The Constitution “demands that content-based restrictions on speech be presumed invalid … and that the Government bear the burden of showing their constitutionality.” That is to say, anything recognizable as a conception of freedom of expression must require that government, at least in its capacity as regulator, maintain a position of neutrality regarding messages. However, there are content-based restrictions on speech that have been allowed but only in a few instances such as incitement, obscenity, defamation, speech important to establish criminal conduct, fighting words, child pornography, fraud, true threats, and speech creating a serious and imminent threat the government has the power to prevent. As hate speech and rumors proliferate social media, many countries have attempted to implement “fake news” laws. Malaysia, Sri Lanka, and Myanmar have all seen an increase in “fake news” and have attempted to criminalize anyone who delivers “fake news” including Brazil, Germany, France, and Kenya. Moreover, according to the decision in U.S. v. Alvarez, the United States has attempted and failed to criminalize “fake news.”Order now
Malaysia passed a law that would punish citizens on social media or those who are working at a digital publication for spreading fake news with a $123,000 dollar fine along with a possible prison sentence of up to six years. In France, the parliament has passed a law that targets fake news. The new law will impose a quick-response judicial review of potentially “manipulative” information shared during electoral periods. The new law will allow election candidates to sue for the removal of contested news reports during election periods, as well as forcing platforms such as Facebook and Twitter to disclose the source of funding for sponsored content. Germany introduced a plan that fined social media platforms if they did not remove posts that included hate speech. However, in the Philippines, the regulators stated that banning fake news in their country would be outright unconstitutional. The movement to ban fakes news is trending and nations like the United States are trying to come up with a solution that does not abridge the First Amendment. One way to curb fake news without abridging the First Amendment is allowing or encouraging companies or the market to handle it. For instance, YouTube is making a $25 million dollar investment to “improve its news features, joining Facebook, Apple, and parent company Google in campaigns to curb fake news…” Additionally, companies like RedPen are reducing the problem by using a combination of innovative technologies, including AI, natural language processing and sentiment analysis, to for multiple angles of a trending story in a single user interface. This information is great for companies; but what can the government do? Unlike private companies, the government is in a tough predicament due to the constraints of the First Amendment. The Government cannot censor speech while private companies can. To fully understand the concept of fake news, we have to look further into the past pre-trump era.
Fake news is not a new concept and has been around for quite some time. Even in 1938, a radio broadcast adaptation of H. G.Well’s drama The War of the Worlds frightened an estimated one million residents. The residents believed what they heard on the radio station was, in fact, happening since the radio was the main source of media in the 1930s. Currently, now that online platforms, particularly social media, are becoming the main sources of news for a growing number of individuals, misinformation seems to have found a new channel. Fake news is the intentional and verifiably false information that could mislead readers. Social media has changed news distribution and has challenged traditional beliefs of how news should look. Quick snippets of information from innumerable sources delivered every second of the day would cause a lot of confusion.
The news is supposed to be based on truth, but who decides what the truth is? Statements are true if they correspond to the facts in the world. Truth is not absolute but maybe its relative to the culture, nation, ethnic backgrounds, and schools of thought. For example, science is a way to make the truth more absolute. There are methodologies, case studies, and empirical research that make of the paradigm of science. However, even with the scientific methods, we still find disagreement. The truth tends to be relative to a particular frame or reference.
In order to determine what news is considered fake, we must look at what is the nature of “real news.” Traditionally, the news was expressed by journalists who adheres to a code of professionalism. A journalist must be objective and accurate. Above all, provide citizens with accurate and truthful information so they can be free and self-governing. With that responsibility, there comes liability. A journalist must stray away from providing misinformation and never provide disinformation. While misinformation refers to “the inadvertent sharing of false misinformation,” disinformation refers to “the deliberate creation and sharing of information known to be false.” Traditional news forums have printed misinformation plenty of times. Trump credits himself as being the creator of the term but the term has been around for a while. It was used heavily in campaigns during the 90s. e Supreme Court has made references to how ambiguous and vague the phrase is. For instance, in Cohen v. California, the statement “fuck-the-draft” tapped directly into the vagueness issues and definitional difficulties afflicting the statutory phrase “offensive conduct” and whether, in turn, “fuck” fell within that definition. At the most fundamental level, fake news is a speech based phenomenon. It typically features words and may involve images. The First Amendment, thus, is relevant to the extent that restricting fake news necessitates government action targeting its producers and disseminators. The possibility of such government regulation is much more than just a hypothetical. California attempted to pass a bill that made it illegal to knowingly and willingly make, publish, or circulate on an Internet Website, or cause to be made, published, or circulated in any writing posted on a website, a false or deceptive statement designed to influence the vote on either a voter or candidate for office. Eventually, the bill was struck down. The major barrier, of course, is that political speech lies within the heart of the First Amendment. The Supreme Court and lawmakers must first understand what “fake news” actually means before any useful law can be passed. First, statements of opinion are not considered fake news. One possibility is that fake news consists of content that conveys the impression of being a real news article in print or, more appropriately, on the Internet.
