Liar in a Crowded Theater, with Jeff Kosseff

Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and even to tell lies, free (mostly) from threat of state sanction. Our discussion covers:

• The “marketplace of ideas” is better than the government at separating truth from lies.
• Why every other state and Congress should just copy-and-paste California’s anti-SLAPP statute into their code books.
• Is there a free-speech right to ChatGPT, if there’s no human speaker? Yes—there is not just a right to make statements, but also to receive them.
• Jeff was surprised at the critical reaction to his thesis that there may be a right to lie. But thankfully the courts have mostly stood by the First Amendment’s robust protections, receiving an B+/A- grade from Prof. Kosseff.

Jeff Kosseff’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Jeff Kosseff’s book is Liar in a Crowded Theater.
• The California statute prohibiting doctors from expressing opinions contrary to official medical policy as concerning vaccines and perhaps other topics was enjoined by the district court in early 2023: https://www.reuters.com/business/healthcare-pharmaceuticals/california-law-aiming-curb-covid-misinformation-blocked-by-judge-2023-01-26/.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript

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Announcer  0:03  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17  
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal on the California fellow law podcast. We tried to bring our audience of trial and appellate attorneys some legal news, and perspectives they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. Before we

Jeff Lewis  0:32  
jump into this week's interview, which I'm really excited about, we want to thank for casetext for sponsoring our podcast casetext is a legal technology company that developed AI back tools to help lawyers practice more efficiently, efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to M law 200 firms and in house legal departments. In March 2023, casetext's launched co counsel the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy listeners our podcast enjoy special discount on case Tech's basic research at casetext.com/calp That's casetext.com/calp.

Tim Kowal  1:12 
Alright and today we are pleased to welcome Professor Jeff Kosseff to the podcast Jeff is author of the new book liar in a crowded theater, freedom of speech in a world of misinformation. A book that in Jeff Kosseff words explains why courts have set such a high bar for protecting false speech why we should not relax those standards in the face of serious threats and how we can address those threats without defaulting to government censorship. Jeff Kosseff is an associate professor of cybersecurity law in the United States Naval Academy's cyber science department. He is the author of four books and more than 20 academic journal articles. Jeff, welcome to the podcast. Thanks for joining us today.

Jeff Kosseff  1:53 
Thanks so much for having me.

Tim Kowal  1:55 
So, I was pleased when picking up your book to learn that there was another person out there in the world who was becoming righteously nauseated whenever someone parroted the line you can't shout fire in a crowded theater. That quote as many of our audience will know is a is from Oliver Wendell Holmes opinion in the shank versus United States opinion from Nighty night teen I believe to illustrate that, that freedom of speech is not absolute. And it's it's oft repeated by advocates of responsible speech, but it's ironically shorn of its early 20th century context of people actually burning to death in overcrowded gas lit theaters with insufficient exits, something that a context that doesn't really hold true today. But Jeff, tell us if you would, why you wrote liar in a crowded theater.

Jeff Kosseff  2:41  
So my first book was about section 230, which is the law that was passed in 1996. And it protects online platforms, websites from claims that arise from user content and most commonly is used in defamation cases, because someone defames you on the internet, you could sue the person who defends you, but you can't sue the platform because of section 230. And I've had a that book came out in 2019. And section 230 went from this very obscure topic to a presidential campaign issue almost overnight, and you had people on both sides of the aisle really debating about section 230. And one thing that I heard from a lot of people, primarily those who were concerned about too much harmful content on the internet, they would say, Well, you know, if we didn't have section 230, then the platforms can be held responsible for misinformation. And I would have conversations with many of these people saying that's really not true. Because, yeah, if it's misinformation that defamed you, that's correct. But the vast majority of what we consider to be misinformation is constitutionally protected, or it's protected under the common law or by various state statutes. And even if you didn't have section 230, you still could not successfully sue an online platform for misinformation. And that got me thinking, Well, why is that? Why do we protect so much false speech in the United States, and I ultimately concluded that it's overall a good thing. Not all false speech is protected, but a great deal of it is, and while it's not perfect, it's better than the alternatives that we've seen all around the world.

Tim Kowal  4:24  
And it's interesting. So, so the debate has been about section 230, and how it protects social media companies, internet companies from the coming deluge of defamation claims and lawsuits. But But you say that even if we, if we didn't have section 230, there would be some protection under the First Amendment. Is that right?

