This Article analyzes calls for regulating so-called “fake news” through the lens of both traditional theories of free expression – namely, the marketplace of ideas and democratic self-governance – and two well-established First Amendment doctrines, strict scrutiny and underinclusivity. The Article argues there is, at first glance, a seeming disconnect between theory and doctrine when it comes to either censoring or safeguarding fake news. The Article contends, however, that a structural rights interpretation of the First Amendment offers a viable means of reconciling theory and doctrine. A structural rights approach focuses on the dangers of collective power in defining the truth, rather than on the benefits that messages provide to society or individuals. Ultimately, a structural rights conception illustrates why, at the level of free speech theory, the government must not censor fake news.
Clay Calvert, Stephanie McNeff, Austin Vining, and Sebastian Zarate, Fake News and the First Amendment: Reconciling a Disconnect Between Theory and Doctrine, 86 U. Cin. L. Rev. 99 (2018)