Bad Idea Or The Worst Idea? Having The FTC Regulate 'Fake News'

from the the-first-amendment-would-like-a-word-with-you dept

Over the last few months, we've talked about the weird obsession some people upset by the results of the election have had with the concept of "fake news." We warned that focusing on "fake news" as a problem was not just silly and pointless, but that it would quickly morph into calls for censorship. And, even worse, that censorship power would be in the hands of whoever got to define what "fake news" was. Thus, it was little surprise to see China and Iran quickly start using "fake news" as an excuse to crack down on dissent online.

And, of course, just recently a pretty thorough study pointed out that "fake news" didn't impact the election. It turns out that -- just as we said -- fake news didn't really change anyone's mind. It just served as confirmation bias.

Either way, there are still a bunch of people who are really focused on this idea of "fake news" and how it must be stopped. The latest to step in with a suggestion is MSNBC's chief legal correspondent Ari Melber, who is suggesting that "fake news" can be regulated by the FTC in the same way that it goes after fraudulent advertisers who put up "fake" websites pretending to be impartial news sites talking up the wonders of acai berries or whatever. To be fair to Melber, his suggestion is carefully framed and includes many of the important caveats. This isn't a piece that's filled with the "you can't yell fire" kind of tropes, but it's still problematic.

You can read Melber's whole piece, where he admits that the 1st Amendment is an issue, and that courts are very careful about it, but seems to think it's no problem to stretch cases where the FTC goes after companies who are directly making stuff up to sell a product to cover situations where sites are making stuff up to get clicks or to sell a political candidate:

The FTC could develop a framework for pursuing fraud news about political propaganda, or work with Congress to define a framework consistent with the First Amendment.

The FTC's recent actions against fraud news proprietors typically targeted a two-step practice: They posted misinformation about a product, then sold the product. In fraud news, however, the political misinformation is the product. And, it's free.

We live in a world where most news consumers never purchase their news directly. They consume it online in exchange for viewing ads, or in exchange for providing their personal information (instead of money). An FTC framework for fraud news would treat these readers as ‘consumers,’ and target the websites for deceptive acts against them.

To follow First Amendment precedents, the framework could limit the FTC to only regulating posted articles—not seeking prior restraints against future articles—and to only regulate businesses devoted to fraud news.

This is... a bad idea. It's one of those ideas that sounds clever for a few seconds until you actually start thinking about it. There's also basically no way it passes 1st Amendment scrutiny. First of all, as a former FTC official told the Washington Post, this is pretty clearly outside the FTC's jurisdiction:

“The FTC's jurisdiction extends only to cases where someone is trying to sell something,” said Vladeck, now a law professor at Georgetown. “Fake news stories that get circulated or planted or tweeted around are not trying to induce someone to purchase a product; they're trying to induce someone to believe an idea. There are all sorts of First Amendment problems, apart from, I think, the insuperable jurisdiction problems, that the FTC would have.”

And, as always seems to be the case with "fake news," there's the whole "eye of the beholder" problem. That is, whoever gets to define what fake news is... can do an awful lot of damage. Our own President has now taken to calling CNN "fake news" -- when it's really just news he doesn't like, or with a slant he doesn't like. Do we really want to give the FTC -- whose commissioners are appointed by the President -- the power to take down news for being "fake?"

Melber seems to think there's a way around that... but it's a sleight of hand. He just stops calling it "fake news" and calls it "fraud news" instead. As if that solves everything:

Fake news is an intentional effort to spread false information in the guise of a factual news product. It does not refer to news one merely dislikes, or to false information erroneously published by a legitimate news outlet. (From newspapers to scientific journals, factual institutions do make mistakes. Even in error, their commitment to correction separates them from propagandists.)

To use a legal framework, fake news is essentially a scheme to trick the consumer—a fraud. Perhaps ‘fraud news’ is the better label.

Fine. So then Trump will just start calling news he doesn't like "fraud news." What difference does it make? Once you start down that slope it gets slippery pretty damn quick. To Melber's credit, he doesn't go nearly as far as the suggestions of others -- such as this painfully silly argument from a few weeks ago that fake news shouldn't get any First Amendment protections at all by shoving it into one area of unprotected speech: libel law.

Either way, all of these still boil down to the same basic idea: stories that are deemed fake are bad, and thus should be censored. The problem here, of course, is that no one actually bothers to determine if they're really that bad, or really cause that much harm. And, also, all of this puts the onus on the government to fix the fact that some people deal in confirmation bias and believe things that aren't true. Censoring "fake news" doesn't solve that problem. It just creates yet another tool for censorship.

Filed Under: ari melber, fake news, first amendment, fraud news, free speech, ftc