By Ashley Messenger… 

“Fake news” is a term that has been applied to many different things (including satire and genuine news reports that turn out to be incorrect). However, for purposes of this article, I am using the term to refer to speech that purports to be a true journalistic news report but in fact is intentionally falsified and/or simply made up, and it is neither presented as nor intended to be taken as merely satirical. In other words, it’s an intentional lie that deceives the public. The motive may be to make money, to support or oppose a political candidate or cause, or simply to fool people. For these purposes, the precise motive is irrelevant insofar as the purpose is not to promote the truth or attempt to inform the public. It is faulted for creating a variety of social problems, contributing to political divisions in the U.S., and interfering with elections in the U.S. and abroad, and there have been calls for regulation.

With respect to the legal aspects of fake news, there are two important points: (1) Much of what is called fake news is probably constitutionally protected speech. First Amendment protection is not conditioned upon whether speech is helpful or good. The Founders had other priorities in mind. But by making a broad grant of freedom to the public, the Founders also expected the public to behave responsibly. That means: (2) The law must accommodate the broad conception of free speech and also limit liability for those who attempt to engage in good faith corrections of the record. In essence, the law must be consistent with the epistemic and moral positions in which the Founders placed government and citizens.

The purpose of this essay is simply to acknowledge that the First Amendment is structured in such a way that leaves citizens responsible for upholding certain moral and epistemic duties. In short, it does no good to call for regulation of “fake news,” because the Constitution makes the citizenry the regulators. Our system requires the good faith participation of citizens, and works only when they, in fact, participate in good faith. To the extent that we are suffering the consequences of fake news, we are suffering the consequences of the failure of citizens to uphold the duties imposed by our Founders.

America’s Founders included the freedoms of speech and press in the First Amendment because they wanted to ensure that the Government would not attempt to control what could be deemed “truth”; they feared the establishment of some political orthodoxy that allowed some views to be expressed while others were censored. The First Amendment, therefore, removes such power from the Government. As the Supreme Court stated in West Virginia State Board of Education v. Barnette, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Over time, the Supreme Court has made clear that neither truth nor morality are prerequisites for protection under the law. Truth is certainly not required for protection: United States v. Alvarez explicitly provided First Amendment protection for lies (in the absence of some heightened form of harm), and New York Times Co. v. Sullivan provided protection to false statements about public officials in libel cases (unless the plaintiff could prove a heightened standard of fault). The law also protects much speech that many consider morally problematic: hate speech, indecency, and violence. In short, the First Amendment is epistemically and morally neutral. Fake news has flourished in this environment.

What’s important to remember, though, is that even though the Founders wanted to limit the Government’s power to control content or declare certain views to be “truth,” they in no way intended for individual citizens to be epistemically or morally neutral. On the contrary, the purpose of the First Amendment is precisely to allow individuals to have access to a wide range of views so they, individuals, can determine what to believe, and the Founders assumed that citizens would strive to be moral, rational, and truth-seeking. In fact, in 1774, the Continental Congress explicitly stated that truth, science, morality, and the sharing of ideas for the purpose of forming a common understanding of the world and good government were primary goals of press freedom:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.

With respect to finding truth, the Founders believed in reason. Perhaps they were overly optimistic, but they assumed that people wanted to know the truth and would examine facts and ideas carefully. A free press was valued and privileged in large part because of the confidence they had in the ability of persons to discern the truth. They were familiar with Aeropagitica, a 1644 speech given by John Milton, arguing for the freedom of print materials without a license from the British government. He famously stated:

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.

Moreover, the Founders expected citizens to participate, to engage with one another in good faith for the purpose of discerning truth and developing a civil society. As Justice Brandeis stated in Whitney v. California (emphasis added):

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that, in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty and that this should be a fundamental principle of the American government.

The Founders also believed strongly in the importance of personal virtue, noting that it was crucial to the functioning of the republic. The colonial state constitutions acknowledged that the blessings of liberty were contingent on the good behavior of citizens and officials alike. For example, the Constitution of Virginia declared: “That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by frequent recurrence to fundamental principles.” And Pennsylvania’s constitution stated: “That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free: The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislatures and magistrates, in the making and executing such laws as are necessary for the good government of the state.” Massachusetts had strikingly similar language in its state constitution.

The Founders’ assumptions that citizens would strive to be thoughtful, rational, and moral may not have been explicitly emphasized in the U.S. Constitution – presumably because they were taken for granted – but those assumptions were nevertheless built in to the idea of granting freedoms to individuals. Although the Founders certainly anticipated instances of abuse, they nevertheless chose a system where the Government may not establish legally enforceable standards with respect to speech and press. It is, instead, incumbent upon the rational agents in the community to consider the epistemic and moral dimensions of speech. In short, the Founders established a framework that imposes some obligations on citizens to live up to certain moral and epistemic obligations for the sake of good government and a good society.

