In 1898, that's a long time ago, Spanish-American War was started by newspapers crying, “Remember
the Maine!”
The Maine was an American ship that exploded in Havana Harbor and the newspapers quickly,
particularly the New York World, started pushing article saying, "We need to have a war with
Spain over this.
Remember the Maine, they blew it up."
That was utterly fake news.
It wasn't true and it led to a war.
So, fake news is not a new thing.
The First Amendment does not allow the government to regulate what companies or people, social
media sites, or newspapers, or television stations, doesn't give them the authority
to tell them what to say.
The Communications Decency Act, which was passed in 1996, pretty much insulates these companies
from civil lawsuits for either their attempt to moderate or their decision not to moderate.
Under Section 230 of the Communications Decency Act, there's absolutely no obligation to moderate
so-called fake news.
The exceptions to the Communications Decency Act basically refer to things that would be
violations of federal criminal law or things that would be involved in some way with sex trafficking.
There is no legal obligation for social media platforms to moderate anything other than
things which would be criminal.
The kind of things that have been discussed in the hearings about Facebook, and then the
hearings where Facebook's CEO Mark Zuckerberg was testifying and dealing with things like
so-called fake news.
As for that, there is no law that requires them to do that, number one.
And number two, despite the pressure from the senators, under the First Amendment,
no such law could possibly be constitutional.
This is none of those things.
As the law stands they're completely, uh, immune from liability for, uh, either trying
to edit out or not trying to edit out things which might be deemed as fake news.
More fundamentally, the First Amendment provides very strong protection against any kind of
legislative intent to require social media sites to edit, uh, and censor so-called fake
news.
For one thing, the news that they're talking about is basically what's known as political
speech, and the Supreme Court has said for years that the most important type of speech
that the First Amendment protects is political speech.
And the reason for that is very fundamental.
And it's, it goes all the way back to 1798 when Congress passed a law called the Sedition Act
that made it a crime to criticize the president or the government of the United
States.
And Madison wrote a very fundamental paper where he basically said you cannot have popular
government elections if you can't have a discussion of issues, and parties, and personalities
that run in those elections.
Like any other kind of media, the government cannot dictate, uh, what it calls news, and
particularly on matters of public interest that would be politics whether they think
it's fake or not fake.
The First Amendment is broad, broad protection, maybe broader in this country than anywhere
else in the world, but there really are no extra protections that the press has over
other forms of expression.
Intuitively, people might think that the press has a higher standard of truthfulness, but
in reality, they don't.
Pretty much just as the press doesn't get any extra leeway that the rest of us don't
have, it also doesn't have any extra obligations that we don't have.
If I defamed you and it's not true, I could be liable just as the press could be, no more,
no less.