For the purposes of this paper, the term fake news will be an intentional sharing of false information that gives the impression of being a real news article in print or on the Internet. This paper will determine whether fake news should be protected by the First Amendment, explore recent court decisions including Alvarez, apply Free Speech Theory and determine which theory or theories are best equipped to address the implications of the fake news, particularly, the news that was spread before the 2016 Presidential election.
United States v. Alvarez
In Alvarez, Justice Kennedy stated Content-based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances. While low categories of speech, such as defamation and true threats, present a serious and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. This principle regarding causation of harm, drawn from Justice Anthony Kennedy’s plurality opinion in United States v.Alvarez, becomes most relevant if the government attempts to regulate fake news. The Alvarez rule that proof of causation of harm must be demonstrated to uphold a content-based restriction on speech under strict scrutiny springs from the Court’s 2011 decision in the violent video game case of Brown v. Entertainment Merchants Association. The majority concluded that punishment for false statements are improper and unconstitutional. Hence, Justice Breyer agreed with the overall decision but not in the analysis. Justice Breyer stated that instead of applying strict scrutiny, intermediate scrutiny is warranted. Even with applying intermediate scrutiny, punishment for false statements, the Stolen Valor Act, in this instance would be unconstitutional because it violates intermediate scrutiny and it applies to situations that are unlikely to cause harm. However, the dissent essentially stated that the Stolen Valor Act could not have been drafted any narrower, while still preventing the substantial harm caused by false statements concerning military decoration.
The best argument made in the opinion is the concurrence by Justice Breyer and Kagan. Intermediate scrutiny or the proportionality analysis should be used because the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. This approach is necessary if the First Amendment is to offer proper protection in the many instances in which a “statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as “strict scrutiny” implies) nor near-automatic approval (as is implicit in “rational basis” review).” However, the dissent points out that “there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech.” In fact, the court has not extended First Amendment protection on several occasions. The dissent points out several examples such as defamation of a public official. The dissent further leans on New York v. Sullivan stating “ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.” The dissent believes the plurality fears that we will see laws making it a crime to lie about civilian awards such as college degrees or certificates of achievement in the arts and sports. The dissent believes that the Stolen Valor Act is a narrowly tailored law to address an important issue. Congress was entitled to conclude that falsely claiming to have won the Medal of Honor is qualitatively different from even the most prestigious civilian awards and that the misappropriation of that honor warrants criminal sanction. Although the dissent makes a good argument, the plurality made the best argument that I align myself with. False statements should not be regulated by the government unless it essential the elements of a crime such as Fraud.
The plurality and concurrence fear that the government will misuse and overreach if the government is allowed to regulate. Because the statute, as drafted, applies even in a family, social, or other private contexts where lies are unlikely to cause harm, it creates too significant a burden on protected speech. The government could achieve its goals in a less burdensome way. The best solution to restrictions of speech, in this case, is intermediate scrutiny.
Speech regulation is adopting policies and taking actions designed to reduce the prevalence of one or more classes of speech; therefore, it is an effort to reduce the amount of particular speech. Even mature democracies struggle with the issue of fake news. On January 1, 2018, Germany announced that it would begin to enforce a law, known as NetzDG, requiring social media sites to remove hate speech and fake news within 24 hours or face fines of up to 50 million Euros. The European Commission’s High Level Group on fake news and online disinformation take a 5 pillar approach to the fake news concept. In March 2018, the High Level Group issued a report concluding that although disinformation may not necessarily be illegal, it nevertheless is harmful to democratic values. This approach reminds me of the Harm Principle and although apparently avoiding “any form of censorship, either public or private,” it advocates greater self-regulation in the short term, with a long-range goal of developing a Code of Practices to encourage transparency, media literacy, diversity, the development of tools to “tackle” disinformation, and further research to monitor and assess the sources and impact of fake news. On the other hand, also in March, the Dutch Parliament voted to retract EUvsDisinfo.eu, a European Union website created by the East Stratcom Task Force in 2015 to report disinformation and fake news allegedly spread by Russian actors. Its Dutch opponents characterize it as a state publication that “passes judgments whether a publication in the free media contains the correct views or not. If your publication ends up in its database, you’re officially labeled by the EU as a publisher or disinformation and fake news.”