Jeff Kosseff  4:44 
Absolutely. Yeah. Now, it really it depends on the circumstance. But if you're thinking about something like COVID misinformation, which has been a hot topic, there's not a general cause of action that I think would ever succeed for COVID misinformation with or without section 230 either against the speaker or against the platform. And there are a lot of good reasons for that. One is that it's really hard to define what is misinformation. So you think about what the health public health authorities were telling us about COVID Back in March of 2020, and we were washing our hands constantly and COVID is not airborne, it's only spread via surfaces and don't wear masks. And then you should wear masks, and they may be masks help. And a lot of our understanding of COVID really came about through discussion and more scientific testing and more debate. And there really, I think that it would have been very dangerous if the government could have said, Okay, this is the official word on COVID. If you say anything different, then you go to prison. And that sounds that sounds absurd. But I mean, that that governments and other parts of the world have that power. And I think we're, we're different there that we were not able to do that.

Tim Kowal  6:08 
Yeah, one of the phenomena from that we learned from COVID-19 is that there's a false speech and official speech are not always on opposite sides. Sometimes the false speech is the official speech. And false I don't mean intentionally false, but the science was emerging. And so some of the official scientific lines in the early parts of the COVID pandemic were not, did not bear out to be to be true, not because of any malicious intent necessarily, but just because that's how science emerges. And so if we, if we take a line that says that says, well, we need to be able to to ban or censor wrong opinions or incorrect information that might apply to to official pregnancy Mentos.

Jeff Kosseff  6:50 
Yeah, exactly. And I mean, I think that governments that when you're staying on COVID, governments that tended to be more successful in winning public trust for COVID prevention measures, were the ones that were not so confident in what they were doing that admitted there's uncertainty. And you know, we're going to do the best we can. But there's a lot we don't know. And I think that that kind of humility can really go a long way, rather than saying, okay, the way we're going to deal with this problem, and it is a problem. But the way we're going to deal with this problem is we're going to regulate it to death. That's just not, in addition to chilling a lot of other speech. It's also just not terribly effective.

Jeff Lewis  7:33 
Yeah. Hey, let me ask you a few questions. Let me say, first of all, I really enjoyed the book, I consider myself to be a First Amendment lawyer. And I learned a whole lot from this book. I had never really gotten into the details of the rapper Eminem case, and you laid it out and anybody who's looking for an understanding of the substantial truth, defense, or the just defense, highly recommend this book, let me ask you, you spend some time talking about the marketplace of ideas. And then you launch some criticisms of the idea about how maybe the marketplace of ideas isn't perfect. Can you explain to our audience a little bit about what your criticisms are of this theory of the marketplace of ideas? Yeah, so

Jeff Kosseff  8:15 
the marketplace of ideas, actually, it was also in the United States, at least most prominently articulated by Oliver Wendell Holmes, about eight months after his fire in a crowded theater line, he kind of had a change of heart on free speech issues that some of that intervening summer, but the marketplace of ideas is essentially rather than regulate you let the market deal with good and bad speech and truth and falsity and truth will rise to the top. And I want to be clear, I think that it is a very compelling justification. And it's probably the most prominent underpinning of our the United States current First Amendment doctrine. In the book, I acknowledge the criticisms of it that were that make it so that the marketplace can't be the only justification for freedom of speech. And primarily, it's like any other marketplace theory where not everyone has equal access to the marketplace. So if I go, go and tweet a tweet about something, I might have more success than someone who has fewer followers, but I'll have far less success than Kim Kardashian tweeting about something because she has greater access to the marketplace of ideas than I do and what what some of the criticisms are, is that underrepresented groups tend to not have their voices heard nearly as much and I think I think that's all a very strong reasoning. So I think that if the marketplace were the only reason that we protected free speech, you wouldn't go all that far but we have other reasons as well for promoting democracy that you you need to give critics and journalists and just average everyday speakers the breathing room to speak without being threatened with existential defamation lawsuits for making an inadvertent error. That and that also, we want, as we were talking about with COVID, that we want debate to sort of materialize, and we don't want to end the debate. So so there's a lot of reasons. But yeah, I think there are some legitimate criticisms of the marketplace. Yeah,

Jeff Lewis  10:28 
yeah. Let me ask you this. I really enjoyed your books discussion about the history of the Sullivan case, and especially before Sullivan, the evolution of the actual malice standard came to be from a minority opinion all the way up to the Supreme Court. You know, there's been calls for Sullivan to be overturned and the actual malice standard up and then what do you think? Do you think that it's conceivable that the Supreme Court might take a second look at Sullivan and actual malice and remove that protection for First Amendment? Well,

