Fake News May Not Be Protected Speech

Noah Feldman: “In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.”

“But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even ‘the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.'”

“The question is whether government regulation of fake news would be justified and lawful to fix this market failure. Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.”

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