These examples illustrate how problematic it can be when governmental entities become arbiters of what is true and what is fake. As the Dutch critics argued, governments should be loath to interfere in freedom of the press because “it makes it impossible for the truth to emerge in the public debate.” The marketplace of ideas must have been an underlying reason in the Dutch critic’s argument. It was definitely at the core of the pivotal 1964 U.S. Supreme Court decision, New York Times v. Sullivan.
The Sullivan case arose during the civil rights movement, involving a Montgomery, Alabama, public safety commissioner named L.B. Sullivan, who sued the New York Times after it published a fundraising advertorial that described law enforcement actions designed to discourage protests by activists such as Martin Luther King Jr. and his followers. Sullivan claimed that the ad, which made several factually inaccurate allegations about the Montgomery police, had defamed him personally, even though he was not identified by name or title.
In other words, Sullivan claimed the publication was fake news. He sought and won $500,000 in damages, without being required under Alabama law to prove that his reputation was actually harmed. But in a decision by Justice William Brennan, the high court reversed, concluding that under the First and Fourteenth Amendments, public officials like Sullivan could prevail in a libel suit only if they were also able to show not only falsity but actual malice on the part of the publisher. In other words, a publisher had knowledge that the statement was false, or proof that the publisher acted with reckless disregard for the truth. A showing of hatred or ill will, known as common law malice, is not sufficient to meet that test.
According to Justice Brennan, because some factual errors are inevitable even in the most careful news reporting, this protection is essential to avoid media self-censorship, to promote vigorous reporting on government and public officials, and to preserve our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”
In subsequent years, the First Amendment protection expanded to include lawsuits by public figures as well as government officials. Alleging falsity was not enough. No doubt this situation is what prompted Donald Trump, first as a candidate and then as president, to float the idea that the law should be changed. Regulation should increase due to the swelling fabrication of news that is highly contentious. When there is social tension, especially if there are serious political, religious, racial or cultural differences, then people will be more vulnerable to fabricated news. The items can also be shared on social media and thus further gain legitimacy since the individual is receiving them from people they trust. This is a problem because most young and middle age, and a growing number of past generations rely heavily on social media for their news source.
Freedom of Expression and Free Speech Theory
A marketplace of ideas approach provides the community with the opportunity to hear all ideas whether good or bad. The marketplace of ideas is imperfect but essential to facilitate the search for truth. This approach, because of the immense volume of ideas, allows for good ideas to emerge. The theory is that truth beats error in the competition of ideas. This concept and process is beneficial in discovering the best truth because the individual is exposed to a variety of paradigms and ideologies which help build a better, more tolerant, community. This approach does not silence the expression of opinion or ideas whether good or bad. Furthermore, under the Justice Holmes approach to the marketplace of ideas, the approach does not consider whether government interference is desired in order to prevent harm. It does state, however, that government interference should be minimal so that the truth would not be tainted in the marketplace. Notwithstanding where the government can actively engage in speech to further governmental ideas, you can infer that this approach is at the foundation of the Alvarez opinion. Under this approach, false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, an expression the First Amendment seeks to guarantee. The marketplace of ideas is a great theory, however, this theory is based on an important assumption.
If there is fake news, there must be truth out there somewhere. If we accept that there is fake news then the assumption is that everyone is in search for the truth or best truth. This theme has been endorsed by famous writers of many eras. John Milton stated “Let Truth and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.” And Justice Oliver Wendell Holmes, in his famous dissenting opinion stated “hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Since 2016, it seems clear that marketplace competition forces, standing alone, will not drive fake news from the field of expression. For some people, the truth may be outweighed or overpowered when grappling, more like passively accepting, fake news.