Jeff Kosseff  11:01 
so I think it's getting less likely, which is good, but I think it's still possible. So we have two Supreme Court justices, Thomas and Gorsuch, who have called to revisit Sullivan, Thomas, every time the Supreme Court gets the chance to even decide whether to grant certain a defamation lawsuit these days, he's writing a separate opinion saying, hey, we need to look at Sullivan again. Fortunately, it seems like they're the only Q which is why I think it's getting less likely. There have been a lot of opportunities recently, and they've been the only ones who have really been calling for that. So you would need three more justices. And I mean, Justice Alito has actually written some free speech, opinions that weren't directly about Sullivan, but would lead me to believe he would not really want to revisit it. And then Kavanaugh and Barrett and Roberts don't seem all that enthusiastic. So I think that right now it's safe. But I think when you whenever you have two Supreme Court justices calling to look at a precedent, you have to take it seriously. Yeah,

Jeff Lewis  12:09 
yeah, of course. Hey, let me ask you mentioned a few times in your book, you make reference to anti slap laws, California has got one of the more powerful anti slap laws in the nation. So your view about anti slap laws do they work? We have a federal anti slap law, I

Jeff Kosseff  12:24 
think my preference would be every state just cut and paste California's anti slap law and then Congress passed California's anti slap law. I think they're really great, because and they go beyond just defamation, but they I think they strike a good balance, where they still allow meritorious defamation claims to go forward. But there are a lot of, frankly, really abusive uses of defamation law, including some, some recent ones around the country, especially in jurisdictions that don't have very good anti slap laws. And I saying that, you know, if you're going to bring a case involving someone's public participation, you need to meet a burden of demonstrating that you have a case. And also if you're bringing this to chill speech, you might end up having to pay their attorneys fees. I think that's, I think that's excellent. And it's disappointing that Congress has really failed, there have been so many bipartisan proposals over the years, because the court there, it's this really kind of messy case law about if you're in federal court, or whether the anti slap law would would apply. And it would just be nice to have some clarity and consistency. Now,

Tim Kowal  13:45  
Jeff, when you were talking, it made me think that, you know, being being a California Attorney under where we have the California is anti slap law, maybe we're spoiled here. And I'm aware that many other states have anti slap laws, and maybe they're not quite as good as California is. But do you have any examples in mind that you can share with our audience of the kinds of kinds of harassing or abusive defamation lawsuits that that squeak by other states weaker anti slap laws, but that that might might have been stopped cold by California stronger anti slap law?

Jeff Kosseff  14:17 
Well, I mean, I think Virginia is a good example. Virginia tends to be Virginia now had claims to have an anti slap law, but doesn't you can barely call it that and they've tried to improve it. But Virginia is often I mean, you're the Johnny Depp Amber Heard case, and that was in Virginia, and I think that I don't know for sure how it would have been had it been in California but very well could have had a much different outcome or would not have been brought at all but I think the there's a court in Fairfax County that tends to have a really disproportionately high number defamation lawsuits and I don't I I can only speculate, but I think that the weak anti slap law in Virginia has got to be part of that. Do

Tim Kowal  15:07  
you ever see any any examples on the other side of the equation where the anti slap law is pressed into service too often, where every case becomes some critical first amendment issue, even if it just involves a garden variety breach of contract? You

Jeff Kosseff  15:22  
know, I haven't I've also not I mean, I tend to really only look at the defamation and defamation like cases. So I'm not as familiar with just sort of misuse or just sort of questionable use of anti slap laws. Yeah, fair enough.

Jeff Lewis  15:40  
Hey, you. The one of the most interesting chapters that I read was chapter three, and the discussion of the fair report privilege and tying it not so much to a speaker's right to speak but the public's right to know and hear especially about government proceedings. And given your discussion tying the rights to the listener, rather than the speaker, what do you think about extending the fair report privilege, beyond news to social influencers to Tim Cole's Twitter account? Should it be expanded beyond news?

Jeff Kosseff  16:12 
Well, so if it's not limited, when you're talking about the defendant using it, it doesn't have to just be a media organization. It's anyone who fairly and accurately summarizes a public document or a public proceeding. So I mean, if I'm just a citizen going on social media, and I went, and I'm quoting from court documents, that fair report privilege is going to protect me even if the underlying claims and the court documents are false. An interesting question, which actually came up in the Fox News Dominion case is should the fair should the fair report privilege be extended beyond government proceedings and extend it to the statements of high profile individuals, and there was a court in New York in the 1970s that I write about in the book that good that it's called the neutral reportage privilege, where basically, as long as you're fairly inaccurately, quoting a public a public statement by a high profile individual about someone else, that that privilege will protect you and the courts kind of really shied away from it. No one really not many other courts adopted this. And it made it difficult because what you would have, you'd have, for example, some political candidate, not an official proceeding, making some really crazy outlandish claims about their opponents. And then the news organizations face a tough choice, because they're not they're not necessarily protected if they report that and it's defamatory. But at the same time, there's something very newsworthy about saying that, hey, this is this crazy thing a public figure is saying. So it came up in the fox case, because one of the defenses that Fox was raising when Dominion sued over all of foxes claims about dominions, voting machines. What they said is, you know, you had the president and the President's allies making all of these claims, of course, we had to report about it, because how would we not that we, I mean, that's our duty as a news organization. And the court said, No, I'm not going to adopt that. But I do think and I mean, I think the fox cases are and we don't know for sure if Fox would have lost since they settled, but it was definitely they would have lost. Yeah, I my, my prediction is they would have lost because I was a media lawyer before I went into academia. And just those text messages are just my worst nightmare. It's just so so many of them. And but but at the same time, I think that Fox did have a, I think Fox, his strongest argument, which was rejected was this idea of neutral reportage. Which was, you know, we've got, I mean, what do you do if you have the president of the United States making these claims? How do you not report this? And I? So I think that's a really tough, that's a tough call. Yeah. Yeah. Now,

