who's criticizing the. The US Military efforts in Russia that he said the ultimate good desired is better reached by free trade and ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market. And so it's the idea that, you know, the truth and the good speech will rise to the top and the market will take care of it. It's a very, very laissez faire approach, which has been the underpinning of so many other court opinions since he wrote that. And I think that while it has been very influential, it's not been the only reason why false speech is protected. And as I write about in the book, it's also not completely satisfying because this is not a perfectly functioning market. Everyone does not have equal access to the marketplace, I would say. And ever since everything does go back to section 230, I would say that section 230 does help with that marketplace by I, I think it was responsible for the business models for many social media and other platforms where user content is posted. And so I think that at least gives people some bit of entry. So even if you're not rich and powerful, you still could participate in the marketplace of ideas. But even then, some random person with a hundred social media followers is not going to have Kim Kardashian's access to the marketplace of ideas. People in marginalized groups often do not have the same access to the marketplace of ideas. So there are some pretty big shortcomings of that. But again, that's not the only reason why courts and legislatures have protected false speech.

[Alan Rosenstein]

Well, so let me actually pick up the point about marginalized groups, because I think that's actually, at least from intellectual circles, which tend to lean sort of generally left, at least in today's world. The biggest pushback you get when talking about the First Amendment or values of free expression generally is a skepticism that the marketplace of ideas really is a fair market and a sort of corresponding worry that the First Amendment really simply kind of reinscribes power relations and simply helps those who are already the most powerful. Right. Marianne Franks, who's a professor at GW a few years ago wrote a book called the Cult of the Constitution where she sort of puts the First Amendment in that category. And I think a lot of skepticism on college campuses about free expression also comes from the concern that people are only using free expression to harm people that are already disenfranchised. And I'm curious, obviously you don't fully accept that critique, but I wonder if what you disagree with it is the empirical claim that the First Amendment and free expression simply helps the powerful or more of a, well, even if it is kind of unfair, there's no better system. We have to take the good with the bad.

[Jeff Kossif]

I think that it's both. I mean, I think free speech and sort of the exceptionalist free speech that we have in the United States compared to most other countries in the world, is more empowering to groups than a system in which the people in control get to decide what people say. And I mean, that gets to be on the marketplace to other reasons. I write about Alexander Meiklejohn. He basically had the main competing theory for free speech protections to homes in the marketplace. And that's this idea of self governance that you need to protect speech. And he advocated for very strong protections for public speech because that's the only way that you could have an informed public that can choose their leaders and participate in democracy. And so I think when you look beyond, because I think I agree with a lot of the critiques, that the marketplace is not a terribly satisfying justification by itself, because it's not. You can't just say, oh yeah, just go participate in the market. That's not always going to work. But there's other reasons. And when we in the book, I look at other countries that all have their justifications for passing fake news laws and they don't have anything like the First Amendment or anything even close. And they're able to do it. And they have all of their rational justifications that misinformation is poisoning democracy and all, all of their reasons. But even in sort of the Western democracies, what you see is politicians, once they get power, they will use that power for their own ends and they and they will use it to suppress dissent. And you see that with regulations on false speech. So I think the self governance theory, when you combine it with Marketplace and some other reasons, I think that paints a fuller picture of why it becomes dangerous to start whittling away at the first Amendment.

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[Alan Rosenstein]

I want to turn to the question of the First Amendment in the context of new technology. One point that you make is that the First Amendment has often shielded publishers of factual information from how that information is used. So you give the example of a publisher of a encyclopedia of mushrooms who was sued after someone used it and accidentally harmed themselves because they ate the wrong mushroom. Because mushroom identification is hard and tricky and high stakes. And I'm curious whether you think the existence of generative AI tools like ChatGPT and the potential for orders of magnitude more false and dangerous information. Right. Simply because these models hallucinate and they make up facts. Does that change at all your view of where the balance should be struck? On the one hand, in terms of protecting publishers, on the other hand protecting consumers.

