Separating Fact From Fiction: The First Amendment Case for Addressing “Fake News” on Social Media

“Fake news” or disinformation that appropriates the look and feel of real news stories continues to spread across social networks, suppressing informed dialogue and sowing civil discord. After revelations that influential media websites like Facebook and Twitter were used to spread fake news during the 2016 presidential election, these companies vowed to take remedial action, but have failed to contain the spread of fake news. This essay makes the case that First Amendment principles mandate that the government has a duty to preserve democratic deliberation and democratic decision-making institutions, even if that means overriding private interests. It explores some prospective measures to address fake news, including a judicial reexamination of §230 of the Communications Decency Act, and a statutory remedy for corrective action. This essay argues that such prospective measures are much needed to help preserve informed discussion on public affairs, which the First Amendment seeks to sustain, both as an end and as a means to achieve a self-governing republic