The marketplace of ideas approach focuses on speech maximization which increases the amount of speech in particular classes through forums, media, speech tokens and types. This specific method is offered to combat fake news or false information. However, in a marketplace full of bad ideas, flooding the market with good ones does not seem to solve the problem. The marketplace could be chaotically flooded with ideas making it hard to discern and extract the good ideas from the bad. This will further exacerbate the problem and lead to misinformation being distributed making it difficult for individuals to extract the best truth. Additionally, the marketplace of ideas will become the marketplace of opinions or fake news. For instance, social media outlets such as Facebook makes it extremely difficult for citizens to discern the truth. I know the marketplace of ideas is not the marketplace of facts, but I believe the pioneers of the theory thought it should be a place of competing ideological convictions and fidelity to the true idea. Currently, there is a shift towards a preference for online news resources. In a study conducted by Alison Head found that the high school and college population is no longer on Facebook. The study indicated that high school and college students get their news from real-life discussions with peers (93%) and not just from social media (89%). Professors were considered a significant news source as well (70%), but librarians were not as effective as a source of news (7%). The most common source of news is memes, instagram, and snapchat. Head states that the tech giant Facebook is dying. Seeing this change, you would think that citizens would be more aware of fake news. People who understand fake news as a reality should rightfully be more skeptical about the veracity of what they read rather than accepting it blindly or at face value. If a consumer knows that fake news exists, it should encourage the consumer to be a more attentive, active, and always challenging the status quo. Some would even look at fake news circulating the market as a benefit because unfortunately, fake news will always circulate the marketplace, we just have to educate ourselves with discernment.
Today, no matter whether the information is true, marketing is most important. Even when the idea itself is fake, as long as the party distributing the false information claims that the opposing idea is “fake news” they have an upper hand due to market trends. For example, a republican claiming that a democrat is conveying fake news. Maybe we should focus on real news and, specifically, ways to make it more appealing to the massive number of Americans who bypass reading traditional daily newspapers and watching local television newscasts produced by reputable organizations. Therefore, the marketplace of ideas approach alone may not be the best solution to solving fake news. There is no doubt that tackling fake news is a muti-faceted approach. We need news literacy. We need to educate ourselves on how to vet disreputable reputable sources, and how to properly research. However, here, we will focus on the theory or theories that will help weed out fake news without abridging the First Amendment.
The regulation of fake news might even be contradictory to the marketplace principle. However, the Harm principle might play a major role in regulating fake news. Under the Harm principle fake news would be okay so long as it does not cause anyone harm. Moreover, the only purpose that power can be exercised over any member of the civilized community, against his will, is to prevent harm to others. This principle is grounded in Utilitarianism. Under the Harm Principle, individuals are free to drink, smoke, or use drugs even though this harm is self-inflicted. However, the moment that self-infliction begins to hurt others, such as drinking and driving, it must be stopped. More specifically, the only time government can interfere or suppress an individual’s complete liberty is to prevent harm to others.
For example, the pizzagate scandal. a man carrying an assault rifle walked into a pizza restaurant in Washington, DC. He was intent on investigating on his own whether the restaurant, Comet Ping Pong, was the headquarters of an underground child sex ring allegedly run by the presidential candidate Hillary Clinton and her former campaign manager, John Podesta. The man was motivated by stories disseminated through right wing social media outlets. He entered the restaurant and fired several shots in the ceiling. This would be fake news that has caused harm. Fortunately, no one was injured by the gunshot but there was a definite probability of it happening.
John Stuart Mill’s harm principle suggests that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” As so eloquently summarized by Professor Frederick Schauer, this means “that society may proceed only against genuine harms and not against other forms of individual or social discomfort.” What then, in reference to Millian theology, is the “harm to others” caused by fake news?
Identifying the harm or harms that we fear fake news produces is a condition precedent or any effective corrective action, be it through legal or private channels. One important step that lawmakers seeking to regulate any speech-based phenomenon must take is to “identify, with precision and specificity, the actual problem that the speech caught in the legislative crosshairs allegedly causes.” In other words, when it comes to fake news, one must “pinpoint the precise harm, not just some generalized, indistinct worry.” Mill’s underlying argument that freedom of speech allows poor ideas to be discussed, criticized, and defeated. But if that were true, why are having such a difficult time discerning the truth from fake news? In short, news is no longer found on traditional forums and access to resources has increased dramatically.
