Managing the Misinformation Marketplace: The First Amendment and the Fight Against Fake News

By Daniela C. Manzi

In recent years, fake news has overtaken the internet. Fake news publishers are able to disseminate false stories widely and cheaply on social media websites, amassing millions of likes, comments, and shares, with some fake news even “trending” on certain platforms. The ease with which a publisher can create and spread falsehoods has led to a marketplace of misinformation unprecedented in size and power. People’s vulnerability to fake news means that they are far less likely to receive accurate political information and are therefore unable to make informed decisions when voting. Because a democratic system relies on an informed populace to determine how it should act, fake news presents a unique threat to U.S. democracy.

Although fake news threatens democratic institutions, First Amendment protections for false speech present a significant obstacle for regulatory remedies. This Note explores the ways these speech protections interfere with the government’s ability to protect political discourse—the process that enables it to function effectively—and proposes that the government regulate journalists to ensure that people can rely on legitimate news media to receive accurate information.