Fighting Falsity: Fake News, Facebook, and the First Amendment

Fake news stories about the major presidential candidates became widespread on Facebook and elsewhere online in the months leading up to the 2016 presidential election, raising questions of whether fake news influenced the outcome of the election. The ease and speed with which false news stories can spread online poses a threat to the efficient functioning of our democracy, a threat the government has a compelling interest in addressing. Political speech, however, even when false, is highly protected by the First Amendment, making it unlikely a valid law against fake news could be crafted. Candidates might pursue defamation actions against the sources offake news stories about them, although this is unlikely to be effective in combatting the harms fake news might cause.

This is partly due to section 230 of the Communications Decency Act, which immunizes social media sites like Facebook, as well as the sites' users, for the (often significant) roles they play in the dissemination of fake news stories. Section 230 also provides immunity to sites like Facebook to restrict or remove objectionable content such as fake news stories from their sites, providing an alternative to government regulation.