Fake News and the First Amendment: How to tell fact from fiction
Since the 2016 presidential election, there’s been a sharp rise in the use of the term “fake news” across political and journalistic spectra. Yet, journalists, social media creators and news consumers can’t seem to agree on what that terms means, what its impacts are and what we should or shouldn’t be doing to stop the spread of misinformation. On Tuesday, April 12, KPCC and the First Amendment Coalition hosted a discussion on fake news at KPCC’s Crawford Family Forum. KPCC’s Alex Cohen moderated the conversation, which included UCLA constitutional law professor Eugene Volokh, USC associate professor of writing Mark Marino, senior manager of American Press Institute’s Accountability Journalism Program Jane Elizabeth and First Amendment Coalition executive director David Snyder. The panel addressed the definition, history and evolution of fake news, plus its makeup, appeal, impact and potential undoing.
Fake News, Then and Now
Back in 1874, the “New York Herald” published an entirely false story about animals escaping from the the Central Park Zoo. The paper indicated the story was false at the end of the piece, but many of the readers never reached the end and their response was very real: They made a run for the piers.
That 19th century news was relatively easy to name as fake, said Alex Cohen, KPCC’s host of “Morning Edition,” but these days things aren’t always so clear. “Today, that definition has become a lot squishier,” she said. “Fake news means lots of different things to lots of different people.”
Eugene Volokh, constitutional law professor at UCLA’s School of Law, provided a legal perspective on fake news. “There is no legal definition of fake news, just like there’s no legal definition of ‘hate speech’ or ‘rudeness,’” Volokh said. In most cases, Volokh said, fake news is also constitutionally protected under the First Amendment. The only types of speech that are constitutionally unprotected are libel and perjury, he said. “The general rule of thumb is if it’s about a particular person and it’s a knowing falsehood…then that very well might be constitutionally unprotected,” Volokh said. “But [if] it’s about the world or about the government without individualising it in that way, then it’s protected even if it’s deliberately fake.” Executive director of the First Amendment Coalition David Snyder agreed that unless it is libel, fake news – like all speech – is protected under the First Amendment.
Despite concern over fake news and its societal implications, Snyder said he has faith in the First Amendment. “The solution to speech that you disagree with is not to make the person shut up…it’s to speak again,” Snyder said. “I think it’s beneficial in the end – to the republic – to have as much speech as possible…I have faith that ultimately the journalism outlets that really work to tell the truth are going to be relied upon more than the outlets that don’t do that.” Snyder noted that though the First Amendment restricts what government can do about fake news, it does not regulate the action of independent organizations like Twitter, Facebook or Google.
Snyder said he defines fake news as “news that is presented as actual news – as fact – with the intent of deceiving someone.” He said the term is now used by liberals and conservatives to mean “news that I don’t like” and “news that reports facts that are inconvenient to me.”
The Anatomy of Fake News
“I’d happily call it an art,” Marino said as the conversation turned to the makeup of current fake news stories. “If there’s an art to lying, there’s an art to fake news. It’s a writing form, like anything else.”
Marino said there is a fake news formula he discusses in his course called “the 80-20-10 formula.” (The name, like much of the course and its “sillybus,” is inspired by the pandemonium of fake news.) 80 percent should be true, 20 percent can be “truthy,” and 10 percent is completely truthless, Marino said.
Though fake news is sometimes passed around as a joke, Marino and Volokh discussed, it can stick. “We are wired to be easily duped,” said Volokh. “That’s why so many conmen are effective: They figure out what we want to hear and they give it to us.”
The group discussed how the popular appeal of fake news has made it profitable. “Random teenagers – random anybody – can just put fake news up,” Snyder said. “If they can do it online in a way that gets a lot of eyeballs, they can actually make some money doing this. So there’s a profit motive to creating fake news… It’s there for anybody who’s good at it.”
Jane Elizabeth, senior manager of the American Press Institute’s Accountability Journalism Program, said she performed her own fake news experiment in the spring of 2014. Using a site called Nipsys News, Elizabeth posted a story with the headline “2-year-old walking across America in a diaper” to her Facebook feed. The website provided her with a template and convincing fonts.
The Cost of Fake News
“To me, the cost is the loss of trust in our journalistic institutions,” Elizabeth said, “because people are so confused now by what is fake, what is misinformation, what is disinformation, that they have applied that mistrust to all sorts of news organizations.”
The panel was divided on whether the mistrust that fake news has provoked is ultimately healthy or harmful. Volokh said he sees skepticism of the news media as a benefit of fake news, rather than a cost. “We ought to be distrustful of the media,” he said, pointing to the human fallibility of journalists. “We ought to be as skeptical of [the news media] as we are of the government or of other institutions,” he said.
Snyder agreed skepticism can be a good thing, but questioned whether it can go too far: “There’s a difference between having a healthy skepticism and having doubt about whether there is even such a thing as truth.”
One of the risks of the fake news phenomenon, Snyder said, is society moving closer to the environment of a dictatorship or autocracy where no one believes anything they see in the press. “That’s one of the potential objectives of those who throw around the name fake news,” he said, “to muddy the waters sufficiently that [people] don’t think anyone can tell them what really happened.”
Though the First Amendment does not allow government to regulate fake news that is not libel, the group discussed what can be done to move the country past this so-called fake news moment. Examining a couple of case studies, the group discussed how journalists might effectively and ethically respond to falsehoods and ensure accuracy in their reporting. Elizabeth emphasized the role of education and training for journalists – particularly those who work on social media teams.
Marino provided a few tips for the public on how they can spot fake news. He said news consumers should look at a story’s URL and think about the quality of the news outlet, look at additional sources to ensure there is support for the story, listen to others, and check their own biases and privileges. The list of tips for analyzing news sources that was provided to audience members at the event is available here.