Jeff Kosseff on Why the First Amendment Protects False Speech
Oct 6, 2023
auto_awesome
Jeff Kosseff, Associate Professor of Cybersecurity Law, discusses the First Amendment's protection of false speech, the misconceptions around 'yelling fire in a crowded theater,' and the impact of new technology on misinformation. They also explore the implications of generative AI on the First Amendment and the importance of education in countering propaganda.
The First Amendment's protection of false speech is crucial to prevent the abuse of power by politicians and maintain a healthy marketplace of ideas.
The 'fire in a crowded theater' analogy often misrepresents the First Amendment's protections and leads to misunderstandings of free speech rights.
Deep dives
The importance of protecting false and misleading speech under the First Amendment
The podcast explores the concept of false and misleading speech and its protection under the First Amendment. The speaker discusses the common belief that the First Amendment does not protect false speech, using the example of yelling 'fire' in a crowded theater. However, the speaker argues that there are certain circumstances where false speech is protected, and that the self-governance theory, combined with marketplace considerations, provides a compelling case for why it is dangerous to erode First Amendment protections. The discussion emphasizes the need to have a robust legal framework that safeguards free speech, even when it involves false or misleading information, to prevent the potential abuse of power by politicians and ensure a healthy marketplace of ideas.
Exploring the limitations of the 'fire in a crowded theater' analogy
The podcast delves into the limitations of the 'fire in a crowded theater' analogy when discussing freedom of speech. While the analogy is often used to argue against the protection of false speech, the speaker explains that its application depends on various circumstances, such as the individual's state of mind and the context of the speech. The speaker emphasizes that the problem with the analogy is not its accuracy in specific cases, but rather its misrepresentation of the First Amendment's protections. The discussion highlights how the misuse of the analogy often leads to misunderstandings and misinterpretations of free speech rights.
Examining the justifications for protecting false speech under the First Amendment
In his latest book, the guest of the podcast, Jeff Kosseff, explores the different justifications for protecting false speech under the First Amendment. One significant justification is the marketplace of ideas, which suggests that the truth and good speech will prevail in a competitive marketplace. However, the speaker acknowledges the limitations of this justification, including unequal access to the marketplace and the chilling effect of regulating misinformation. The discussion also highlights the importance of protecting false speech in the context of science, where debate and evolving scientific consensus are crucial. The podcast emphasizes the need to carefully balance free speech protections while considering the potential harms of false speech.
Addressing the role of government and technology in speech regulation
The podcast explores the role of the government and technology in speech regulation. The guest argues against government intervention in private platforms' content moderation decisions. While acknowledging concerns about platform power, the speaker maintains that the government's involvement in regulating speech can lead to abuse and value judgments that undermine free speech principles. Instead, the podcast suggests alternatives such as increasing media literacy and civics education to empower individuals to critically evaluate and verify information. The discussion also touches upon the rise of AI-generated content and the importance of adapting First Amendment principles to future technological advancements.
The First Amendment protects speech, but what kind? True speech, sure. But what about false or misleading speech? What if it's harmful? After all, you can't yell fire in a crowded theater—or can you?
To answer these questions, Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare spoke with Jeff Kosseff, who is an Associate Professor of Cybersecurity Law in the United States Naval Academy’s Cyber Science Department and a Contributing Editor at Lawfare. Jeff is releasing his latest book this month, titled "Liar in a Crowded Theater: 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, why you sometimes can yell fire in a crowded theater, and how new technology both superchargers misinformation and provides new tools to fight it.
