First Amendment Principles And The Issue Of “Fake News”

            “Wisconsin has more votes than people who are registered to vote.”[1] “Good news, Wuhan's corona virus can be cured by one bowl of freshly boiled garlic water….”[2] “Protestors paid $3,500 to disrupt Trump rally.”[3] These gripping headlines all have one thing in common aside from their clickbait titles; they are all examples of “fake news” that has gone viral.[4] “Fake news” is the coined term for characterizing the proliferation of false or inaccurate stories spread online.[5] Unfortunately, the phenomenon of fake news is pervasive in the era of social media, the vast web of the internet, and a twenty-four-hour news cycle competing for viewership. False stories and headlines spread like wildfire, resulting in a bifurcated society with two perceptions of reality. This has caused a societal rift, fracturing the country. The question about how such misinformation can be regulated without violating the First Amendment is a complex question; yet there must be changes to current norms to help curb the spread of false information and reduce echo chambers of thought which threatens our democracy.

            Most people today probably assume the issue of fake news and disinformation is a modern-day problem that began with the creation and expansion of the internet. However, First Amendment controversies, including the government's attempt to curb the spread of disinformation, existed long before, even during the inception of the United States. Arguably, the first attempt at curbing ‘fake news' occurred when President John Adams signed the Sedition Act into law on July 14^th, 1798. The Sedition Act outlawed conspiracies “to oppose any measure or measures of the government” as well as criminalized “any false, scandalous and malicious writing” against the U.S. government.[6] The dispute about the government regulation of speech back then nearly mirrors the present-day debate; one side arguing that restrictions on harmful,  damaging, or false speech is tolerable and necessary, and the other vying for a truly open marketplace of ideas and minimal governmental intervention.

            The Federalist Party, the majority party in Congress during the time the Sedition Act was signed into law, believed that maintaining a republican government required squelching speech that falsely and maliciously criticized the government. Many Federalists alleged the Act was in accordance with the First Amendment, as they supposed the First Amendment only applied to the forbidding of prior restraints.[7] Enforcement of the law resulted in twenty-five arrests, fifteen indictments, and ten convictions.[8] Nearly all charges were against Democratic-Republican editors of newspapers who criticized President John Adams and Federalist policies.[9]

            Jeffersonian-Republicans, like Thomas Jefferson, staunchly opposed the Sedition Act and claimed it violated the freedom of speech and freedom of the press guaranteed by the First Amendment. They viewed the Sedition Act as an expansion of power “to an already authoritative government.”[10] Thomas Jefferson and James Madison both stressed the importance of an open, free, and vigorous debate for republican governments as well as the need for critical examination of public officials and governmental policies. The public at large seemed to agree with the Jeffersonian-Republicans as the Sedition Act “set off a firestorm of criticism against the Federalists and contributed to their defeat in the election of 1800.”[11]

            Yet due to its relatively short-lived nature (it only was in effect for three years) the constitutionality of the Sedition Act wasn't addressed by the Supreme Court for another 150 years until the landmark case New York Times Co. v. Sullivan. In that case, the Supreme Court held that public officials could not recover damages for defamatory falsehood relating to their official conduct unless the statement was made with “actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”[12] In its opinion, the Court took the opportunity to address the great controversy of the Sedition Act and found that “because of the restraint it imposed upon criticism of government and public officials, [it] was inconsistent with the First Amendment.”[13] Justice Brennan, who authored the opinion, quoted James Madison in saying “the censorial power is in the people over the Government, and not in the Government over the people.”[14]

            Still, founders like Madison could have never imagined the age of the internet and the plethora of information accessible to nearly every citizen at the click of a button. Their belief in the sanctity and benefit of a marketplace of ideas made sense during an era where information only traveled as fast as a newspaper could print and a horse could ride. However, this vision of a marketplace of ideas has evolved into an enigmatic problem. Today, in such a vast pool of information and connectivity there is bound to be radical ideas and false information.[15] The enormous amount of information isn't necessarily an issue by itself; however, problems arise when ideas based on false premises take hold, and trigger radicalized movements that shake the foundation of truth that binds our society.

