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Policing ‘fake news’ would be unconstitutional, fraught with peril

Exposure to fake news has become an everyday occurrence in the lives of people around the globe. One U.S. senator thinks something needs to be done about it.

Sen. Mark Warner (D-Virginia), the top Democrat on the Senate Intelligence Committee, spoke to CBS’s Face the Nation Sunday morning:

JOHN DICKERSON (host): You- Another area that it appears you’re interested in is the data operation of the Trump campaign, which Jared Kushner was overseeing. Explain that … do you have some evidence for that inquiry?

SENATOR MARK WARNER: Well, we do know that there was a series of Russian trolls, paid individuals, who worked for the Russian services that were trying to interfere and put fake news out. We also know they created what’s called bots. In effect, internet robots that actually could interfere as well.

WARNER: The question we have is: Did they somehow get information from some of the Trump campaign efforts to target that interference? We don’t know that for sure. But what we do want to know is — I’d like to talk to the folks with Cambridge Analytica. I’d like to talk to some of the folks from the Trump digital campaign.

WARNER: We do know as well that Facebook, for example, that denied any responsibility during our election, by the time the French elections took place this past spring, they literally took down 30,000 fake sites. So they have in effect got religion about the need to police fake news.

WARNER: We also know that Twitter — it’s been reported that literally 8% of the Twitter accounts are fake. So those accounts can be manipulated as well. I’d like not to re-litigate 2016. But I think the whole role of these social media platforms, in terms of disseminating fake news, is a policy question that we’re going to have to address.

According to the newly published book, “Fixing Post-Truth Politics:

After the November 2016 election, many people blamed Facebook for spreading partisan — and largely pro-Trump — fake news, such as Pope Francis’s alleged endorsement of Trump, or Hillary Clinton’s supposedly secret life-threatening illness. The company was criticized for prioritizing user “engagement,” meaning that its algorithms boosted juicy fake news over other kinds of stories. Those algorithms took on greater prominence after Facebook fired its small team of human beings who curated its “trending” news section in August 2016, following conservative complaints that it was biased against the right.

If you think it is problematic for the average news consumer to discern which news is fake and which is not is problematic, extrapolate that problem to some governmental enforcement agency tasked to decide what is fake news and what is not. News that is politically slanted is produced all day, every day by hundreds, if not thousands, of sources. Who is going to decide which stories get reviewed and which don’t? There is no way all stories can be subjected to review in a timely manner, nor should they.

The First Amendment of the U.S. Constitution says:

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.

Right-leaning and left-leaning media outlets both have their own version of “truth” by which they would swear, according to “Fixing Post-Truth Politics:”

The news consumers who don’t want to ponder which report is true and which one is false have instead opted for the selective exposure that is part of their human nature. In effect, if the report agrees with their personal line of thinking, it must be true. And if it doesn’t, it must be false …

… which has helped to lead us to the era of post-truth politics in America.

Throughout history, the primary redress for “fake news” has been civil lawsuits alleging libel, which is defined as “a published false statement that is damaging to a person’s reputation; a written defamation.” Someone bringing a lawsuit against a publisher must be able to prove that the published statement was false. A libel civil suit cannot be successful in court if the published statement is true, no matter how damaging.

If Warner’s idea gains traction, some governmental or quasi-governmental agency would face the same issues Facebook faced in August 2016: The nature of the stories flagged as false would certainly prompt complaints from people who believe there is some political bias involved.

Most importantly, an attempt to police the spread of “fake news” would be unconstitutional, violating the prohibition against abridging the freedom of speech, or of the press.

Because of this, the onus is — and will continue to be — on the news consumer to make intelligent choices regarding news consumption. According to “Fixing Post-Truth Politics:”

It’s more important than ever for news consumers to question every bit of news information, particularly political. Is the reporting organization a legitimate news organization? Is the information attributed to unnamed sources? Does the information make any sense? For example, does it make any sense at all for the Pope to endorse Donald Trump?

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