Jeff Kosseff: Why False Speech Deserves First Amendment Protections
Dec 6, 2023
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Jeff Kosseff, cybersecurity law professor and author, discusses legal protections for misinformation, blurred lines between private companies and government, and reasons behind limits on the First Amendment. They explore the origin of 'you can't yell fire in a crowded theater,' fake news origins, Stolen Valor Act, false speech and misinformation, perspectives on crisis communication, and the importance of media literacy.
Misinformation should be legally protected as part of the freedom of speech to avoid overhauling the First Amendment.
Understanding the true meaning behind legal precedents, such as the 'yelling fire in a crowded theater' phrase, is crucial in addressing concerns about misinformation.
Combating misinformation requires honesty and transparency from the government and other sources, media literacy and civic education, and cautious government regulation to balance freedom of speech and prevention of fraud.
Deep dives
The Importance of Protecting Free Speech and Misinformation
This podcast episode explores the importance of free speech and the challenges posed by misinformation. The guest, Jeff Kosseff, discusses the need to protect free speech rights and highlights the value of the First Amendment in the United States. He argues against overhauling the First Amendment in response to concerns about misinformation, emphasizing that alternative solutions should be explored. Kosseff also addresses the blurred line between private companies and government actors, citing examples such as the Twitter and Facebook controversies. He further examines why some journalists are calling for limits on the First Amendment, expressing the need to understand and preserve the fundamental value it holds in democratic societies.
The Origin and Misinterpretation of 'Yelling Fire in a Crowded Theater'
The podcast delves into the origin and misinterpretation of the popular phrase 'yelling fire in a crowded theater'. The phrase was derived from a 1919 Supreme Court case involving a socialist distributing flyers, and Justice Oliver Wendell Holmes used it as a metaphor to uphold the conviction. However, the metaphor has been frequently misused to restrict freedom of speech. Jeff Kosseff sheds light on how the misinterpretation of this phrase has been used in various cases where the government or private entities have attempted to restrict speech. He emphasizes the importance of understanding the true meaning behind these legal precedents when addressing concerns about misinformation.
Addressing Misinformation and Promoting Transparency
The podcast episode discusses how to address misinformation effectively. It highlights the need for honesty and transparency from the government and other sources in combating misinformation. The example of Johnson & Johnson's response to the Tylenol poisoning incident is presented as an exemplary case of a corporation being honest and open in a crisis. Additionally, the importance of media literacy and civic education is emphasized, particularly in K through 12 education. The focus is on equipping individuals with the tools to critically assess information and navigate the vast amount of content available online. The episode also raises concerns about potential government overreach in regulating social media platforms, emphasizing the value of marketplace pressure and independent decision-making by such platforms.
Misinformation about Voting
The podcast discusses how the Supreme Court has suggested that the government could regulate intentional falsehoods about the mechanics of voting, such as false information about election dates or polling locations. However, there is a challenge in determining the boundary between intentional misinformation and humor, as the interpretation of jokes can vary among individuals.
Stolen Valor and Free Speech
The podcast explores the case of Javier Alvarez, who falsely claimed to have received the Congressional Medal of Honor. The Supreme Court ruled that the Stolen Valor Act, which made it a crime to lie about receiving military honors, was unconstitutional because it did not have a qualifier. The court acknowledged that not all falsehoods are protected by the First Amendment, but argued that laws should be more carefully tailored to allow for freedom of speech while preventing fraud.
His new book is his boldest yet. It's called Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation and I liked it so much that I blurbed it, calling it "a smart, wry, deeply researched and utterly convincing defense of legal protections for 'misinformation' in an age when we are less likely to agree on basic facts than ever before."
We talk about why "misinformation"—however defined—should be legally protected, how the boundaries between private companies and government are getting blurrier and blurrier, and why so many journalists are calling for limits on the First Amendment.
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