Should the First Amendment protect misinformation? According to US Naval Law Professor Jeff Kosseff, it should.
In a lecture as part of the Bowers Computing and Information Science Distinguished Speaker Series, Kosseff, an associate professor of cybersecurity law in the Naval Academy’s cyber science department, featured his recent book, “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.” In his book, he argues that though the harms of misinformation are substantial, the potential abuse that would come with increased government control over speech poses a greater risk.
“Let’s say that we’re in this room, and I start shouting ‘fire,'” Kossef said. “I know there’s not a fire, I don’t anticipate the fire. Could I go to jail? Could I be fined? Probably what comes to mind for you is yes, you can, because you can’t yell ‘fire’ in a crowded theater.”
As he was conducting research for his book, Kosseff found that the saying “you can’t yell ‘fire’ in a crowded theater” was repeatedly evoked by courts who aimed to punish someone for protected speech. This pattern led Kosseff to examine why it is wrong to dismiss First Amendment protections for speech, even if that speech is false.
Kosseff grounded his legal analysis in the common philosophies regarding free speech.
Kosseff said that the concept of the “marketplace of ideas” — the idea that the best solution to bad speech is more speech — has been the “underpinning of free speech law for more than a century.”
Another political philosophy that has been evoked to protect false speech in the past is philosopher Alexander Meiklejohn’s Ph.D. ’97 theory of self-governance, which asserted that a self-governing democracy requires citizens to freely investigate, criticize and discuss elected officials without fear of being punished if they get facts wrong.
Kosseff explained that this logic supported the Supreme Court’s 1964 decision to rule in favor of the Times in New York Times v. Sullivan, a Supreme Court case in which the newspaper ran an ad which criticized southern officials for their mistreatment of Martin Luther King Jr. with several factual inaccuracies. The case established the requirement for “actual malice” — the high standard of ill intent — for defendants in defamation cases brought by public officials, the professor explained.
“What actual malice says is that if you’re a public official, you can only succeed in a defamation case if you show by clear and convincing evidence that the speaker made the erroneous statement either knowing that it was false or recklessly disregarding the falsity,” Kosseff said.
Another case in which a court ruled to protect false speech was Winter v. G.P Putnam’s Sons, a 1991 Court of Appeals case in which two young adults sued the publisher of a mushroom encyclopedia for publishing incorrect information about the toxicity of a mushroom which resulted in their liver transplants. Despite the fact that the two complainants almost died from the deadly mushroom, the court protected the publisher, arguing that assigning publishers liability for error would chill speech.
“It would be so contrary to First Amendment values to hold a publisher liable that it would chill too much speech because everyone would be too afraid of facing product liability lawsuits,” Kosseff said.
Students who attended the event said that they appreciated Kosseff’s explanation of the need to protect false speech.
“I thought it was interesting to learn about how nuanced deciding what types of false news should lead to legal consequences vs what is protected can be,” wrote Vanessa Shoenholz ’25 in a statement to The Sun. “I thought Kosseff did a great job using examples to highlight how a false statement classifying as clear and present danger is a very blurry line, but while explaining how protecting most free speech is important to the ‘marketplace of ideas.’”
Nathalie Bick, a Ph.D. student in the Information Science department visiting from the University of Hagen in Germany, agreed that Kosseff’s lecture gave listeners “a different perspective on things,” which Bick deemed important in light of Cornell’s freedom of expression theme year.
Kosseff said that although he believes the First Amendment should offer expansive protections for speech, he acknowledges the importance of mitigating the harmful effects of misinformation.
“I also advocate for non-regulatory solutions, because I don’t deny that misinformation is a problem, but there are other ways to address the problem,” Kosseff said. “But I don’t want to make anyone think there’s ever a perfect solution to misinformation.”
Kossef said that one approach to mitigating the harms of misinformation is looking at not only the supply of misinformation, but also the demand for it.
“Why don’t we look at why so many people are eager to believe outlandish tales that they find on social media?” Kosseff said.
Kosseff highlighted Finland’s incorporation of media literacy skills into K-12 education as an example of a non-regulatory measure to address misinformation.
“Starting in Kindergarten, they teach them about fairy tales and how to distinguish fairy tales from reality. As they move off in their grades, they learn about how to do primary source research and how to verify something you see on social media,” Kosseff said.
Another way to partially address misinformation would be to support local media, Kosseff added.
“I will suggest we consider government funding for local media as well as nonprofit funding — anything to create other sources of information that are more rigorously vetted,” Kosseff said.
During the question and answer portion of the event, Kosseff fielded questions about section 230 of the Communications Decency Act to the definition of expressive activity.
Prof. Tracy Mitrano J.D. ’95, public policy, asked a question about the distinction between misinformation and disinformation. Kosseff responded by saying that the deliberate transmission of falsehoods often raises interesting First Amendment questions if foreign governments are involved.
“The challenge is that if you’re going to block this information coming from foreign sources, are you violating the First Amendment rights of the United States citizens to receive that information?” Kosseff said.
In a letter to the editor, Kosseff expressed his disappointment at The Sun’s editorial opposition to the University’s decision to invite Ann Coulter ’84 to speak, instead encouraging students who choose to attend her April 16 speaking event to listen to Coulter instead of shouting her down. On Nov. 10, 2022, when Coulter previously spoke at Cornell’s campus, students shouted during her speech, interrupting her and prompting her early exit from campus.
“It makes me very concerned when I see college students shout down speakers,” Kosseff said in an interview with The Sun. “You may very vehemently disagree about what they’re saying, but you should say that you disagree with them. When you shout them down, that gives them more power, because it means that their ideas are so strong that your only recourse is to not let them speak.”