Tim Kowal  19:12  
and is that in? Jeff, is that distinguished in your mind from the was did Fox try to use the precedent of, I can't remember the timing of the Rachel Maddow case where Rachel Maddow was sued for her reporting that that someone I think, from OA nn news was really literally on the payroll of the Kremlin. And and then the ruling was, yeah, but no one really listens to Rachel Maddow and takes her seriously. So that's not a that was just a statement of opinion, and not a statement of fact, would that have been a precedent in the Fox News case? That Well, no one really this is all partisan news. We just we don't really think anyone to take it seriously.

Jeff Kosseff  19:52 
I'm pretty sure that at least for the motions to dismiss for the fox case. I think those were filed before The matto case came out. So Fox did raise an opinion defense, but I can't I don't think that they cited I might be wrong, but I don't think they cited the matto opinion and it would have been out of out of circuit or out of jurisdiction anyway. So I think they've probably relied on other opinion cases.

Jeff Lewis  20:23 
devotes a chapter to the Stolen Valor Act, and its journey up from the ninth circuit to the Supreme Court. It was ultimately it was struck down by the Ninth Circuit and affirmed by the Supreme Court. Did the Supreme Court get it right and holding that the Stolen Valor Act was unconstitutional?

Jeff Kosseff  20:41  
I think they did. So I think I mean, that that was the clearest statement. It was kind of not certain until that point in 2012, when the Supreme Court issued its opinion, whether false speech enjoyed any constitutional protection at all. The government's position was there's no constitutional protection for falsity. And both the ninth ninth circuit and the Supreme Court said no, there's and former judge Kozinski, he, I think probably did the best job in a concurrent with the denial of on bonk proceedings in the case, he wrote this long list of you know, why people lie in everyday life, you know, like, you're, you want to get a job, or you don't want to hurt someone's feelings, or all of those sorts of things to say that the government can criminalize any of that. And I mean, this was a tough case. And I mean, I, I have very little sympathy in this case, it was a guy in Claremont, California, who was on the local water district board who just repeatedly made up that he received the military's highest honor the stolen the Congressional Medal of Honor. And I mean, only 3500 People had ever received it, and most of them had been dead for a long time. So it's kind of a bizarre thing to make up. But there was a law that was passed a few years before called The Stolen Valor Act that said, if you lie about that you can face up to a year in jail and period, it doesn't matter why you're doing it, it doesn't matter, your intent, your state of mind, whether you're gaining anything of value. And what the Supreme, the Supreme Court issued kind of a split opinion. But when you take the majority, or the plurality and the concurrence, you get six justices saying that, you know, you've got to have something more than just this was false. And I think that's the right outcome. Yeah. Well,

Tim Kowal  22:42 
and that's the the big thesis of your book lie in a crowded theater, it's that lies can be protected speech, and just the mere fact that that it's a lie alone is not enough to justify censoring that speech. And and perhaps that should not be controversial, because the whole reason we need legal right to speech in the first place, because there's always someone who's going to say that someone else, someone else is talking right and needs to be shut up. But what has been the reaction to your book, Jeff, is