            Finding a solution to this problem is no easy task. The First Amendment proclaims that “Congress shall make no law…abridging the freedom of speech, or the press….”[16] The evolution of First Amendment jurisprudence further significantly constrains the way the government can lawfully address this issue. Throughout the years, besides the Sedition Act, the United States Government has attempted other regulations to curb misinformation, fake news, and echo chambers of thought including the implementation of the Fairness Doctrine.

The Rise And Fall Of The Fairness Doctrine

            The Federal Communications Commission (FCC) conceived what would come to be known as the “Fairness Doctrine” between 1929-1950. During this time, the FCC required broadcasters to “devote a reasonable amount of broadcasting time to the discussion of public issues of interest in the community served by their stations [and] such programs must be designed so that the public has a reasonable opportunity to hear opposing positions on the public issues raised.”[17] In 1959, Congress essentially codified the Fairness Doctrine when it amended section 325(a) of the Communications Act and included a provision for newscasts, news interviews, news documentaries, and coverage of news events “…to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”[18]

            The doctrine was largely justified based on the scarcity rationale; that there were limited radio and television airways that the public had access to which vindicated “government-enforced public interest rules on those who received exclusive licenses to the public airwaves.”[19] The constitutionality of the doctrine was challenged in 1969 in Red Lion Broad. Co. v. Federal Communications Comm'n. In that case, Reverend Billy James Hargis broadcasted an attack against author Fred Cook who wrote a critical book about Barry Goldwater.[20] When Mr. Cook requested free time to reply to the attack, the radio station refused unless Mr. Cook could find a paying sponsor.[21] Mr. Cook filed suit alleging that Red Lion's refusal violated the Fairness Doctrine. The FCC, as well as the D.C. Appellate Court, found that Red Lion's refusal to allow Cook to respond was in fact a violation of the Fairness Doctrine.[22] In affirming the lower court's decision, the Supreme Court found that “it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences” and upheld the Fairness Doctrine.[23] Although “fake news” was never mentioned in the opinion, the Court's decision emphasized that broadcasters had a responsibility to present balanced and accurate information to the public at large to contribute to an informed populace.

            Critics continued to attack the doctrine until the FCC repealed the Fairness Doctrine in 1987, largely because the scarcity rational “had vanished due to the significant increase in the number of outlets and in the rise of alternative media.”[24] At any rate, some might argue that the rise of “alternative media” contributed to the vast political polarization we see today, where without the Fairness Doctrine news outlets can essentially “stifle differing viewpoints.”[25]

Could The Fairness Doctrine Be Reinstated To Combat This Polarization And Help Stop The Spread Of Fake News?

            Former Congresswoman Tulsi Gabbard believed Fairness Doctrine principles could help mitigate this issue when she sponsored and proposed the “Restore the Fairness Doctrine Act” in 2019. The new act would have “once again mandated television and radio broadcasters to present both sides when discussing political or social issues.”[26]Supporters of the reinstating of the Fairness Doctrine argued that it would allow for a more “robust public debate” and initiate much needed political discussion rather than “allowing only the loudest voices or deepest pockets to win.”[27]Ralph Nader viewed the Fairness Doctrine as an essential part of history that helped facilitate the spread of information involving important public issues including women's rights, health effects of smoking, and safety of nuclear power plants.[28] Yet as of today Congress has not voted on the bill.

            If signed into law, the re-implementation of the Fairness Doctrine would most likely run into several First Amendment issues. First and foremost, the Supreme Court has held that the government cannot compel speech.[29] At the core of the Fairness Doctrine is the requirement that broadcasters present opposing viewpoints of issues of public importance. Though this essentially forces broadcasters to allow speech on their programs with which they do not agree, which strongly violates First Amendment principles. Chief justice Roberts articulated in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. that “some of [the Supreme Court's] leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”[30]

            Additionally, in 1974 the Supreme Court ruled that the extension of the Fairness Doctrine to industries outside the radio and television broadcast spectrum was unconstitutional.[31] In Miami Herald Publishing Co. v. Tornillo, the Supreme Court held that a Florida statute's ‘right to reply' (derived from Fairness Doctrine principles) as it applied to newspapers violated the First Amendment.[32] It its decision, the Court held that the “choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, the treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.”[33] The court also differentiated newspapers and other mediums of information from ‘public utilities.' Justice White stated in his concurrence that “a newspaper or magazine is not a public utility subject to reasonable governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed.”[34] Essentially, broadcasters are unique in that they are licensees of a “scarce public resource” and can be subjected to reasonable governmental regulation, while newspapers are not.

