Should Publishing Fake News Be a Crime? - OZY | A Modern Media Company

Should Publishing Fake News Be a Crime?

Should Publishing Fake News Be a Crime?

By OZY Editors


Because the best medicine is simply speaking out.

By OZY Editors

OZY's electrifying TV show serves up provocative questions each week.OZY's electrifying TV show serves up provocative questions each week. We want to hear your thoughts:

Our question this week: Should publishing fake news be a crime? Email us or comment below with your thoughts.

Daniel Faltesek, author of Selling Social Media (Bloomsbury, 2018) and an assistant professor of social media in the School of Arts and Communication at Oregon State University, weighs in:

The traditional editorial structure of the media is collapsing. New technologies have democratized content production, distribution and advertising transaction facilitation. Disruption, a fine buzzword, means finding the minimally sufficient replacement product for something already on the market. When it comes to journalism, much of the public is willing to go with the lowest-level replacement possible. Purveyors of fake news are the villains of this melodrama, taking advantage of technical change.

The best argument against repressing the other side is that it does the opposite of what you think.

Daniel Faltesek

Criminally sanctioning these rogues should do the trick, especially if the punishment is heavy enough to stop them in their tracks, allowing the truth to prevail. Right? Sadly, that is not how communication works. Critiques of fake news often proceed with murky definitions of the term and overly simplistic theories of communication. Hastily turning to a solution of punishment will only make the problems with America’s public worse.  

Fake News Is Constitutionally Protected

The real question is not whether fake news is protected, but under what circumstances would fake news not be protected. Obscenity, certain forms of invasion of privacy and, in some narrow circumstances, defamation are not protected. The best argument against repressing the other side is that it does the opposite of what you think. Repressing your interlocutor does not change their perspective or persuade them — it makes them more intense.

Justice Brandeis’ concurrence in Whitney v. California is elegant and makes the case against state repression of speech through fear, noting that “… order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government …” Effective governance depends on continuous and difficult debate. Argument never ends. Drawing the line between true and false is difficult; some claims are obviously false, relying on entirely fake facts. In the case of easily disproven stories, there is no reason to risk liberty. More challenging are claims that come closer to the truth — these are more likely to persuade and have an impact. And even then, more communication, not less, is the best answer.


But what if the fake news is so powerful that people are blinded by ideology? If someone disagrees with you, they must be duped by the media. What if some of the arguments that are labeled fake news are not fake at all, but are arguments intended to frame values and aesthetics? Dismissing the expression of values, feelings and forms would backfire.

I call this the Loser’s Argument: If that other side would stop being so persuasive, people would agree with me. Typically, people deploying the Loser’s Argument are losing, and they know it. Arguers are looking for some external leverage to control the debate. Juries are known as fact-finders, not because they are clairvoyant truth machines, but because eventually facts are needed to move cases forward. Searching for some source of authority, in the case of prosecutions for fake news appealing to the courts and eventually the police, doubles down on the Loser’s position. 

The Right Tool for the Right Job

The contemporary use of fake news was intended as a critique of stories circulating before the election. These stories would have had the effect of supporting then-candidate Trump. President-elect Trump took a liking to the term, deploying it regularly. Instead of providing leverage against fake news, the term was easily deployed to run the other way. The same would be true of any attempt to contain fake news with the legal system. Once political prosecutions for fake news begin, they will likely end with the original advocates of prosecution before a jury. 

The best remedy for fake news is speech — specifically a renewed commitment to editorial discretion. Distributors of online content can check and possibly slow the spread of posts that are subject to rapid diffusion. Platforms are always already editing your feed. Facebook is deploying new technology to debunk fake claims, live. Online advertising platforms can require that content for remuneration reach certain quality standards before placing any advertisements. Google is already making headway in this area. 

Editorial judgment has an important role in the life of democracy, and is protected speech in itself. Quality standards go a long way. More judicious monitoring of distribution can blunt the impact of propaganda through debunking, delay or demonetization. The impact of propaganda is immediate, the only remedy is prevention, inoculation or treatment. The remaining fake news that is neither simple spam nor propaganda will be most effectively remedied by public debate. The underlying logic of free speech calls for the cultivation of reason and argumentative skill. Free speech requires strong editorial work. Justice Brandeis was right: Social judgment is better for democracy than judicial prescription. 

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