Bad Idea Or The Worst Idea? Having The FTC Regulate 'Fake News'

from the the-first-amendment-would-like-a-word-with-you dept

Over the last few months, we’ve talked about the weird obsession some people upset by the results of the election have had with the concept of “fake news.” We warned that focusing on “fake news” as a problem was not just silly and pointless, but that it would quickly morph into calls for censorship. And, even worse, that censorship power would be in the hands of whoever got to define what “fake news” was. Thus, it was little surprise to see China and Iran quickly start using “fake news” as an excuse to crack down on dissent online.

And, of course, just recently a pretty thorough study pointed out that “fake news” didn’t impact the election. It turns out that — just as we said — fake news didn’t really change anyone’s mind. It just served as confirmation bias.

Either way, there are still a bunch of people who are really focused on this idea of “fake news” and how it must be stopped. The latest to step in with a suggestion is MSNBC’s chief legal correspondent Ari Melber, who is suggesting that “fake news” can be regulated by the FTC in the same way that it goes after fraudulent advertisers who put up “fake” websites pretending to be impartial news sites talking up the wonders of acai berries or whatever. To be fair to Melber, his suggestion is carefully framed and includes many of the important caveats. This isn’t a piece that’s filled with the “you can’t yell fire” kind of tropes, but it’s still problematic.

You can read Melber’s whole piece, where he admits that the 1st Amendment is an issue, and that courts are very careful about it, but seems to think it’s no problem to stretch cases where the FTC goes after companies who are directly making stuff up to sell a product to cover situations where sites are making stuff up to get clicks or to sell a political candidate:

The FTC could develop a framework for pursuing fraud news about political propaganda, or work with Congress to define a framework consistent with the First Amendment.

The FTC’s recent actions against fraud news proprietors typically targeted a two-step practice: They posted misinformation about a product, then sold the product. In fraud news, however, the political misinformation is the product. And, it’s free.

We live in a world where most news consumers never purchase their news directly. They consume it online in exchange for viewing ads, or in exchange for providing their personal information (instead of money). An FTC framework for fraud news would treat these readers as ?consumers,? and target the websites for deceptive acts against them.

To follow First Amendment precedents, the framework could limit the FTC to only regulating posted articles?not seeking prior restraints against future articles?and to only regulate businesses devoted to fraud news.

This is… a bad idea. It’s one of those ideas that sounds clever for a few seconds until you actually start thinking about it. There’s also basically no way it passes 1st Amendment scrutiny. First of all, as a former FTC official told the Washington Post, this is pretty clearly outside the FTC’s jurisdiction:

?The FTC’s jurisdiction extends only to cases where someone is trying to sell something,? said Vladeck, now a law professor at Georgetown. ?Fake news stories that get circulated or planted or tweeted around are not trying to induce someone to purchase a product; they’re trying to induce someone to believe an idea. There are all sorts of First Amendment problems, apart from, I think, the insuperable jurisdiction problems, that the FTC would have.?

And, as always seems to be the case with “fake news,” there’s the whole “eye of the beholder” problem. That is, whoever gets to define what fake news is… can do an awful lot of damage. Our own President has now taken to calling CNN “fake news” — when it’s really just news he doesn’t like, or with a slant he doesn’t like. Do we really want to give the FTC — whose commissioners are appointed by the President — the power to take down news for being “fake?”

Melber seems to think there’s a way around that… but it’s a sleight of hand. He just stops calling it “fake news” and calls it “fraud news” instead. As if that solves everything:

Fake news is an intentional effort to spread false information in the guise of a factual news product. It does not refer to news one merely dislikes, or to false information erroneously published by a legitimate news outlet. (From newspapers to scientific journals, factual institutions do make mistakes. Even in error, their commitment to correction separates them from propagandists.)

To use a legal framework, fake news is essentially a scheme to trick the consumer?a fraud. Perhaps ?fraud news? is the better label.

Fine. So then Trump will just start calling news he doesn’t like “fraud news.” What difference does it make? Once you start down that slope it gets slippery pretty damn quick. To Melber’s credit, he doesn’t go nearly as far as the suggestions of others — such as this painfully silly argument from a few weeks ago that fake news shouldn’t get any First Amendment protections at all by shoving it into one area of unprotected speech: libel law.

Either way, all of these still boil down to the same basic idea: stories that are deemed fake are bad, and thus should be censored. The problem here, of course, is that no one actually bothers to determine if they’re really that bad, or really cause that much harm. And, also, all of this puts the onus on the government to fix the fact that some people deal in confirmation bias and believe things that aren’t true. Censoring “fake news” doesn’t solve that problem. It just creates yet another tool for censorship.

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Comments on “Bad Idea Or The Worst Idea? Having The FTC Regulate 'Fake News'”

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Anonymous Coward says:

Re: oK

like the FCC the FTC has NOT done its job and will likely never do it. AND like the vast majority of regulation it will just lead to capture in some form. Only need to grease the right palms and scratch the correct backs.

it really is funny how fast people switch their support for certain ideas based on which candidate is in power.

Anonymous Coward says:

Re: Re: Faker than Fake

“If so, I think the Democrats are learning the shit out of that lesson as we speak”

Talk about optimism. There is just exactly not a single fat chance that they are learning anything, just check out history.