The Marketplace of ideas approach is not so much concerned with harm, as it understands that not everyone will be in the majority. Which is why merging this idea with the Harm Principle seems proper. The marketplace of ideas is concerned with the truth. Truth causing harm is okay as long as the truth benefits the majority. Likewise, under the Harm Principle, if understood liberally, – i.e., taking into consideration that the principle of utility is its foundation, – harm is okay so long as it brings the greatest amount of happiness to the greatest number of people. It is the combination of the Marketplace approach and Mill’s Harm principle that regulation is likely to succeed. Combining these concepts almost looks a bit like an intermediate scrutiny approach the concurrence discussed in Alvarez. However, there is another method that may help in regulating fake news and it concerns private entities such Facebook.
Most people today are acquiring their news from a source not deemed a forum or media corporation or outlet. Because of this, fake news has increased exponentially. Companies like FB are in a peculiar situation. Although they are indeed private companies; they are so massive that most people use its platform to engage in speech-related activities. One idea offered by Joshua Benton is that Facebook could hire editors to manage what shows up in its trending section, one of the major ways misinformation gets spread and a team of journalists and “charge them with separating at least the worst of the fake news from the stream.” A lot of this can be easily done with Facebook’s algorithm. Matter of fact, the outrageously fake news could be weighted a certain way in the algorithm. Facebook does have regulations and safeguards in place in reference to the freedom of expression. Facebook policies, although not all of them are known, have limitations on an individual’s freedom of expression. This all typically depends on the social movement and newsworthy content at the time. Facebook also states that it will remove content that attacks gender, age, sex, and race. Facebook has also decided to take down false information or fake news that is intended to immediately incite violence and physical harm. This is all dependent upon a user reporting the issue and the context of the issue. However, there are some issues with this. There is a possibility that by allowing social media companies to help regulate the market, you could be infringing upon the companies rights. Moreover, it may be difficult to prevent these companies from violating the First Amendment rights of individuals who wish to speak on the Internet. A possible solution would be to categorize companies like Facebook as a designated forum then the government will have more room for regulation.
Although the public forum doctrine playing role, it does not solve the fake news issue. The best approach would be a combination of the marketplace of ideas approach, Harm Principle and Intermediate Scrutiny must be at the heart of restricting fake news. What does this mean? The approach I offer is one of a balancing test. Balancing the marketplace of ideas and the harm. Moreover, if the government is to intrude in this area in any way there must be some form of intermediate scrutiny. If Congress decides to put a statute in place, it must be narrowly tailored to achieve a legitimate governmental interest. If there is a less restrictive way than the statute proposes, then the statute is unconstitutional.
I do not believe in punishing companies in order to achieve this goal unlike Germany. I believe hate speech is a necessary evil as long as it avoids becoming a true threat. However, we must encourage thoughtful forms of expression. One way to do so, similar to utility companies and their Energy Efficient programs in various states, is to offer an incentive. One incentive may be a capped tax break for the percentage of investment. However, unlike the Energy Efficiency programs there will not be any lost net revenues recovered because the amount of information trafficked through social media sites are innumerable. The government should first offer the incentive and if no one participates in the program the next step would be to construct a statute. On the other hand, I believe companies will be eager to participate because there are major companies like Facebook, who are already endeavoring that task.
Conversely, with a program that offers incentives we must understand that there is a tendency to take advantage of the program. For example, the Electrics used their energy efficiency programs in the past to grow load – specifically pushing heat pumps over gas heat. That is why the Oklahoma Administrative code and Oklahoma Corporation Commission (“Commission”) rules currently do not allow for the electric utility companies to push electric over gas now which is fuel switching. This is now barred by the Commission rules. While this doesn’t affect natural gas, the goal is the same to add load or sales and not to reduce loads. This was more of a marketing program much like if the electric utility companies were to push a security lighting program. While they might get customer to install a more efficient lamp, their goal would still be to increase market share.
Furthermore, by allowing companies to recover Lost Net Revenues it exacerbated the program. Lost Net Revenue is the revenue the company would have acquired before the program. For instance, if someone wanted to pay Facebook $500 dollars to run a fake news ad, and because of the “Fake news” program, Facebook has to deny the ad. Facebook would want the government or someone to compensate them for that loss. That is Lost Net Revenues. So to help ensure that this does not happen, we would put a cap on the tax incentive and do not allow Lost Net Revenues.
The target for this program would be ads, not necessarily personal posts of opinion. Now that we know the target, we must classify what fake news actually means. Previously I stated that fake news is an intentional sharing of false information that gives the impression of being a real news article in print or on the Internet. I still stand by the definition. The purpose is not to suppress individual opinions but the posts that give you the impression of being a real news article in print or on the Internet.
