What is Fake News and Why Should I Give a Shit?
I. Introduction
In today’s digital landscape “fake news” can go viral in minutes.[1] While fake news is not a new phenomenon, what is new about it is the ease and speed at which it can be disseminated and spread to large audiences.[2] Anyone with Internet connection can record or livestream events in real-time or post “news” that has the look and feel of actual news.[3] As digital media becomes increasingly utilized, the barriers to widespread publication and speech can be easily exploited as a “weaponized tool” to suppress basic dialogue and generate civil unrest.[4] Despite the presence of misinformation in the public discourse, the phenomenon of fake news has become exceptionally problematic in recent years.[5] Pursuant to First Amendment principles, which seeks and maintains a system of free expression, the federal government has a compelling interest in addressing the concerns of such rapid dissemination of misinformation.[6] As researchers Alice Marwick and Rebecca Lewis describe, the spread of fake news leads to a lack of trust in media, an impact of which “weakens the political knowledge of citizens, inhibits its watchdog function, and may impede the full exercise of democracy.”[7] This phenomenon is further magnified by social and political divides which undermine the traditional ways in which truth customarily prevails.[8] Thus, when private interests impact citizens’ ability to make well-informed decisions, the government has a duty to intervene.[9]
The question thus arises: to what extent, if any, can fake news be regulated without violating the First Amendment? What changes could be made to current norms? This paper seeks to answer that question. Part I of this Article seeks to define fake news, despite there not being an exact definition, further adding to the difficulty of its regulation. Part II of the Article turns to an examination of the dangers of fake news and its societal impacts. Part III provides an analysis of how fake news can be regulated without violating the First Amendment, taking a closer look at § 230 of the Communications Decency Act and internet service provider (ISP) self-regulation. Part IV will then provide recommendations for rectifying the issues related to § 230, suggesting ISPs should have some liability.
II. What is Fake News?
The Collins English Dictionary named “Fake News” the “Word of the Year for 2017” due to the 365 percent increase in terminology usage from the year prior. [10] Fake news, in the traditional sense is, “a media product fabricated and disguised to look like credible news that is posted online and circulated via social media.”[11] The New York Times defined fake news as “a made-up story with an intention to deceive, often geared toward getting clicks.”[12] The former President of the United States, Donald Trump, has often used the term to refer to the media and news stories that reflect poorly on his administration and himself.[13] According to Danielle Kurtzleben, NPR political reporter, although the contemporary political figures have chosen the term fake news to devalue unflattering news, fake news has traditionally referred to “lies posing as news.”[14] However, as these different definitions show, there is not an exact definition of “fake news” further magnifying the difficulty of its regulation.[15] Nonetheless, as journalist Larry Atkins explains, extreme criticism or even biased doesn’t make a news story fake if the article doesn’t falsify or misrepresent the real facts.[16] For the purposes of this article, we will be defining fake news as: “an article that is intentionally and verifiably false and distributed via social media with the purpose of:
(1) Swaying opinion, sparking emotion, or even causing outrage among individuals who - believing the information to be true - click, comment, and/or spread the information and/or take some form of action that supports a particular cause or point of view
(2) Getting the reader to click through the content, driving ‘click revenue,’ and view and even click on web ads, driving more revenue and, potentially, purchases.”[17]
III. Societal Dangers of Fake News
The manufacturing of fake news causes a host of problems which stems from both a financial and ideological motivation.[18] Such misinformation is oftentimes “masterfully manipulated” to look like reliable news reports and serves to “inflame tensions and deepen partisan divisions,” causing people to “double down on opinions they already have.”[19] According to one journalistic study, outrageous and fake news stories spread faster because they are outrageous and tend to have sensationalist headlines that draw in viewer “clicks” which are then are converted into revenue dollars.[20] It could be argued that fake news and misinformation has always been around and is an age-old problem. However, this argument would fail because the characteristics that incentivize the creation of fake news, makes it easier than ever before to spread. In turn, this now poses a serious threat to society as a whole by eroding the public’s trust in established, reputable sources of reliable information.[21] Moreover, a recent poll reported that trust in the mainstream media dropped so sharply that only thirty-two percent of respondents claimed to have “a great deal” or “a fair amount” of trust[22] for the established news outlets, the lowest in the report’s history.[23] Such growing distrust is not restricted to the media alone as the credibility of intelligence agencies and scientists are being called into question more.[24] Pew Research Center found in a recent survey that sixty-two percent of US adults get at least some of their news from multi-service media platforms. [25] Of this sixty-two percent, eighteen percent get their news from social media “often,” twenty-six percent got their news from social media “sometimes,” and eighteen percent get it “hardly ever.” [26] On the one hand, established news organizations have reputational concerns that deter the reporting of false or unverified information.[27] On the other hand, fake news publishers do not share these same concerns but their stories are much more widely shared than the top, actual news stories on social media.[28] As a result, fake news creates confusion and fools people into believing deceptive information.[29] Thus, the erosion of public trust in traditional news sources creates a vicious cycle with regards to which sources users can trust, further creating a vacuum that fake news is quick to fill.[30]
[1] ESSAY: Separating Fact From Fiction: The First Amendment Case for Addressing “Fake News” on Social Media, 46 Hastings Const. L.Q. 1, 2.
[2] ARTICLE: FIGHTING FALSITY: FAKE NEWS, FACEBOOK, AND THE FIRST AMENDMENT, 35 Cardozo Arts & Ent LJ 669, 672.
[3] 46 Hastings Const. L.Q. 1, 3.
[4] Id.
[5] NOTE: From Diet Pills to Truth Serum: How the FTC Could Be a Real Solution to Fake News, 71 Fed. Comm. L.J. 105, 107-108.
[6] 46 Hastings Const. L.Q. 1, 2.
[7] ARTICLE: Combating Fake News with “Reasonable Standards”, 43 Hastings Comm. & Ent. L.J. 81, 85.
[8] Id.
[9] 46 Hastings Const. L.Q. 1, 5.
[10] 46 Hastings Const. L.Q. 1, 3.
[11] 43 Hastings Comm. & Ent. L.J. 81, 84-85.
[12] COMMENT: Fake News: No One Is Liable, and That Is a Problem, 65 Buffalo L. Rev. 1101, 1102-1103.
[13] 71 Fed. Comm. L.J. 105, 107-108.
[14] 43 Hastings Comm. & Ent. L.J. 81, 82.
[15] 71 Fed. Comm. L.J. 105, 107-108.
[16] Id.
[17] Id.
[18] 46 Hastings Const. L.Q. 1, 3-4.
[19] 35 Cardozo Arts & Ent LJ 669, 670.
[20] 46 Hastings Const. L.Q. 1, 3-4.
[21] 71 Fed. Comm. L.J. 105, 107-108.
[22] The decline of trust in the mainstream media drop was reportedly more pronounced among Republicans than Democrats, plummeting less than twenty percent in 2016. Id.
[23] Fed. Comm. L.J. 105, 107-108
[24] Id.
[25] Id.
[26] Id. at 106.
[27] Id.
[28] Id. at 107.
[29] Id. at 107.
[30] Id. at 108.