            Similarly, like newspapers, social media platforms and internet-based news sources don't utilize the broadcast spectrum, nor are they a ‘scarce public resource.' Therefore, it would be difficult to apply ‘Fairness Doctrine' principles to such outlets without violating the First Amendment, like the Court held in Miami Herald. It would also prove to be problematic to apply the same regulations that applied to relatively few radio frequencies and limited broadcasters to the internet at large. With countless websites, blogs, and avenues for individuals to share information, it seems nearly impossible to implement fairness doctrine principles equally to all mediums or outlets of information. For example, YouTube has approximately 300 hours of video uploaded every minute and over 1 billion users.[35] The sheer volume of content posted by 3.21 billion active users on platforms like Facebook, Instagram, WhatsApp, and Messenger each month is a staggering figure.[36] To impose Fairness Doctrine principles, even to a narrow subset of content (such as to material speaking about politics or other interests of public importance like healthcare), is nearly an impossible task for many providers and platforms to adhere to.

            Perhaps the biggest hurdle to overcome today is that the First Amendment “heavily limits regulations on the truth, falsity, or quality of information as content-based restrictions.”[37] Content-based restrictions carry a heavy presumption of unconstitutionality and are subject to strict scrutiny (the highest level of scrutiny) by the courts.[38] As the Supreme Court opined in Ashcroft v. American Civ. Liberties Union, “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[39]Thus, governmental attempts to regulate false information could also infringe on protections guaranteed under the First Amendment.

Can “Fake News” Even Be Regulated By The Government Without Violating The First Amendment?

            False statements do not fall outside the penumbra of protection provided under the First Amendment. In United States v. Alvarez, the Supreme Court held that a federal law that aimed to punish a form of false speech, commonly referred to as the “Stolen Valor Act,” was unconstitutional.[40] The Stolen Valor Act criminalized false claims regarding the receipt of military decorations or medals and violators of the act faced fines and potential imprisonment from six months to one year.[41] The Court held that allowing the government to criminalize false statements like those described in the act would “endorse government authority to compile a list of subjects of about which false statements are punishable” and could possibly “inhibit speaker[s] from making true statements, thereby chilling a kind of speech that lies at the First Amendment's heart.”[42] The Court also found that there is a “common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”[43]

            The Court's rationale appears to be grounded in the belief that the solution to such problem does not involve government censorship, but the open marketplace of ideas. Historically, the Court has found that the solution to combating false speech is encouraging speech that is true. In Whitney v. California, Justice Brandeis proposed the idea of counter-speech in his concurrence, writing “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied to is more speech, not enforced silence.”[44]

            Although overcoming strict scrutiny for content-based restrictions is a difficult task, the government can do so if they show that such regulations are necessary in achieving a compelling government interest. Content-based restrictions have been permitted to combat speech that incites imminent lawless action, defamation, child pornography, and a few other narrow categories.[45] Certainly, protecting the integrity of elections is of the utmost importance in preserving our democracy and qualifies as a compelling government interest.[46]

            The dissemination of fake news is pervasive throughout the internet, social media providers in particular, which has far reaching consequences such as potentially influencing elections. Recent studies suggest that the spread of fake news helped sway public opinion during the 2016 presidential election.[47] Shockingly, more than a quarter of voting-age adults “visited a fake news website supporting either Clinton or Trump in the final weeks of the 2016 campaign.”[48]Additionally, on Facebook fake news stories had cumulatively more shares, likes, and comments than real news stories during the months before the 2016 election.[49]

