Opinion: In the fight against fake news, a First Amendment refresher

November 8, 2017

By Dan McCaleb

Fake news is a problem.

That’s evident more than ever after executives from Facebook, Twitter and Google testified this week before Congress regarding Russia-produced fake news distributed on their platforms in the months leading up to last year’s presidential election.

On Facebook alone, 126 million Americans were exposed to Russia-purchased fake news over two years, the company revealed this week.

In the era of social media, information overload and partisan polarization, fake news has become a popular – if dishonest – tool in efforts to affect public opinion.

While it is a problem, it’s one for the marketplace to deal with, not for government to regulate.

Yet recent rhetoric coming out of Washington, D.C., Springfield, Ill., and elsewhere sounds more and more like government efforts to squelch speech through censorship, and that would be worse than the fake news itself.

“Why Isn’t the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!” President Trump wrote on Twitter last month.

Of course to Trump, fake news is any media coverage that portrays him in an unfavorable light.

But just as Trump’s call for a Congressional investigation into left-leaning media outlets such as CNN, MSNBC and – as he calls it – the “failing” New York Times is antithetical to the freedoms guaranteed by the First Amendment of the U.S. Constitution, so too are any attempts to censor. This would include censoring social media outlets that admittedly – though unknowingly – have run clearly fake news stories on their platforms.

“Should Facebook be a platform that foreign adversaries can use to run political ads,” Sen. Christopher Coons, D-Delaware, asked a Facebook attorney at Tuesday’s hearing about an anti-Hillary Clinton ad paid for in Russian rubles.

The answer, of course, is no, it shouldn’t. But not because a government official said it shouldn’t.

As a highly profitable business that employs tens of thousands of Americans and is used by more than a billion people across the world, Facebook should not want to be that kind of platform – at least not if it hopes to remain successful.

And that was reflective in its response.

“That advertisement has no place on Facebook,” the company’s general counsel, Colin Stretch, replied to Coons. “And we are committed to preventing that sort of behavior from occurring again on our platform.”

If Facebook isn’t responsive to such fake news on its site and doesn’t determine how to drastically reduce it or eliminate it altogether, the marketplace – Facebook users – eventually will hold the company accountable for it. And that wouldn’t be good for Facebook, or its investors.

That’s how the free market works.

While there’s nothing wrong with Congress shedding light on the problem, it can’t overstep its authority.

On Wednesday, Illinois Treasurer Michael Frerichs announced his own attempt to censor Facebook. As treasurer, Frerichs is the state’s chief investment officer. It is his responsibility to invest taxpayer dollars in the stock market and elsewhere to help increase state revenue.

In a news release, Frerichs said he and other investors filed a shareholder proposal – disturbingly titled “Report on Content Governance.” It demands “that Facebook disclose information on its oversight and policies to stop the spread of fake news, election meddling, and hate speech.”

Investors, Frerichs included, have a right to push Facebook on its practices if they jeopardize potential financial returns. But Frerichs also is an elected state official, and he should have an acute understanding of the U.S. Constitution.

“In addition to fake news, Facebook faces a closely related challenge in dealing with hate speech on its content platform. And I solely represent the people in the great state of Illinois …” he wrote to Facebook in his official capacity as state treasurer. “Heiko Maas, Germany’s minister of justice and consumer protection, said in March 2017 that he would propose a law to impose stiff fines of up to 50 million euros on companies whose social media platforms did not respond swiftly to complaints about illegal content.”

Germany’s constitution might allow it to ban hate speech or other “illegal” content. Our Constitution does not.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” the First Amendment dictates (my emphasis added.)

If government starts down that road of censoring social media sites like Facebook, whose speech rights will it go after next?