So what companies will be a prime candidate for this opportunity? Well, companies should be classified or have licenses like in utility and energy law. Utilities in Oklahoma are classified by their revenue. For example, electric utilities in Oklahoma are classed by annual gross operating revenue. If a company grosses $2.5 billion or more, they are in Class A. If a company grosses more than $1 billion dollars but at or less than $2.5 billion, they are Class B. Now, whether that should be by revenue, users, or customers I’m not entirely sure.
Another step through the program would be a structure of evaluation such as the 3 part intermediate scrutiny test which would not be burdensome because there is an algorithm to help assess a weight to fake news. If the algorithm detect outrageous fake news it will be pushed out or circulated the least. This method would not be fool proof but would definitely help with a majority of the issues. Especially since during the Hilary and Trump campaign outrageous fake news was circulated more than previous campaigns.
A drawback would be that the government would probably need to hire more employees or Congress would have to delegate which agency would handle this program. Governmental resources are already strained and to review Class A companies like Facebook for compliance would be a daunting task. However, the agency would not exactly auditing the company. It would only be a review of a particular part of the company business to determine whether it receives the incentive. The government would determine if the company is entitled to receive the incentive if the company’s practice and decision is fair, just, reasonable, and in the public interest.
If possible, we should avoid using the courts as primary litigator of fake news claims. It should go before the agency that has the designated power and a hearing would be held. There are numerous problems with using the courts as the primary settler in this area. The process is time-consuming, and ‘ordinary people’ who find themselves in the center of fake news often don’t have the funds to pursue lawsuits that could last years. It’s a slow and tedious process. By the time a case makes it to a trial, people may not remember the fake news.
In 2019, it is time to make news literacy a part of the standard curriculum in schools. When I was younger, a teacher in my elementary school, who was a retired newspaper journalist, had the students read newspapers and critiqued it based on the information we were taught and given at the time. He asked questions such as how does that column make you feel and what did the columnist want you to take away and as well as what did the article imply or what can you infer. We also learned to find reliable source. Education is always the start. However, I know that this effort would probably be best executed by the states. The federal government can fund the program by providing new technology for the students to use. There are already programs, such as Universal Service Administrative Company (“USAC” at the federal level) and Oklahoma Universal Service Fund “OUSF” at the state level) that are already subsidizing internet and WAN lines for schools across the nation. This would be the corridor for students to learn about “click-baiting” and other techniques used to cause confusion. We want freedom of expression as well as citizens who can rationally, logically, and critically assess sources and verify information. We want our younger generations to become more equipped with the tools to decipher fake news and to provide intelligent, competing ideological convictions into the marketplace of ideas.
Fake news should have limited protected by the First Amendment. The three best theories to tackle the problem are intermediate scrutiny, marketplace of ideas approach, and the Harm Principle. Furthermore, government should establish an incentive program using a balancing test that addresses the implications of fake news, the probabilities of the harm it may cause and the fair, just, reasonable and in the public interests standard. If possible, fake news should not be battled in court but instead tackled by industry and government leaders to come up with an equitable solution. Moreover, we must create an environment that fosters news literacy and encourage journalists to make real news stories capture greater attention and, in turn, how to gain greater trust from readers and viewers in those stories. Fake news and false information has always existed. We must realize that it is not going anywhere. And as Bonnie Brennan states, false information has always existed and fake news has been a part of online news since it began.” There may be other ways to fight the battle against fake news. However, we must recognize the boundaries on what we can “accomplish, be it through education, counter speech, or, least desirable, laws criminalizing its creation and dissemination.”
- Blasi, V., 2004, The Supreme Court Review. (n.d.). Davison v. Loudoun County Board of Supervisors, 227 F.Supp.3d 605.
- Lloyd v. Doherty, No. 18-3552. August 27, 2018. (On Appeal from the United States District Court Northern District of Ohio, Eastern Division at Akron, Case No. 5:17-cv-2694)..
- Nunziato, Dawn, 2005 The Death of the Public Forum in Cyberspace, George Washington School of Law. (n.d.).
- O’Neill, K., 2007, Privatizing Public Forums to Eliminate Dissent . (n.d.).
- Packingham v. North Carolina, 582 U. S ____(2017)..