The 2016 presidential election gave way to the rise of so-called “fake news” from both domestic and foreign sources. This development led to extensive and ongoing congressional investigations of the candidates involved and indictments of many of the people around them. House and Senate intelligence committees took long testimonies from the executives of digital information giants Facebook, Google, and Twitter to learn about their investigations into these 2016 misinformation campaigns. Even within the last couple of months new reports have come out, including a scathing profile by the New York Times showing the broad failures of the private sector to regulate the rapid spread of misinformation.
In response to this rapid dissemination of misinformation, regulators in the U.S. and around the world have hastily drawn up new legislation to identify and combat fake news. These anti-fake news laws have already passed in the last year in many European and Asian countries, such as Germany, France, Thailand, and Malaysia. The farthest the United States has gone in legislating against fake news is by introducing the Honest Ads Act (S.1989) in the US Senate. This bill would require digital platforms that have more than 50 million unique monthly visitors to maintain a record of advertisers who have spent more than $500 on advertisements in the previous year. This record would be required to be made public and include a copy of the advertisement itself. The Honest Ads Act has bipartisan support in Congress and widespread support from industry leaders such as Facebook and Twitter.
Given the support for these smaller initiatives and the broad scale of anti-fake news legislation around the world, should the United States go further in implementing legislation to combat fake news? And can it even do so given the protections of the First Amendment? I think that the U.S. government should not attempt to regulate fake news from a policy perspective and has limited authority to do so under the U.S. Constitution.
The Supreme Court has always taken a strong stance against any kind of regulation that could impact what we categorize as political news. From Thomas Jefferson challenging the constitutionality of the Sedition Acts in 1798 to Citizens United v. Federal Election Commission, the Supreme Court and the political systems of the United States have a long-standing tradition of protecting political news and speech. While many of these past stances on political speech dealt with broadcast and print media, many of the same principles apply to the social media debate.
Though First Amendment caselaw in the context of the Internet is limited to the last two decades, the limited caselaw available reinforces the importance of protecting First Amendment rights on the Internet. In caselaw as early as 1997 in Reno v. ACLU, the Court found that the Internet is “the most participatory form of mass speech yet developed, and is entitled to the highest protection from governmental intrusion.” This sentiment was echoed and applied specifically to restricting access to social media in 2017 through Packingham v. North Carolina. The Court emphasized that “social media users employ [websites] to engage in a wide array of protected First Amendment activity on topics as diverse as human through.” The Court even acknowledged that we should expect for the Internet and social media in particular to be exploited by the criminal mind, but they still found that broadly limiting individuals’ access to these platforms was an unconstitutional violation of the First Amendment.
On the other hand, the caselaw related to the dissemination of false information on social media is almost non-existent. The few cases out there deal with outright and actual threats of violence, which has always been treated differently under the First Amendment than a typical example of false reporting. Additionally, the Supreme Court essentially made lying a constitutional right in United States v. Alvarez when it invalidated the Stolen Valor Act as a violation of the First Amendment. Based on this precedent, many law and media experts see strict government regulation of fake news as a nearly impossible task.
So, in absence of government regulation of fake posts, what is the alternative to dealing with the problem? Self-regulation by social media companies can be a powerful tool in stopping the rapid spread of fake news. BBC recommends using a combination of specialized algorithms and human review of suspect stories and websites to help stop fake news from spreading. Another effective tactic in combating fake news is to educate the American public on how to identify it. Several colleges have published guides on how to identify fake news, and several states have passed bills introducing media literacy skills classes in public high schools. This is arguably the most important step in combating misinformation campaigns. If the citizens don’t believe the fake posts, then they lose their power to impact the public opinion. Self-regulation of the social media outlets themselves and a more informed populace can create powerful resistance to fake news without direct government intervention.
The proliferation of fake news is certainly an increasingly important problem, the effects of which have been amplified by the rise of social media. Misinformation can lead to false accusations of individuals, as well as larger consequences like stock market panics and shifts in election outcomes. However, trying to solve this problem with government intervention can lead to major legal and social consequences. I, along with media experts, argue for a private sector approach that utilizes a combination of monitoring systems from the social large social media outlets and from the American public at large. In an ever-shifting media landscape, it is the responsibility of every individual to recognize accuracy and verify the information that they are consuming.*
*Sara Prendergast is an associate editor on the Michigan Technology Law Review. She can be reached at firstname.lastname@example.org.