[Jeff Kossif]

Yeah. So I mean, I talk in the book about this justification based on personal responsibility of the recipient of the information. And I I think that AI is getting a lot of attention. It has been for much of this year, understandably. But I also think it becomes dangerous to really revamp First Amendment doctrine and protections based on hypothetical concerns about AI. And I mean, perhaps they will come true. But the other, the flip side could be that if people exercise just a modicum of responsibility that they're going to be more cautious with the information that is coming from AI and perhaps want to do more to verify it before acting on it. And I Think maybe that's not going to happen. Maybe I'm being too optimistic. But I really worry that. I mean, I, I can't even count the number of reporter calls that I have about these crazy hypotheticals about AI mass defaming people. And, but, but the real test cases they have is someone types into chat GPT asking about themselves and chat GPT says something wrong to them. And you know that that's a little different. And so, so I, I think it's important to think, think about, but I also don't. That's not really at the top of my concerns in terms of false speech and the harms that it could cause.

[Alan Rosenstein]

I mean, more generally, though, I guess if we're entering into a world where the amount of speech is about to expand exponentially because of generative AI, do you think that has implications one way or another for how the First Amendment should think about that speech?

[Jeff Kossif]

You know, I, I don't think that, that. I, I think the fact that we're going to be having a lot more speech does not. I think we still need to stick with our principles. And I mean, this is the whole idea. I mean, in Rick Hassan's book that came out last year about the cheap speech that came from. What Eugene Volok really presciently predicted back in the 90s with the Internet was that, yes, we are going to have more speech, but at the same time, I think one thing that Rick did really well in his book was he set up a framework for dealing with this. And for him, it was in the political and elections context that really stuck to the general principles of the First Amendment, but dealt with this large amount of new speech in an intellectually consistent manner that did not stray from the protections. And so I, I think with AI, it's gonna, we're gonna have to do the same thing, and it might be more challenging. But I, I do think that, that that's what we'll have to do rather than just say, this is just too much speech, we're gonna have to really overhaul how we deal with speech regulation.

[Alan Rosenstein]

Another new. Although at this point it's not that new technology that has, I think, huge implications for first. The First Amendment is the rise of social media platforms and the fact that today so much of speech is expressed on these private platforms. And, you know, one can look at that and say, well, whatever you think about the First Amendment, it's just not that relevant anymore because ultimately, if I am spending my time speaking on Twitter or Facebook or TikTok or whatnot, it's really the decisions of private entities that are going to really determine whether or not I can speak. And so the First Amendment, while obviously still playing a role somewhere, is just no longer the most important protection I have. The protections that I have are contractual or just based on the business imperatives of Mark Zuckerberg or Elon Musk. And I'm curious what you think of that potential displacement of the First Amendment by market forces.

[Jeff Kossif]

So I'm going to disagree with you. I still think the First Amendment's the most protected because as scary as Mark Zuckerberg and Elon Musk are, they cannot put you in prison as of now at least. And I think there are other countries where people are going to prison for what they post on social media. And I think we might take that for granted a little bit. So, yes, Elon Musk and Mark Zuckerberg can kick people off of social media. In a better world, there would be more competition. I write about in the book some of these alternative social media platforms and the federated technologies and more, more that will develop. And I think that this is another area where the marketplace is far from perfect, especially because of things like network effects, which make platforms more valuable when they have more users. So you're never going to have a perfectly functioning market where people can easily go from one social media service to the other if they don't like their moderation system. But I think that the moderation policies of platforms are not nearly as scary as, let's say, Russia saying you go to prison for 15 years if you incorrectly call it an invasion of Ukraine. Those are very different things.

[Alan Rosenstein]

I think it's a very fair point. Maybe then sort of drawing a sort of closer to sort of contemporary debates, then, you know, you come out, I think, pretty strongly against attempts by the government, and it's mostly been state governments, or it's been exclusively state governments so far to limit what technology companies can do in terms of content moderation. So, you know, obviously, famously here the Florida and Texas laws that the Supreme Court has agreed to hear next year in the NetChoice cases, and I understand the precedential argument and where Tornillo comes in and all of that, but I'm curious why you think that sort of putting all the precedent to aside, the best expression of the First Amendment is to limit the government's ability to limit private platforms, ability to kick people off those platforms. Because at least the way I see it, there's a good First Amendment argument that at least the values of the First Amendment, if not the specific provisions of the First Amendment should actually encourage that kind of government regulation if it's done well, which it may not be.

