FREE SPEECH, RATIONAL DELIBERATION, AND SOME TRUTHS ABOUT LIES.

• Author: Chen, Alan K.

TABLE OF CONTENTS INTRODUCTION 360 I. THE "FAKE NEWS" PHENOMENON 366 A. Defining Fake News 366 B. A Brief Chronology of Fake News 368 C. Anticipating Free Speech Concerns with Preliminary Attempts to Regulate Fake News 376 II. FAKE NEWS, RATIONAL DELIBERATION, AND FIRST AMENDMENT COVERAGE 383 A. Arguments Against First Amendment Coverage of Fake News 383 B. The Role of Rational Deliberation in Free Speech Theory 391 III. THE POTENTIAL SPEECH VALUE OF FAKE NEWS 394 A. The Limits of Rational Deliberation as a Speech Principle 395 B. Fake News May Promote Self-Realization by Facilitating Expressive Experiential Autonomy 402 C. Fake News May Promote Social Cohesion 411 IV. LIMITATIONS AND HOPES 417 A. Limitations 417 B. Noncensorship Proposals 421 1. Counterspeech 421 2. Technological and Platform-Based Solutions 425 3. Structural Changes to the Information Environment 427 CONCLUSION 429 INTRODUCTION

Senator Daniel Patrick Moynihan famously once said, "Everyone is entitled to his own opinion but not to his own facts." (1) This Article examines the extent to which the second half of this iconic bit of wisdom is valid. That is, it explores whether there are ways in which even so-called fake news may have some First Amendment value, particularly to its listeners, in ways that have previously gone unrecognized. If such mistruths do have some value, this has important theoretical, doctrinal, and policy implications. At the theoretical level, such a claim tests the boundaries of self-realization justifications for classifying types of communication as "speech" and invites comparisons to other forms of expression that might be valued not because they appeal to rational, cognitive processes but to emotional functions and experiences. From the doctrinal perspective, recognition of the possible value of fake news substantially complicates the already difficult constitutional challenges facing the potential regulation of such communication to safeguard our democracy from epistemic harm. And from a policy standpoint, understanding the ways that fake news provides value to some of its consumers could help explain why it is so pervasive and why direct censorship might be counterproductive--crucial perspectives for policymakers trying to study and devise solutions to counteract its negative effects.

The phenomenon of fake news stories in the United States is hardly new, extending back at least as far as the period of the American Revolution. (2) The possible influence of fake news continues to be salient in the wake of the 2016 U.S. presidential election and the foreground of the 2020 election, not to mention President Trump's now commonplace invocation of the phrase to assail his critics in the mainstream media. (3) Fake news seems to pervade every conceivable topic of public interest, from electoral politics to the COVID-19 pandemic to voter fraud to climate change. Whether the problems associated with fake news are substantially worse now than they have been in the past, because of the emergence of social networking platforms and the inability or unwillingness of internet intermediaries to take control of or responsibility for content, (4) is debatable. (5) This Article remains agnostic on that point, which is not central to its analysis.

Despite widespread public outcry over the perceived problems of fake news, and, to a lesser extent, politicians' lies, and the instinctive desire to do "something" about the problem, meaningful regulatory proposals have been, thus far, rare. (6) One reason for this may be that the First Amendment's Free Speech Clause likely represents a significant barrier to such efforts. State regulation of fake news dissemination would be inherently content-based, and therefore suspect under current doctrine, particularly since the Supreme Court has rejected the proposition that lies are categorically exempt from First Amendment protection. (7) Although such constitutional protection disappears when the lies cause a legally cognizable harm, there remain numerous constitutional barriers to valid regulations, including concerns about vagueness, overbreadth, the government acting as the gatekeeper of truth, and the potential for weaponization of such laws to interfere with truthful speech. (8) The focus of this Article, however, is not on such traditional First Amendment claims.