Jeff Kosseff  23:11  
the premise that lies can be protected, a controversial topic it to modern ears, or it should it be controversial? Yeah, it's been more controversial than I thought it would be a and the reception, I think so. And I'm really not political. And I'm partly because of my job. And I should probably note that I'm only speaking on my own behalf on behalf of the Naval Academy or DOD. But, I mean, I don't really affiliate with any specific partisan outcome. And I think that for this book, there's been a lot of, or when I do interviews with people from the left, I often get, you know, maybe it's time to rethink the First Amendment that, you know, given all of the real problems that we have, our democracy is at stake. And I have had to have these arguments repeatedly, it's gotten fairly tiring, to try to explain to people who should know better that they say, you know, they're really concerned about authoritarianism. They're really concerned about an authoritarian coming to power because of all of this bad stuff on the internet. So their only solution is to weaken the First Amendment. And I tried to explain to them, you know, if you weaken the First Amendment, you're not going back. So what you're doing now is you're there might be an authoritarian in office, and now suddenly, they can restrict speech in all sorts of ways that they weren't able to do before. And they say, well, but the point is, it's very short term thinking. And I think that it's it's disappointing because it's, there's a real panic about free speech and that you know, we have too much of it. And I just think when you Look at when you look at how other countries have dealt with false speech and not just sort of the really far right authoritarian governments but Western democracies in Europe, you see misuse of these powers we have right now. They European, your the European Union recently enacted something called the Digital Services Act, which gives the European government this vast power over online platforms, including complete their misinformation programs. And you have this guy who this guy who runs their commerce department, essentially, he's unelected. And every few days, he tweets out this new threat to a social media platform saying I don't like this stuff that's on your platform, and our enforcement teams are going to come after you and just thinking, you know, why on earth would we want that in the United States? But there apparently are a lot of people who do,

Tim Kowal  25:55 
yeah. Now in a post COVID world, you know, I think there are a lot of other concerns beyond just misinformation and disinformation and statements taken out of context and the whole taxonomy of lies and false speech, that that are also leveraged to stifle speech like, health concerns, for example, in apropos of the COVID-19 there was a there was a statute in California, that I'm not sure if it's still, in effect, it was it was subjected to a an injunction earlier this year, but at least for a time, California statute prohibited doctors from expressing opinions contrary to official official medical policy, as as pronounced by the CDC, and I assume the California Department of Medicine, or public health, as it concerns, vaccines and other topics. So if if doctors were saying like you're taking to Twitter or social media and saying, Well, I, I have some misgivings about such and such vaccine, they could be they could be brought up on charges, I think it was misdemeanor charges, perhaps or maybe it was just subject to, to professional licensure. But the the notion of gainsaying vaccine policy, or or a COVID policy, you know, maybe that sounds in many ears, something akin to shouting fire in a crowded theater. I wonder if you have an opinion on that?

Jeff Kosseff  27:21  
Yeah, I mean, I think that you have to distinguish between when a perfect and professional speech has been regulated, there still are robust protections for it. But I mean, if an attorney goes into court and files a false statement, I think you're in addition to criminal laws, you could face a lot of problems with the bar. I think that my concern with the California law is that it applies outside of the patient treatment context. I mean, I think that I mean, obviously you I mean, if there's a doctor who prescribes bleach to a patient who has COVID, that's, they're not going to I don't think they're going to have a very strong First Amendment Defense, to any disciplinary actions, but it's different when they're going on to a public venue and expressing their their opinion as a doctor. And I think that it gets very dangerous. If you pass laws that say the medical professionals cannot question the establishment. I think that's not an outcome that we want it. I mean, if a doctor is saying crackpot stuff, then Reebok provides speech that counters it. And I think that, that so I think the California law goes a bit too far.

Tim Kowal  28:47 
You have said you said before, Jeff, that, that you're old school when it comes to the First Amendment. And when you talk about the right to free speech and, and the problems of censorship, you're talking about state actors and not not about you know, social media, you know, D throttling a post or taking a post down, that would not be censorship that would not implicate necessarily implicate legal First Amendment, or constitutional rights. In your perspective, do it, like characterize that right?

Jeff Kosseff  29:16 
Yeah. I mean, this is where I lose all the conservatives. So I pretty much alienate all the liberals and the conservatives, because there's this idea that social media platforms need to somehow become like telephone companies and allow everything in that's not illegal. So anything that anything and I mean that and I think I understand where they're coming from, I also think social media would be totally unusable if you had it like that. And I also think that the platform's have a First Amendment right to make these decisions without government interference. The platform's are businesses. And part of this marketplace of ideas is that You know, platforms should be able to make these editorial decisions, whether to allow certain kinds of content whether or not to, and the users will decide if it's a place they want to be. And I think you're starting to see that with EX pharma, Twitter, they've changed some of their policies, and they have every right to do so as long as it's not constitutionally unprotected, illegal content, which that would be a different story. But I mean, they have changed their COVID, misinformation policy, or they've eliminated it, essentially, which they have every right to do. And a user should have every right to say, you know, I like that they did this, or I don't like that they did this. And the government shouldn't get involved and tell the platform that you must take it down, or you can't take it down. I just don't want the government involved in that I want the businesses and their consumers are involved in that. Yeah,

Tim Kowal  30:55  
I think that strikes me as a consistent approach. One thing that's that strikes me as, as odd, anyway, as and maybe I don't understand the social media companies argument right on this, but it sounds like when they say, Well, we have a right not to publish certain information we have, we have our own free speech rights. So it's this context of the users expressing a free speech, right? And in the country saying no, you don't have a free speech, you don't have a right to speak on our platform, we have a right not to speak or not to publish certain speech. So it's still a First Amendment conversation. It's just who holds the right to speak. And whether it's a it's limited to a right to speak, or it also bleeds into a right not to say what you want to put on our platform.