[Jeff Kossif]

So I'm kind of boring old school First Amendment guy who looks at the state action. And so I don't want the government forcing social media platforms to kick people off or to keep people on. I want the government out of it. And I understand the argument about free speech values. I get that. I'm very concerned and I think overall, and a lot of people will disagree with me, I think the 5th Circuit largely got it right in the Missouri v. Biden case. I think there are some flaws in some of its analysis, but that's the case involving jawboning, this coercion or significant encouragement by the government to kick people off or delete certain speech that I don't like them doing that I don't think they should. But at the same time, a social media platform should have the First Amendment right to decide whether it wants that speech on its platform. And if a company wants to be very aggressive about speech that it views as hateful or misinformation, the government should not tell the company that it cannot do it. It might be a very unwise choice and the company might end up losing users, but it also might lose users if it's not aggressive enough. And ultimately this should be an issue that is dealt with by the marketplace and not by a mandate. I mean, you look at the initial Florida that restricted moderation and it had an exemption for is that had theme parks. This is. That's the kind of nonsense that you're going to get when you have the government dictating content moderation rules.

[Alan Rosenstein]

So, and I get that right. And the Florida law, not to mention the Texas law, has, has huge flaws in it. But I just want to understand sort of the nature of the objection to those kinds of laws. Right? Is it sort of fundamental or is it based on the details of what we've gotten so far? Because it seems to me that while your argument is the straightforward application of precedent, we can separate the question of whether the government can explicitly or implicitly pressure companies to take stuff down, which I think we can all agree is not good under the First Amendment. But that just seems very different than the question of whether the government can force companies to keep things up. Because if the answer is to get the government out of this entirely, then it seems like a lot of the other remedies that we'll get to later on the conversation, whether it's antitrust to break up monopolistic platforms or whether it's civics education or whatever the case is. I mean, that's also potentially coercive. And I guess. And I feel like I'm sort of picking on you for this when more. It's just kind of a frustration of mine generally in this debate, there just seems to be this kind of reflexive resistance to letting the government get involved in this when it seems like that would actually really enhance First Amendment values.

[Jeff Kossif]

I think the government getting involved in speech regulation never enhances First Amendment values. And I would actually push back on your idea that everyone agrees that jawboning is bad.

[Alan Rosenstein]

Well, I just think you and I.

[Jeff Kossif]

Think it's bad, but I think there's actually a lot of people who at least see what happened in Missouri v. Biden and say it's fine. And so I think the problem is that when you, you think about the baseline. Let's say that, let's say that a state were to say that social media platforms cannot do any content moderation, that every user, every bit of user content that comes in, they had. They have to transmit that. That would make the platforms unusable because you would have beheading videos, you would have all sorts of, you'd have spam, you'd have. Even if you said they can only moderate content that's not constitutionally protected, there's still a lot of really useless garbage that would make the experience almost unusable for platforms. Okay, you say, well, they can moderate spam, and they can. And the government will say this is also what you can moderate. That is the government making choices about what content the platforms can take down. And these are people who have to run for office, who have to collect campaign donations, who have to stand for election. And now suddenly they are the ones who are influencing what content the platforms are able to take down. And I mean, that is just so susceptible to abuse that it's. There's not a workable solution for, for it. Because when you have, when you have a law, that's the government making value choices. And I don't like them doing that when it comes to speech.

[Alan Rosenstein]

So let's then turn to the things that you think the government can do usefully. And one of the things that you suggest is increasing civics education and increasing media literacy. And I will admit I'm often skeptical of those kinds of solutions when I read sort of public policy and law books. I feel like there's like, often if we just taught people more civics, they'd be better people and that would solve these problems. But you actually Give a really interesting example of why for this particular case, increasing education might be useful. And in particular, you talk about what Finland has done with respect to Russian propaganda. And so I was hoping you could just describe that and why it's been so successful and what something like that could look like in the US Context.

