Is Fake News Constitutional?

Is fake news constitutional? I believe the answer to this question depends on what the fake is news about to determine if it is protected by the First Amendment. If a fake news article slanders or defames another person, it is Constitutional to do so if the person being defamed is a public figure (well known – politician, sport star, Hollywood star etc.). This precedent was decided in New York Times v. Sullivan in 1964. On the other hand, if the person being defamed is a private citizen, this speech is not protected by the First Amendment. This precedent was decided in Gertz v. Robert Welch (1974). In Getz, the Court held there was a distinction between public and private persons: “Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” At the same time, the Court in Gertz held “all” false statements are problematic under the First Amendment: “But there is no constitutional value in false statements of fact.” Also “Under the First Amendment there is no such thing as a false idea.” But the Gertz majority opinion will then go on later to proclaim: “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” In the United States v. Alvarez (2012), the Court held that lying about receiving Military awards / medals is protected by the First Amendment. In 1952, Beauharnais v. Illinois the Court upheld a statute making it illegal to portray in any matter: “depravity, criminally, unchastely, or lack of virtue of a class of citizens of any race, color, or creed of religion”.

Then there is the question of fraud, if someone knowingly commits an act of fraud – this is not protected by the First Amendment. In Virginia Pharmacy Board v. Virginia Consumer Council (1976) the Court held “commercial speech” was protected similarly to “non-commercial speech” such as political speech. Commercial speech includes things such as corporate advertisements of any kind. However, commercial speech is not unlimited: “Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive and misleading.” So it may be hard to prove if someone writing fake news was intentionally writing false statements and committing fraud or just being “deceptive or misleading”. In Central Hudson Gas and Electric Corporation v. Public Service Commission (1980), the Court placed a four points in determining whether government legislation was constitutional regarding “commercial speech”: 1. “It must concern lawful activity and not be misleading”; 2. The government interest for the law must be “substantial”; 3. The legislation or regulation must “directly advance the government interest asserted”; and 4. The regulation cannot be “more extensive than is necessary to serve that government interest.” As Justice Thomas says in Lorillard Tobacco v. Reilly (2001) there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” If that is true, then both forms of speech can be held to “strict scrutiny”. Under strict scrutiny unless there is a compelling government interest, the speech is constitutional.

Since speech protected by the First Amendment varies depending upon the circumstance (non-commercial, commercial, public figures, or private figures), each case of fake news would have to be determined on a case by case basis. It seems fake news is expanding daily and covers a vast number of topics so the issue is not as simple as if fake news is constitutional. My guess is that a vast majority of fake news articles will be found constitutional while it is possible that a few may be found unconstitutional.