Jeff Kosseff  31:39 
Yeah. And I mean, I think that users have a right to speak on social media without the government telling the social media companies that they can't speak. So I mean, the the the first amendment right comes down to the government. So Congress, legislature executive branch judiciary, that as long as the power of government is not involved in that decision, and we have a case going to the supreme court right now, that's going to draw some clear lines, because we don't really have that we actually have two we have one about these Texas and Florida laws that say that said the that platforms can moderate certain speech. But we also have a case that the Supreme Court is going to hear this term about jawboning this idea of if the government starts pressuring a platform to not carry certain content. At what point does that become a First Amendment violation, and we don't have really great case law on it. What we have from the Supreme Court are some cases involving bookstores, from the 1960s and state commission sending letters to bookstores. And I think that it's a tough question. Because you don't want the government saying to a platform, hey, you're going to face some consequences if you don't take down the speech. But you also want the government to be able to respond to speech. So you I mean, the government should be and must be a participate a participant in this marketplace. So if there are people putting out totally crackpot things that could really cause people to make unwise decisions, the government should be able to speak out and say, Hey, this is wrong. But it crosses a line at a certain point when the government says, Hey, this is wrong, and you must take it down.

Tim Kowal  33:29  
Right. Yeah. So so there is some evidence emerging, or investigations into some connections between the government or the White House and social media about suggesting or recommending that certain content be taken down? If that's true? Does that change the analysis about whether the social media companies if they're if they're getting input, or suggestions or direction, you know, somewhere along that spectrum from the government about what to leave up? And what to take down? Do they become quasi state actors?

Jeff Kosseff  34:01 
I don't I don't think they would become state actors. I think the issue would be as did the government violate the First Amendment rights of the speakers? And I think that in at least in the case, that's going up to the Supreme Court. I think the Fifth Circuit got it partly right. I think that there were some actions where, you know, the White House calling, and, you know, very bluntly demanding certain things. I think that I mean, that's the White House, that's the head of the executive branch of the government. I think that if it's just an alert from an agency, like the Surgeon General, I think that's a closer call, because I still I don't know what power the Surgeon General has over a social media platform. You have to be able to do something. And so I think it's going to be case specific. And I think the Supreme Court is really going to have to be clear about what line they're drawn.

Tim Kowal  34:57 
So if so, if a speaker If a user of a social media platform believes that, that their post has been taken down at the behest of some government actor, should they should they just sue the government directly? And or does the social media company also become a defendant there?

Jeff Kosseff  35:15 
I mean, I think the lawsuit would probably be against the government. And I think they would have to have sufficient evidence that both the government demanded the takedown that the platform took it down because of the government and that the government had some sort of power over the social media platform that it was somehow threatening to exercise. And that's tough. I mean, it might happen. I hope. And I mean, I think that's what we want to prevent from happening

Tim Kowal  35:41 
a moment ago, you had mentioned that, that social media companies probably couldn't be treated as common carriers or couldn't operate as common carriers for purposes of content because their platforms would just become unusable. I wonder what I wonder if you had an opinion about what the measure is Elon Musk has taken since taking over Twitter now rabbet rebranded as x toward that direction of it's not a, you know, didn't take, he didn't take all the guardrails down, but he took down quite a few. And I know a lot of users have been complaining. But I wonder if in your view, as someone who's who supports the First Amendment, is that is that is his heart in the right place? Or is that a completely different analysis? Because it he's not a state actor. So First Amendment principles don't apply there? Well, I

Jeff Kosseff  36:33  
think the First Amendment principle is that he has every right to do this. This I mean, his policy changes. The First Amendment protects his and Twitter's or exes right to make these changes. And I mean, I think that a lot of it comes down to personal preferences that are not legal, but more just, you know, what kind of platform Do you want to use? I think there have been some good and bad things, I used to use it a lot more. I've personally just gotten a lot more bots and things, replying that I don't use it nearly as much as I used to, because it just, it wasn't as usable. For me. I do like some of the things that they've done. They've used these community notes much more, which I think are actually pretty effective, where someone posts something that's pretty sketchy. And they have a way of if enough users vote up an addendum to it to the post. So you can see, okay, well, actually, this is what happened. I think that's a creative way of saying, you know, the person's post isn't going to be taken down, but there's going to be something clarifying it, but those are all sorts of the experiments that he should be doing. And I think that it might not work. The end. I mean, I have no insight into their finances, but this is a business decision that they that they should be experimenting with. Yeah.