[Jeff Kossif]

What Finland has done, because Finland has been dealing with Russian propaganda for quite some time. And what they've done is they've really embarked on a K through 12 and really post secondary initiative to teach media literacy. So starting with kindergarten, they teach people about fairy tales. And what they do that I think is so effective that I think, unfortunately a lot of people who claim to be disinformation experts in the United States don't do is that they don't make many value judgments about the content. They're not telling people, hey, this specific commentator is probably linked with the Kremlin somehow. What they do is they teach more about the tools to verify the information. So how do you look for the source behind the story? What, how, what, what are ways for you to tell that this is a news outlet that actually has reporters and editors and that sort of thing? And I think that's really important. And that's missing in at least in a lot of parts of the United States where you know that you, you don't necessarily get those tools for, especially how to deal with information that you're receiving on the Internet. So it's not saying this is or is not fake news, because that gets a little Ministry of Truthy for the government to be saying that, but instead saying this is, you know, if you were to confront this, these are some ways that you might be able to verify.

[Alan Rosenstein]

I want to close out our conversation by asking a couple of sort of larger, bigger picture questions. And the first is I'm going to characterize your argument in a particular way. And I'm curious if you agree with. Seems like you are generally pretty satisfied with the legal status quo here, whether it's how the First Amendment has generally been interpreted or whether it's how Section 230 has generally been interpreted. You seem to think that we're at a good place. My questions are twofold. One, is that an accurate description of your argument? And two, how sure are you that the current status quo happens to be the optimal equilibrium? Right? Because maybe one could say, well, what's really happening here is we just got really used to the status quo and now people who are suggesting First Amendment reforms. That's scary. But it's scary largely because we don't know what that would look like rather than because we think it's substantively bad. Or to put another way, why should we not be skeptical of an argument that's like, everything is fundamentally fine, don't mess with the law on this issue.

[Jeff Kossif]

So I definitely don't think everything is fundamentally fine. And I'm also not necessarily advocating for the status quo to remain forever. My broader argument in the book is that we have to be far more careful than many people have been in suggesting reductions in free speech protections in the United States to deal with misinformation, because we often don't think both about how effective they would be and also the potential for abuse. So I'm not saying, you know, that, that the Supreme Court can never rethink some of its protections. Of course it can. And I think supr. I mean, we've seen in the past few years the Supreme Court definitely rethinks many of its precedents that people had assumed were settled. And I'm under no illusions about being able to do that in the First Amendment context. And there might be situations where that might be called for and it might be in the best interests. But what I'm asking is for people to just slow down a little bit in their proposals. And this is coming from the left and right. This is, and I should state I'm speaking only on my behalf, not on behalf of the DoD, Department of Navy and Naval Academy. But I will say that I hear things that really scare me from all sides of the political spectrum. A lot of the proposals to really regulate false speech have come from the left. And it's people who are very concerned about people on the right being a threat to democracy. So they say, well, the way that we deal with that is we put people in prison for making false claims about election administration. That's something that Washington State's governor supported last year. And I think that if you're really concerned about people who are authoritarian and a threat to democracy, it baffles me that you would advocate for a law that if they got into power, they would be able to jail their political opponents. Like, it's so incredibly short sighted. And that's been my frustration over the past few years, is to see people who, they have good intentions. I mean, they, they really legitimately think that there is a true threat to democracy. And whether you agree or disagree, that's their thought. But they don't think the next step out, which is, okay, well, let's say that you reduce the speech protections and let's say you even get courts to agree with you, you're not getting them back. If you lose the election and your opponents end up in office, they're not going to say, oh, those, those speech restrictions, it was only for you guys because you're the good guys. We're never going to use them. I mean that it's so incredibly shortsighted for people who claim to care about the threat of authoritarianism. So that, that's my argument is that we need to be very careful and we're, we are one of the remain few remaining sovereigns that has this level of free speech protections. And I worry that if we don't hold that, we're really going to see this great recession of speech globally.

[Alan Rosenstein]

I think that's a good and sobering way to end the conversation. It's a really, really good book, Jeff, and it's a big contribution, especially for those who are kind of less familiar with the really broad protections the First Amendment provides. And so I really urge readers who are interested to read the book. It's also as all of your stuff is compulsively readable, which is a rare thing for a law book. So, so Jeff Kossif, thanks for coming on the show.

[Jeff Kossif]

Thanks so much.

[Alan Rosenstein]

The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jan Patya Howell and your audio engineer. This episode was Noam Osmond of Goat Rodeo. Our music is performed by Sophia Yan. As always, thanks for listening.

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