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Can Fake News Be Regulated? [POLICYbrief]


In 1898, that’s a long time ago, Spanish-American
War was started by newspapers crying, “Remember the Maine!” The Maine was an American ship that exploded
in Havana Harbor and the newspapers quickly, particularly the New York World, started pushing
article saying, “We need to have a war with Spain over this. Remember the Maine, they blew it up.” That was utterly fake news. It wasn’t true and it led to a war. So, fake news is not a new thing. The First Amendment does not allow the government
to regulate what companies or people, social media sites, or newspapers, or television
stations, doesn’t give them the authority to tell them what to say. The Communications Decency Act, which was passed
in 1996, pretty much insulates these companies from civil lawsuits for either their attempt
to moderate or their decision not to moderate. Under Section 230 of the Communications Decency
Act, there’s absolutely no obligation to moderate so-called fake news. The exceptions to the Communications Decency
Act basically refer to things that would be violations of federal criminal law or things
that would be involved in some way with sex trafficking. There is no legal obligation for social media
platforms to moderate anything other than things which would be criminal. The kind of things that have been discussed
in the hearings about Facebook, and then the hearings where Facebook’s CEO Mark Zuckerberg
was testifying and dealing with things like so-called fake news. As for that, there is no law that requires
them to do that, number one. And number two, despite the pressure
from the senators, under the First Amendment, no such law could possibly be
constitutional. This is none of those things. As the law stands they’re completely, uh,
immune from liability for, uh, either trying to edit out or not trying to edit out things
which might be deemed as fake news. More fundamentally, the First Amendment provides
very strong protection against any kind of legislative intent to require social media
sites to edit, uh, and censor so-called fake news. For one thing, the news that they’re talking
about is basically what’s known as political speech, and the Supreme Court has said for
years that the most important type of speech that the First Amendment protects is political
speech. And the reason for that is very fundamental. And it’s, it goes all the way back to 1798
when Congress passed a law called the Sedition Act that made it a crime to criticize the
president or the government of the United States. And Madison wrote a very fundamental paper
where he basically said you cannot have popular government elections if you can’t have a discussion
of issues, and parties, and personalities that run in those elections. Like any other kind of media, the government
cannot dictate, uh, what it calls news, and particularly on matters of public interest
that would be politics whether they think it’s fake or not fake. The First Amendment is broad, broad protection,
maybe broader in this country than anywhere else in the world, but there really are no
extra protections that the press has over other forms of expression. Intuitively, people might think that the press
has a higher standard of truthfulness, but in reality, they don’t. Pretty much just as the press doesn’t get
any extra leeway that the rest of us don’t have, it also doesn’t have any extra obligations
that we don’t have. If I defamed you and it’s not true, I could
be liable just as the press could be, no more, no less.

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