To miss this is to misunderstand the fundamental faith the founders had in human beings. They established a government by the people and for the people because they believed that the people, together, could aspire to something great. The Founders had a hopeful trust in citizens – a vision of a rational society that aspires to truth. The law therefore needn’t force any vision of the truth because the people themselves would aspire to it.

Thus, the notion of government regulation of speech or press fundamentally repudiates the vision of the founders. Any “regulation” is through the self-government of citizens who bear their responsibilities to speak truthfully, to examine the claims of others, and to correct falsehoods when required.

Fake news is certainly testing the vision of the Founders. It presents both epistemic and moral problems, for obvious reasons. If the stories purport to be true but are in fact false, then, from an epistemic standpoint, they do not contribute to either an individual’s or society’s body of knowledge – and worse, they actually hinder the ability of a person or groups to determine what is true by creating doubt in the public’s mind about which “facts” to believe. From a moral standpoint, it is not acceptable to make knowingly false statements and present them as true. And yet despite the epistemic and moral issues with fake news, some stories may be wholly protected by the First Amendment.

Ideally, speakers will be honest in their speech, and many are. But the reality is that we cannot always rely on speakers to uphold their obligations, especially when there are no legal consequences for the failure to do so. This places a much greater burden on the audience to evaluate the truth of assertions and to uphold epistemic norms. The audience may have to consider factors such as how sincere the speaker seemed; how well-placed the speaker was to have the knowledge in question; what motives the speaker may have; what pressure the speaker feels to speak responsibly; and whether the assertion was supported by corroborating known facts.

If the speaker is anonymous or pseudo-anonymous, one may need to suspend belief in any “facts” asserted unless they are otherwise corroborated. Anonymous speech can serve an important purpose, particularly when the speaker is subject to potential threats, and there is a strong tradition of anonymous political speech in the U.S. But typically, credible, persuasive anonymous speech comes in the form of analysis or opinion, meaning it discusses a matter of policy or conscience; it is not trying to report or establish facts. The political brochures of the American Revolution were arguments in favor of freedom, not purported news reports. One can judge the merits of an opinion or argument without knowing the speaker, but it is difficult to judge the credibility of a factual assertion without more information about the speaker: Are they generally credible? What is their source? Are they in a position to know?

If the audience can’t be certain what’s true, at least the audience can moderate belief. The audience must account for the fact that some people make up facts. This may mean that in the absence of corroboration or clear evidence, one should suspend judgment. We seem to believe that we must have an opinion about every topic, but from a moral and epistemic standpoint, it may be superior to refrain from forming firm beliefs and instead remain open to new information. As Truth grapples with Falsity, one needn’t call the match too soon.

As a corollary to that principle, those who do have knowledge of the facts have an obligation to speak up and to correct the record when necessary to prevent others from believing false assertions. If in fact the Founders believed that public discussion is a political duty, then it is incumbent upon citizens with genuine knowledge to ensure that others are not fooled by lies. Those who purport to be leaders – in journalism, politics, or otherwise – have an obligation to call out statements that are clearly false as well as to call into question statements that require further examination. It is particularly important for leaders to do so when the statement, left unchallenged, would seem to help them or their allies. Studies indicate that one of the greatest indicators of credibility is a correction from a source when the erroneous claim would have been in the source’s favor.

Finally, because the Founders have placed citizens, not government, in the role of discerning the truth, the First Amendment must fully protect efforts to fulfill our obligations. This means that courts must modify some traditional libel law principles to reflect the realities of reporting in an environment where people are intentionally making false statements and grant constitutional protection to speech that either reports on falsehoods or attempts to correct a falsehood.

I have previously written about how libel law currently fails to account for situations in which one is advising the public of a potential falsehood, not to perpetuate the falsehood, but to advise the public on the controversy. The republication rule – which provides that ANY re-publisher is equally liable as the original publisher – simply does not make sense in the context of fake news. Those who originate or republish false statements for the purpose of persuading the public that they are true should be treated differently from those who republish the statements with the purpose of advising the public that they are or may likely be false.

Moreover, the courts should be reluctant to impose liability on a speaker who objects to the assertions of others. There are a slew of libel cases where plaintiffs allege that they are defamed as “liars,” because another has deemed their assertions to be untrue. The courts should provide protection to those who have legitimate motives in questioning unfounded assertions or are presenting their views of the events in question.

Our constitutional republic was founded on an ideal of citizen participation, and we place our country – and our freedoms – at great risk when we don’t take seriously the responsibilities that the Founders assumed we would uphold. The problem of fake news should be a wake-up call – not for more government regulation, but for greater citizen participation in the moral and epistemic community.

Ashley Messenger is Senior Associate General Counsel at NPR in Washington, D.C., specializing in First Amendment law. She has taught First Amendment law at the University of Michigan Law School. This piece is adapted from an article originally published at 16 First Amend. L. Rev. 328 (2018).