Tim Kowal  37:50 
Well, that's partly what I want to ask is, Does he get an attaboy from you for upholding? Maybe I shouldn't say First Amendment principles, but but just free speech values. But I think that the two are different, right, there's a, there's a constitutional right to free speech. But you know, that's, that's just a parchment. You know, that's just ink on parchment. If it doesn't apply to people who have a shared value of speech and debate and discourse, the parchment doesn't really matter. If you take if you export the Bill of Rights to any other country, it's not like it's going to turn it into a free speech Haven, you have to have people who value free speech. And I wonder if you think that our culture of a free speech values is flourishing, or if it's stagnating, what direction? Is it trending? And does a dozen initiative like Elon Musk get an attaboy from you on that score?

Jeff Kosseff  38:41 
You know, I hesitate? Any attaboys I think also the the lawsuit filed against Media Matters for I mean, I think that that's an actual first amendment concern that I have just shoo, shoo a critic. So I mean, I, I don't again, when I talk about being old school first amendment, I look at government saying that people can't speak or government punishing people for speech. So I mean, I I'm kind of neutral as to what he's doing with his platform, because he can, he should be experimenting and doing that. But I mean, I if it doesn't work out, then that's going to be something that's also not a free speech issue. That's just sort of a bad business decision, or it can be a brilliant business decision. I mean, I, it's hard for me to judge. I personally know a lot of people who don't use it as much, but they might not be representative of the broader community. So who knows? But, again, when I'm talking about free speech, I'm talking about what is the government doing to suppress people's speech?

Tim Kowal  39:45  
Got it. Let's talk a little bit. Jeff, do you have a question? Well, I

Jeff Lewis  39:49 
was just gonna say what we're up against the hour here, I was gonna ask, before we conclude, you wrote the 26 words that created the internet, and you've written this book about a liar and a crowd theater and the anonymity. But before that, what's next? Do you have any ideas for your next project? Yeah,

Jeff Kosseff  40:04 
so I'm working on a project is kind of in the early stages, looking globally at freedom of speech. And I'm working on it with with another scholar who studies international freedom of speech, and just stepping back and looking at where we are, and how our history is really being defined right now. And I think that we've seen for the past century, led by the United States, but with other countries following a real expansion of freedom of speech, again, the old school version of the government, not punishing people. And I think we're really starting to see it, we might be on the brink of seeing a contraction. And both in the United States and elsewhere where we're seeing these and I mean, I've been experiencing this with the reaction from people on the left, who you would think would support freedom of speech, but there's a this real short term focus on we've got to get our enemies and the way we do that is we punish them for for their speech. And I think we might be seeing this recession of free speech. And I think that that can be a pretty dangerous place. Yeah. Interesting. Interesting. I

Jeff Lewis  41:16  
can't wait to read it.

Tim Kowal  41:17 
I had one other question for you, Jeff, about another venture into the brave new world of AI. And I wonder if there are going to be emerging free speech issues there one, one way that this is touched, touch the practice of litigators, as I have heard that I can't remember what jurisdiction had had raised this, but but there was a state bar that was thinking about requiring attorneys when they sign off on their briefs that they would be verifying that that they did not use artificial intelligence in the drafting of the brief. And, you know, I haven't to look at exactly how the verification will be crafted. If it's there. Just maybe maybe the requirement is just to make sure that you're not just exporting, you know, copy and pasting chat GPT verbiage into into a brief but I wonder about, you know, this, this apprehension about the use of AI in legal briefs, and if if a state bar were to require or if their jurisdiction were to require that attorneys sign something that says that they did not use artificial intelligence or some other source of information for their brief, does that implicate First Amendment issues?

Jeff Kosseff  42:25  
I mean, I think maybe, to a small extent, just because, but But again, this is professional speech. And this is this is just like, I mean, saying you setting other rules for filings in courts. I think Texas, the one of the federal judges in Texas is requiring if I'm not mistaken, I mean, when it comes, if it were to say, you know, you can't write an article with AI or something like that, that would be different. But when you're talking about a filing in a court, that doesn't bother me nearly as much. And I think we've seen a case, I think it was in New York, where an attorney did use AI to write an entire brief, and it just made up all these cases that didn't even exist. So I mean, I think that there, there's a good reason, at least, to for attorneys to not do that, regardless of what the court rules are. Because, I mean, if you do a I mean, if if you make up a bunch of cases and submit it to a court, you can face some pretty serious professional consequences.

