Lili Levi has posted this draft on SSRN (forthcoming, First Amendment Law Review). Here is the abstract:
“Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today.
In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment.
The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.