The lesson being learned will not be great enough to prevent them from jumping at the chance to do it all over again when they get back into power, power will corrupt and they will not be resisting that power. George Washington spoke about this in his farewell address. He had the foreknowledge to see this coming and not one still regards his wisdom.

This applies to both parties, just just the democrats. I sit here now watching the Republicans hypocritically enjoying the very powers they complained about Obama exercising. Do you think the vengeful Democrats are going to forget? No they will just seek revenge!

Sit tight folks, we only go downhill.

Anonymous Coward says:

Re: Re: Re: Faker than Fake

The GOP would ban “fake news” critical of our overextended military adventurism and the global hegemony of the petrodollar. Iraq was totally awesome, you guys, and we totally won more wars than Tom Brady has thrown touchdowns! Anyone who says otherwise is a communist liberal spreading fake news.

The Dems would ban “fake news” that offends one of their increasingly shrill snowflake minority groups. Chicago is an idyllic paradise, you guys, and there are more gender identities than Colin Kaepernick has thrown touchdowns! Anyone who says otherwise is an alt-right fascist spreading fake news.

Reasonable people would ban them both for using their authority to silence real news in favor of biased stupidity.

But as the Soviets used to say, there is no news in the truth and there is no truth in the news. Up is down, war is peace, male is female, and we’ve always been at war with the patriarchy of Middle Eastasia.

Anonymous Coward says:

Re: Re: Faker than Fake

“Was your point that you should never let the government have a power that you wouldn’t want the other party to have?”

As if they care about the rule of law. Many words emerge from their faces but their actions are not in synch.

They ignore laws at will while enforcing others with vengeance. Perhaps bias has blurred your vision?

Anonymous Coward says:

Re: Re: Bad Idea Or The Worst Idea?

That’s real cute folks!

OP’s comment which IS funny… but has been modded insightful almost smacks of complete disrespect for shit like slavery (still occurring), famine(still occurring), pestilence(still occurring), and war(still occurring) that has visited and still visiting many places.

There is seriously not a damn thing that is insightful about that post.

My_Name_Here says:

Fake news versus Trump Fake News

I think one of the things you have to consider here is the difference between true fake news and what our Cheetoh president is on about.

Trump labels CNN “fake news” mostly because he doesn’t like what they say. He hates that they are doing to him and others what Fox and their ilk have done to Democrats for nearly two decades: Pile it on thick and heavy.

Trump’s problem is that CNN’s news isn’t “fake”, it’s all quite real. Their opinion pieces may not float your boat, but it’s hard to find CNN making shit up or photoshopping an image to create a story out of whole cloth.

Fake news is just that: made up shit in order to get traffic to a website, to virally pass an incorrect or misleading message about someone or something, or out and out slander and lies.

Fake news isn’t opinion. Rush Limbaugh and Rachel Maddow and all of those media commentator types are free to opine until the proverbial cows come home. That isn’t fake news, it’s slanted entertainment.

That’s a good example of fake news being outed. Plenty of places including Gateway Pundit ran it straight up as “news”. If the FTC isn’t the ones to slap them down, then someone needs to be.

Anonymous Coward says:

This site has become political garbage. Somehow when a left leaning guy does something, it is still Trump’s fault. When Trump does something that we find good (Cancelling TPP) Mike still attacks Trump for doing it for the wrong reason. With Obama the site was able to say this I agreed with and this I disagreed with. Now they seem to have lost there bearing and cannot see any good in anything that happens.

ArkieGuy (profile) says:

Confirmation bias

I agree that “fake news” isn’t going to change anyone’s opinion (or at most a few weak minded individuals). That doesn’t mean that it had NO impact on the election. While it doesn’t change opinion it concretes existing opinion (confirmation bias) and increases the likelihood that REAL facts that could have changed a persons vote will be disregarded.

DNY (profile) says:

Rather misses the point of freedom of the press

Having a government agency sit in judgement over what can or can’t be published rather misses the whole point of the First Amendment. Enough factual matters bearing on public policy are matters of controversy that giving a government board the power to suppress what it judges to be false is tantamount to creating a government censorship board. (As an example under the Trump administration, publishing “value added” climate data with imputed data in the polar regions and adjustments downward of past temperatures made on the basis that some new measurement technique gives different results, might be suppressed as “fake news”, while under the next Democrat administration publishing any raw climate data that doesn’t provide prima facia support for the notion of potentially-catastrophic anthropogenic greenhouse-gas induced global warming might be suppressed as “fake news”.)

And, of course, when “fake news” means people circulating parody articles mistakenly thinking them to be real news, how exactly is the FTC to deal with this? Obviously by banning parody! (It’s the only way to be sure.)

John85851 (profile) says:

You can't stop propaganda

“The FTC could develop a framework for pursuing fraud news about political propaganda…”
That sentence explains why the idea won’t go anywhere. What politician is going to vote to make propaganda illegal when they’re either using it now or will be using it in the future.

Even if fake news didn’t tilt the election, it’s still a good way to discredit an opponent.

timmaguire42 (profile) says:

Fake news is like occupational licensing or any other monoploy behavior–it’s the estabished media’s way of eliminating competition without improving the product.

It sounds nice, who could be FOR “fake news.” But it’s all about who gets to define it and who gets to enforce it. The recent incidents of blatant manipulation and sloppiness at the New York Times, The Washington Post, ABC, NBC, CNN, etc. are never going to be called fake news. But they all are.

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