Hillary Clinton and John Podesta are running an underground child trafficking ring out of a local Washington, DC pizza joint. Pope Francis endorsed Donald Trump for President of the United States. Donald Trump sent his personal airplanes to rescue stranded marines overseas. What we all (hopefully) know by now is that all of these stories are fictitious, and each was spread to readers worldwide by social media platforms such as Facebook, Twitter, and Google. Fake news, also called “disinformation” or “disinfo”, has obviously been around for millennia, but now, with recent advancements in technology, fabricated stories spread at a much faster rate than they could before and appear more credible because of enhanced technologies such as photo editing software and webpage design.
Newspapers and journalists have long held legal and ethical responsibilities to fact check their stories and report the truth, or face libel and slander actions, in addition to a loss of public good will and readership. But, with an increasing number of adults worldwide turning to social media for their news, the question arises: do social medial companies have a legal responsibility to report or censor fake news?
Facebook, specifically, serves as a salient example. While users are free to select the people and entities they wish to follow, the platform itself helps to curate the posts any user actually sees on his or her newsfeed in an effort to “maximize engagement”. Facebook fuels this curation with the help of an ever-changing algorithm. But, unlike newspapers, Facebook does not take editorial responsibility for the content on its site. Facebook claims that it’s not a news site, but rather a venue where users can stay connected to friends and family. That is definitely true, but it doesn’t adequately address the fact that approximately 44% of the general population purposefully seeks out news on Facebook. After considering that fact along with the hypothesis that fake news played a role in influencing the outcome of the recent presidential election, the question is evident once again: does Facebook have a legal responsibility to report or censor fake news?
American legal history serves as an important anchor and jumping off point. The Sedition Act of 1798 made it a crime to print “false, scandalous, and malicious writing” about the government. Journalists and others were prosecuted under the Act, and some were imprisoned. Federalists praised the Act for reinforcing national security, but the Democratic-Republicans largely saw the Act as a violation of free speech. The constitutionality of the Act never reached the Supreme Court, however, as it was quashed politically when President Thomas Jefferson took office, but given it’s clear infringement of a constitutional right, it’s possible that the Court would have overturned it as a violation of the First Amendment.
The First Amendment generally protects the freedom of speech and expression in the United States. While the types of protected speech are broad, including artistic, scientific, and political, the government has placed some restrictions on speech and expression constituting incitements to violence, obscenity, fighting words, and commercial advertising. Defamation law evolved out of the First Amendment to protect citizens from the harms surrounding false speech. Over time, however, the Supreme Court reined in the possible causes of action for a defamation suit to better comport with First Amendment guarantees. The main boundaries of constitutional defamation law were drawn by the seminal case of New York Times v. Sullivan, decided in 1964, which stands for the idea that a public official cannot recover damages for a “defamatory falsehood related to his official conduct unless he proves that 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.” Gertz v. Welch, decided a decade later in 1974, extends that holding to public figures as well. The cases reason that public officials and figures “opt in” to the spotlight and also have sufficient recourse to “self-help.” “Actual malice” is thus justified as the bar for seeking damages.
Analyzing the current fake news predicament under the New York Times and Gertz tests, it is possible that someone like Hillary Clinton might be able to bring a defamation suit against a company like Facebook or Twitter for propagating fake news. While it’s unlikely that she would do so for political reasons, it would also be very hard to prove that Facebook or Twitter had actual knowledge that the subject of the news post was fabricated. The “actual malice” standard is a very high bar for any plaintiff.
Given that it would be difficult for any plaintiff to bring a private suit against fake news, it’s worth analyzing some relevant government regulation in the space. The Federal Communications Commission (FCC) prohibits the broadcasting of hoaxes. The rule “prohibits broadcast licensees or permitees from broadcasting false information concerning a crime or a catastrophe if: (1) the licensee knows this information is false; (2) it is foreseeable that broadcast of the information will cause substantial public harm; and (3) broadcast of the information does in directly cause substantial public harm.” This rule could possibly, but not probably, serve as legal liability for social media firms that disseminate fake news. First, it’s not clear whether social media companies can be classified as broadcast licensees or permittees, and it’s likely that this determination would have to be made on case-by-case basis. Second, while it might be possible to satisfy the latter two elements of the test, the bar for the first element, like the bar in New York Times or Gertz, would be rather high. Furthermore, Section 230 of the Communications Decency Act protects social media companies by providing them with immunity from liability for information provided by others.
All that said, it seems that the solution to the fake news problem is an ethical one, rather than a legal one. While there is plenty of room for healthy debate and discussion, in the end, to treat social media companies as news organizations under the law would be to stifle one of modern society’s most popular avenues for freedom of speech and expression.
On the other hand, the European Union may choose to take a very different approach. The Commission announced just last month that if social media sites do not take action to combat fake news, they could face action from the Commission. What this action might look like is still unknown, but from a U.S. vantage point, it’s worth watching to see if the Commission can strike the right balance of limiting fake news while still protecting freedom of speech.