            The government could try to overcome strict scrutiny by arguing that any regulation seeking to stop the spread of fake news is necessary in order to achieve the compelling governmental interest in having a well-informed populace and preserving our democracy. We live in unprecedented times where information and disinformation travel at the same speed and can reach millions of people nearly instantaneously. Without regulating the spread of false information, foreign governments could initiate cyber campaigns against the United States proliferating disinformation to millions of Americans and sway public opinion artificially. Such campaigns can also be used to intensify political polarization and further contribute to a fracturing American society.[50]

            We must evolve our views of internet freedom if we are to curb fake news and preserve our democracy. Instead of direct government regulation (which has significant First Amendment hurdles to overcome as previously illustrated), perhaps the solution lies in incentivizing social media platforms and providers themselves to play a more active role in solving this issue. One potential avenue to accomplish this is a reimagining of the role that social media providers play in communication in our society and modifying or amending the Communications Decency Act Section 230.[51]

Can The CDA Be Amended To Regulate Fake News?

            In 1996, Congress passed the Communications Decency Act (CDA) Section 230 which in part provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[52] It protects online service providers from liability on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”[53]

            Many scholars credit this legislation with the “continued development of the internet” as well as “preserving the vibrant and competitive free market that presently exists for the internet…unfettered by Federal or State regulation.”[54]This has allowed for and contributed to the expansive growth and success of the digital space. Congress also believed that providing immunity to content providers who monitor the content put on their platform encouraged the industry to self-regulate its transmission of information.[55]

            That said, critics argue that Section 230 has made internet service providers rather laissez faire in monitoring the information distributed on their platforms.[56] Since providers “know they will not be held liable for any content posted by a third party user, they have no incentive to monitor and filter content.”[57] Additionally, inflammatory content, exaggerated headlines, and even false stories, tends to generate more traffic to the site, and consequently more revenue.[58] Thus, internet providers seem to be more willing to hide under the protection of Section 230 without regard while fake news and disinformation runs rampant. In essence, providers seem willing to put profits over the public interest at large.

            The status quo of blanket immunity for internet service providers, along with their indifference to information purveyed on their platforms, is an issue that needs to be addressed. Internet service providers and social media platforms must play a more active role in combating this issue. This can be facilitated both by consumer pressure and encouragement from the government.[59] Consumers can encourage providers to play a more active role in monitoring content by subjecting providers “to a system of labeling, naming, and shaming” to those who allow fictitious or deliberately false stories to spread on their websites.[60]

            Also, private social networking companies working hand in hand with the government to combat problems in the digital space would not be a new endeavor. For example, the social media site MySpace teamed up with several state Attorney Generals to protect children from accessing harmful content on their site.[61] This collaboration developed “software tools to protect children from harmful content, designing social networking sites in a way that prevents minors from accessing inappropriate content” as well as “ensuring that social networking sites cooperate with law enforcement agencies in protecting children online.”[62] Private internet service providers and the government could partner today and develop algorithms designed specifically to identify fake news and properly label it as such.

            Another solution is to carve out narrow exceptions for the safe harboring of fake news propagated by foreign assets, bots, or paid agents in Section 230.[63] For example, “portions of the Federal Election Campaign Act (FECA) would be excepted from the CDA 230 to block foreign interference into political discourse.”[64] By removing platforms immunity for these specific acts, providers would be incentivized to “minimize or eliminate this activity from their systems.”[65]

            Whether it is consumer criticism, partnership with the government, or adding exceptions to Section 230, something must change to encourage internet service providers to combat fake news and disinformation. As Naomi Harlin Goodno, a Professor of Law at Pepperdine University School of Law, eloquently stated:

“The Internet is a powerful and wonderful tool that has ushered in a new information age. If purposely misused, however, the internet can be terrifying, and even deadly.”[66]

            Direct government intervention and regulation into this foray would likely violate First Amendment principles. However, a “well-calibrated modification of CDA 230 may go a long way in helping to give the public and civil society a fighting change by encouraging platforms to stabilize and balance the marketplaces of ideas they own and operate.”[67]