Tim Kowal  43:31  
Yeah. Well, that's certainly true that to the extent the that the AI is hallucinating, I think is the is the personified word that's given that's attributed to AI. They're just making up cases that and we want to prevent that. But that that strikes me is going is being overly inclusive of the harm that you're trying to prevent. Yeah, we want to prevent lawyers from citing cases that don't exist. But if there is a certainly the possibility that AI could contribute to, to good ideas or good connections in cases. And if we're, we're striking out too broadly, in saying that AI is not for use by attorneys, we're not going to admit it in the practice of law, at least in filings and the court doesn't that implicate the right of petition, also, which is also part of the First Amendment to take arguments and ideas from whatever source and use them to petition the government for redress?

Jeff Kosseff  44:26  
Yeah, I mean, I think definitely there could be and I and you don't lose all of your first amendment rights in the professional context. The Supreme Court has made that very clear. So yeah, perhaps I I think that at least given the state of AI right now. I think there probably are justifications for it, but I think that is a good point. And I think especially as it advances I think that we I always hesitate to give opinions on specific technology and law because what it is like one day will be quite different. Within a few years, right,

Tim Kowal  45:02 
and one of the one of the other points you raised in your book, something that, frankly, had not occurred to me that that the right, there's, you know, everyone knows the First Amendment protects the right to speak. But there's also implicitly a right to hear a right to receive the information. And that is also part of the First Amendment. And so being able to so and I think you would discuss this in another conversation about about AI and who, who has the right, you know, what, if there is if there is a false statement made in a chat GPT product? Who is the maker of that statement? You know, you know, and, you know, who has the free speech rights to AI and maybe those rights are better conceptualized from the standpoint of the right to receive that information rather than the right to, to produce the information? Yeah,

Jeff Kosseff  45:53 
absolutely. And I think that this comes up a lot also with sort of foreign misinformation. So the Russian government doesn't have a First Amendment right, to spread lies to the American public, but there is a right to receive information that the American citizens have. So that's what makes it difficult from a First Amendment context when you're dealing with foreign misinformation. Okay, and then,

Tim Kowal  46:23  
and then I lied when I said, one last question, this is my last question, Jeff. So we talked about, you know, the First Amendment obviously, and, and how, when we started, we have section 230. And that's where that that's been given a lot of attention about protecting the rights of social media companies to to publish or not publish, what they choose. But there's also you know, our firewall of the First Amendment itself in the right to speak, even to the extent of of untrue information in some, in some cases, how do you think the courts have done whatever you can give the courts a rating? Because you talked about how you've been surprised at some of the reaction to your book and about the the notion that lies may be protected in some contexts? Do you think that even if if many people, even those who you think should know better about what should and should not be protected? Do you think the courts are doing a good job in holding firm in defense of free speech? And are there areas that should be watched for breaches where the court is, is maybe showing a little little signs of going wobbly? Yeah,

Jeff Kosseff  47:26 
so I'd say probably right now, at least where it may be a B plus A minus? I think the courts Jan, I'm talking about the courts generally, I think the Supreme Court has done a very good job that preserving and even strengthening free speech values over the past quarter century. I think they're the UDC, some shakiness when it comes to particularly political issues in some of the lower courts. So the Fifth Circuit, for example, they upheld Texas's law that restricts the ability of social media platforms to moderate and I think the reasoning I had the opinion was pretty scary, because it was not really sticking with the it acknowledged the First Amendment precedent, but it was just so angry about the social media platforms that I think it did not very carefully apply the Supreme Court's precedent. So that that was a time when I've, when I got a little concerned. You also have some defamation cases where not just the two Supreme Court justices, but you've had some other judges at state and lower federal courts who they'll basically apply Sullivan and say, there wasn't actual malice. So we're going to dismiss the case, but then they will write a long statement about why they don't think Sullivan should exist. And it's I mean, it's basically like a cert petition written in an opinion and that that worries me also. So I think that those those sorts of things, give me some concern. But overall, I think the courts are doing a good job on free speech.

Tim Kowal  49:05 
All right. Well, that's we like to hear that that the courts are doing their job. Well, Jeff Kosseff, thank you so much for joining us and talking with us about your book liar in a crowded theater. We asked our listeners to check that out. We're going to drop a link to it in the show notes. They can look up Jeff Kosseff book liar in a crowded theater. So that's going to wrap up this episode. Again, we want to thank our sponsor casetext for sponsoring the podcast each week when we include links to the cases we discussed, we use casetext's daily updated database of case law statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on casetext basic research at casetext.com/calp. That's casetext.com/calp.

Jeff Lewis  49:45 
And as always, if you have suggestions for future episodes, please email us at info at Cal podcast.com And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

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