To the general public, and even many academics, the proposition that laws restricting fake news violate the Free Speech Clause must seem absurd. If the constitutional guarantee of free speech means anything, surely it should embrace protection of the integrity of public discourse such that government restraints on verifiably false statements of fact should fall well outside the boundaries of what counts as speech. Thus, another claim supporting the legitimate regulation of fake news would be that, like obscenity, (9) private defamation, (10) and fighting words, (11) fake news is a category of expression that not only has little or no social value but also causes tangible, epistemic harm to society by denigrating or distorting public discourse and undermining democracy. (12) This argument, in turn, relates to a central claim that underlies much First Amendment theory--that speech's value is primarily connected to its ability to facilitate rational deliberation in its audience, thus advancing the goals of promoting democracy and truth finding. To the extent that fake news undermines rational deliberation, it is seemingly antithetical to those foundational speech objectives and its regulation therefore ought not to be a concern of the First Amendment.

This Article addresses such claims by undertaking a broader inquiry. It uses fake news as a vehicle for exploring the limits of rational deliberation as an organizing principle for free speech law. While it is certainly not the first scholarly work to critically examine the role of rational deliberation under First Amendment law, what it shows is that even the democracy- and truth-promoting rationales for covering speech do not always and should not always rely solely on individuals' capacity for rational deliberation. At the same time, this does not at all eliminate democracy or truth seeking as justifications for covering and protecting speech. Rather, this exploration of rational deliberation reveals the incomplete way that First Amendment law conceptualizes how individuals receive and experience different forms of expression. (13)

As a way of testing these ideas, this Article examines how they might be used to think about First Amendment law's application to regulatory responses to the perceived proliferation of fake news through social media platforms. This Article argues somewhat counterintuitively that fake news has social value because while it might not promote rational deliberation--indeed, it might undermine rational deliberation--free speech law should not be exclusively focused on the goal of promoting such deliberation. Free speech law should also protect people from government control of the way they emotionally or viscerally experience ideas and beliefs, and maybe even the facts that underlie those thoughts. Furthermore, in many instances, fake news also promotes social cohesion by building a cultural connection among individuals with certain belief systems. Governmental efforts to directly regulate or prohibit fake news thus may paradoxically promote some goals of free speech, while contravening others.

Thus, this Article disputes the premise that fake news has no intrinsic value. Rather, this category of speech might be understood to facilitate a type of listener self-realization that I call expressive experiential autonomy. Understood in this way, fake news might even be conceptualized in the same way the law understands religious self-realization, which is similarly premised on faith rather than historical fact. In addition, this approach compares consumers of fake news to listeners who value certain forms of nonverbal communication, such as abstract art and instrumental music, not because it promotes rational deliberation but because, like artistic expression, it "serves a community building function... [and] simultaneously advances an autonomy-promoting function in its facilitation of individualized emotional expression and experience." (14) Finally, those who value fake news in this way might be communicating their connection not only by how it affects them but also in signaling to others that they are part of the same community. (15) Clicking "like" on or retweeting a fake news story on social media is its own powerful form of communication. (16) On this view, fake news can be seen as a vehicle for the development of social cohesion among marginalized groups in our political structure that is based not on objective truths but on a worldview reliant more on faith and self-identification than on tangible reality.

Moreover, seeing fake news through this lens complicates the efforts of reformers even more than traditional First Amendment doctrine. This perspective views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking simultaneously to distinguish themselves through individualization or self-identification and to form a group association with a community of people with whom they share values. But this understanding of fake news does not just expand our thinking about free speech; it may also help us to understand why fake news can be so effective. That, in turn, might help policymakers to understand the phenomenon and aid us in thinking about ways to address the conceded social harms caused by the proliferation of fake news.

To be clear, this is not a defense of fake news or those who intentionally attempt to influence others' behavior by spreading false facts disguised as legitimate news. This Article concedes that fake news may work serious social harms, though perhaps takes a more muted view about the degree...