PROTECTING THE DEMOCRATIC ROLE OF THE PRESS: A LEGAL SOLUTION TO FAKE NEWS.

Author:Butler, Andrea
 
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INTRODUCTION

It is difficult to discuss the 2016 presidential election without including the impact of fake news (1) in the conversation, and most commentators deplore the effect of fake news' proliferation across the internet on American politics and the public. (2) These conversations have centered on the impact fake news had on the presidential election, (3) as well as concerns that the general public is unable to identify fake news. (4) There have even been more immediately dangerous consequences stemming from fake news, such as a gunman showing up to a D.C. pizzeria to liberate children he believed Hillary Clinton was holding hostage there based on a widely-circulated fake news article. (5) Fake news has been shared widely on social media platforms, primarily Facebook, and these platforms' failure to contain the spread of blatantly false articles has exacerbated these problems. (6)

Fake news is a social problem threatening the public's ability to trust legitimate press outlets (7) and, ultimately, the ability of the press to serve its role in preserving our democracy. (8) Many commentators so far have focused on social solutions to fake news, such as better education for citizens to recognize fake news online, to the exclusion of legal solutions. (9) But the threat fake news poses to the role of a free press in sustaining our democracy necessitates a legal solution to the problem as well. (10) Congress could curb the far-reaching problems of fake news by clarifying the intended implications of [section] 230 of the Communications Decency Act (CDA) (11) on defamation liability for internet distributors. (12) Applying a modified standard of common law distributor liability specifically targeted to address fake news to internet service providers (ISPs) (13) and websites would hold social media websites like Facebook responsible for fake news that site administrators have been informed is defamatory. This would drastically reduce the oversharing and spreading of fake news. (14) A modified standard of distributor liability would be the best legal solution to the problem of fake news because it merely applies a traditional area of tort law to a new technology. Additionally, it would not create ruinous liability for internet companies because most websites already implement similar monitoring requirements to comply with federal copyright law. (15)

This Note will explain the function of the free press in preserving our society, how fake news threatens the press's legitimacy, and why a legal solution is necessary to protect the press's democratic role. It will then propose a legal solution to curb the spread of fake news. Part II will explain that there is a consensus among First Amendment theorists that the role of the free press in a democratic society is to inform the public, allowing them to actively participate in elections and the governmental process. (16) It will also explain how fake news undermines the informing function of the press by eroding the legitimacy and credibility of traditional, reliable news outlets, creating an uninformed public unable to participate effectively in our democracy. (17) Part III will explain the history of defamation liability and the development and legal interpretation of the CDA, which eliminated common law distributor defamation liability for ISPs and social media websites. (18) Part IV will outline how the immunization of websites from distributor defamation liability has created a legal environment in which it is impossible for the subjects of fake news to bring defamation lawsuits against distributors to stop the spread of blatantly false and potentially dangerous material about them. (19) It will also explain how amending [section] 230 of the CDA to reinstate common law distributor defamation liability on a modified basis would be a workable legal solution to the threat fake news poses. (20)

  1. THE LEGITIMACY OF THE PRESS AND ITS EFFECT ON DEMOCRACY

    Before noting current policies contributing to the rise of fake news and identifying potential solutions to curb its proliferation, it is important to first analyze the threat fake news poses to our democracy in order to establish the necessity of such a legal solution. This section will describe the vital role a free press plays in sustaining a democratic government by informing the public and facilitating public participation necessary for self-government. It will also explain why corruption of the public's trust in the press by the spread of fake news impairs the structural function of the press in sustaining our democracy.

    1. The Democratic Function of a Free Press

      The Supreme Court has consistently stated that a free press is essential to the "heart of our democracy and its preservation is essential to the survival of liberty." (21) Defamation liability, (22) on the other hand, is generally considered to chill speech, making it inherently at odds with robust protections of First Amendment values. (23) Thus, any discussion of defamation liability implicates significant tensions between compensating defamation injuries--injuries to a person's reputation (24)--and still protecting freedom of speech and press. (25) But the problems created by fake news raise the question whether public officials could use defamation liability as more than a tool to protect their reputations. (26) Ultimately, these defamation suits could also serve to protect the essential democratic role of a free press from public disenchantment with its credibility and reliability by punishing publishers and distributors of fake news. (27)

      The First Amendment's Freedom of the Press Clause (28) exists because of the press's "crucial contribution to democracy and democratic legitimacy." (29) At the time of the nation's founding, most Americans saw the Press Clause's function as "a bulwark against governmental tyranny," upholding "the individual right of every man to air his sentiments for all to consider." (30) In the twentieth and twenty-first centuries, scholars, courts, and politicians have emphasized various roles the press plays, such as providing information to the public, (31) serving as a forum for public comment and criticism, (32) presenting the values of society, (33) and checking the power and corruption of the government. (34) The Free Press Clause is closely intertwined and therefore often examined in conjunction with the Free Speech Clause. (35) Scholars have questioned if the Free Press Clause can be examined independently from the Free Speech Clause because of the limited work it actually does in protecting American journalists. (36) Because the two ideas are so closely connected by courts and scholars, free press theory is heavily influenced by, and therefore often discussed almost synonymously with, general theories of free expression. (37)

      First Amendment freedom of expression doctrine traditionally rested on the idea that allowing all speech would help society hone in on truth, which would triumph over false ideas in the marketplace of ideas. (38) This theory had significant influence over early and mid-twentieth century development of the Supreme Court's freedom of expression jurisprudence. (39) Modernly, however, scholars have detached free expression doctrine from the truth-seeking justifications of the marketplace of ideas because the theory rests on unverifiable, and likely untrue, assumptions that truth will trump other factors in determining whether individuals will accept an idea as true. (40) Moreover, this theory incorrectly presumes that all citizens evaluate ideas rationally. In reality, the marketplace of ideas has not perpetuated true ideas and cast doubts on false ideas and therefore has not created a better-informed society. (41)

      Justifications for First Amendment freedom of expression doctrine have shifted instead to arguments for increased democratic legitimacy through participation and decision-making, (42) arguments for individual autonomy, (43) and arguments for selfexpression. (44) Scholars addressing justifications for the freedom of the press doctrine have focused specifically on the first two streams of argument. (45) The democratic self-governance theory posits that free expression, and by extension a free press, increases democratic legitimacy by informing citizens and allowing them to make better, more accurate decisions in self-governing and checking their government. (46) The individual autonomy theory, on the other hand, states that free expression and free press increase democratic legitimacy by allowing citizens to act as autonomous agents in seeking information through the press and applying it to their own self-governance. (47) Thus, the democratic self-governance theory is primarily consequentialist, while the individual autonomy theory values free expression as an essential component to democratic legitimacy in and of itself. (48)

      These two theories of the relationship between free expression and democracy result in differing justifications for why a free press creates democratic legitimacy, but both agree that it is vital. (49) The democratic self-governance theory postulates that a self-governing society cannot create optimal social value for its citizens unless the citizens are well-informed and able to contribute robustly to national conversation and debate. (50) The aim of democracy is for voters to make wise decisions--"[t]he voters, therefore, must be made as wise as possible." (51) The Supreme Court has often endorsed this theory, stating "speech concerning public affairs is more than self- expression; it is the essence of self-government." (52) Thus, in the democratic self-governance theory of free expression the primary role of the press is to inform the citizenry (53) because without an informed citizenry democratic decision-making will be less effective, and the government runs the risk of being tyrannized by the well informed. (54)

      The second theory of free expression...

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