Fake news or free speech?
Written by Jaden Flach
In an age of constant access to information and each other, social media has become a trusted source of reliable news for many Americans. During the 2016 elections, we saw the beginning of what would become a major transition of Americans turning to Tiktok and Instagram for the ‘truth’ about political candidates instead of mainstream news outlets. Now, in 2024, we are living in a reality where the unregulated, wild west of social media is defining ‘truth’ and ‘fake news’. Not only is this the new frontier of journalism, but it is also a space largely unregulated and lacking litigation.
The increasing polarity of cable news is one reason that the public is turning away from these traditional outlets for information. Since the 2016 presidential election, major platforms such as Fox have shifted farther towards the conservative right while platforms such as MSNBC have shifted to the left. This polarization of the media reflects and actively widens the gap that exists within America today. Although news agencies such as CNN, FOX, and NBC have their flaws, they are all held to a common standard and rule of law also known as the Federal Communications Commission, an independent government agency that regulates radio and television among other sources of communication. The FCC acts within a narrow space of promoting equality within the media industry without infringing on the First Amendment of the U.S. Constitution, which decrees that the federal government "shall make no law … abridging the freedom of speech, or of the press."
Yet, the FCC can intervene in certain situations, including Broadcast News Distortion and Hoaxes. In order for the FCC to act in a case of distorted news, the alleged incident "must involve a significant event and not merely a minor or incidental aspect of the news report." The scope of the FCC’s authority is significantly reduced by the First Amendment. This constitutional safeguard makes it challenging for any government agency, including the FCC to interfere or limit content, even if it appears biased and misleading. As a result, broadcasters are only subject to oversight if it can be proven beyond a doubt that they have deliberately distorted a factual news report. Conversely, the rules surrounding Hoaxes are more broad. The Commission’s prohibition surrounding the broadcasting of hoaxes concerns false information relating to a crime or catastrophe. In these instances, broadcasters are subject to enforcement if the information is known to cause substantial public harm. In this way, the FCC is less restricted by the First Amendment, seeing that the amendment states that deliberately harmful misinformation falls outside the boundaries of protected speech.
Although these regulations may seem capable enough to tackle the onslaught of fake news that has plagued America in recent years, the FCC’s authority only extends to media corporations. This is mainly because the broadcast spectrum is considered a limited public resource, or a scarce resource that is owned and regulated by the government but available for public use. Although media outlets like NBC and CNN are themselves not limited public resources, the broadcast spectrum that these outlets use to transmit their signals is considered one. In contrast, social media and the internet in general are open platforms not owned or regulated by the government and thus are given greater First Amendment protections.
When it was first created, the internet may have been a ‘private’ product, yet in 2024, the internet is very much a public good. Thus, the same logic that is used to regulate broadcasters like NBC should be used to govern the internet. By allowing a qualified board such as the FCC to oversee false and misleading information on the internet, Amerians are in better hands than those of Mark Zuckerberg, founder of facebook, or Mike Krieger, founder of instagram. Further, these same regulations should extend to the domain of social media. Why should these platforms that are used by almost 70 percent of the population be left to the whims of money hungry CEOs.
This being said, the online world is not completely lawless. In 1996, congress passed the Communications Decency Act. Section 230 of the CDA protects online users from governmental regulation and protects online speech. The act effectively provides legal protections for online platforms like social media, enabling them to host user-generated content without being liable for what users post. Section 230 can be broken down into two clauses. First, the Liability Shield states that platforms such as social media networks are not the ‘publisher’ of information provided by users. This protects such platforms from being sued for a wide range of things including defamation and obscenity. The second part of section 230 is known as Content Moderation Rights. This clause allows platforms to regulate content published on their platforms that they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable," even if such content is protected under the First Amendment.
Protections for internet users do not end with the CDA. In American Civil Liberties Union of Georgia, et al. v. Zell Miller, et al, Plaintiffs argued that a Georgia law that would seek to criminalize sending data over the internet while pretending to be someone else, or sending data over the internet using a company’s or organization’s name, trademark, logo, or symbol without permission was unconstitutional. The majority decision in ACLU v. Miller established the right to be anonymous on the internet, while also setting a precedent of prioritizing free speech protections online. At the same time, the case limits states’ ability to regulate internet content, which in turn has shaped how governments have crafted laws to combat misinformation or fake news.
Many issues arise when evaluating this legislature. As social media grows, and misinformation becomes systematic within the institution, is it enough to leave regulation in the hands of those who have propagated the issue?
