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.


Reader Comments

The First Word

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 2 Feb 2017 @ 11:18am

    Only 50% a Slave

    all must be approved by the ministry of truth for us to be safe... don't you want to be safe? It's a scary world and unless we control it people will be faced with reality.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 11:24am

    Obviously, Ari Melber is a fool.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 2 Feb 2017 @ 12:31pm

      Re:

      Or he is 'smart' and earning extra money on the side.

      But if that is the case, he isn't so 'smart' as he thinks. And what value and favor he accumulates may not be so safe as he thinks.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 2 Feb 2017 @ 11:24am

    oK

    These guys are responsible for TRUTH IN ADVERT???
    Let them do the JOB, with more people and resources..
    Otherwise THIS JOB will be done, JUST AS BAD..

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2017 @ 2:41pm

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 11:31am

    This is how America dies.

    reply to this | link to this | view in chronology ]

    • icon
      Berenerd (profile), 2 Feb 2017 @ 12:38pm

      Re:

      With thunderous applause.

      Honestly, I am just waiting for Canada to say enough is enough and finally invade.

      reply to this | link to this | view in chronology ]

      • icon
        Aaron Walkhouse (profile), 2 Feb 2017 @ 3:10pm

        That'll have to wait a bit…

        …as we're still working on buying our next batch of Super Hornets.

        Can you hang on for a couple more years? ‌ ‌ ;P

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Feb 2017 @ 4:50pm

        Re: Re:

        LOL. Canada? Invade? With what army? Care Bears, the Blue Jays, and Fruity Trudy's ladyboy refugees? Oh no, call in the National Guard! The Leaflets are coming, the Leaflets are coming -- and they're going to (gasp) HUG us to death! The selfie heard around the world...!

        reply to this | link to this | view in chronology ]

        • icon
          Aaron Walkhouse (profile), 16 Feb 2017 @ 8:21pm

          Never underestimate crazy Canucks.

          Six invasion attempts failed before we even had a country,
          then we went down there and burned the White House down.

          We have had you completely outnumbered one to ten ever since.
          Just ask any Special Forces member from any branch. ‌ ‌ ;P

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 11:38am

    Fake news is an intentional effort to spread false information in the guise of a factual news product... Perhaps ‘fraud news’ is the better label.

    How about "alternate news?" That way nobody gets confused about whether they are presenting facts, or "alternate facts."

    reply to this | link to this | view in chronology ]

  • icon
    Machin Shin (profile), 2 Feb 2017 @ 11:46am

    I'm sure there are a fair number of people in the government that really wish they had a law like this years ago.

    Just imagine how handy it would have been if they could have just deleted that horrible "fake news" about these documents leaked by some Snowden guy. I mean, all that was totally fake right?

    reply to this | link to this | view in chronology ]

  • identicon
    stosh, 2 Feb 2017 @ 11:59am

    You can ban "fake news" so long as I am the one that decides what is fake and what is not....

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 2 Feb 2017 @ 12:23pm

    Faker than Fake

    Who decides what is fake and what is not? Let's talk about Trump for instance...

    Did I make my point? Was it too fast?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2017 @ 12:44pm

      Re: Faker than Fake

      As they say, "It takes one to know one.".

      reply to this | link to this | view in chronology ]

    • icon
      GristleMissile (profile), 2 Feb 2017 @ 2:46pm

      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?

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

      It's a shame for all of us that they're learning it via hindsight.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Feb 2017 @ 2:56pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Feb 2017 @ 5:01pm

          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.

          reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 3 Feb 2017 @ 2:36am

        Re: Re: Faker than Fake

        This. And the fact that Trump is outright lying about a ton of things but it's ok to spread false info if you are The Motherfucking Eagle.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Feb 2017 @ 6:45am

        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?

        reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 2 Feb 2017 @ 12:24pm

    Best idea maybe?

    It's the Best idea if the goal is censorship.

    Having a government agency regulate journalism is a great first step.

    But I am perplexed why this would fall under the FTC? Can't Trump sign an executive order to create a newly formed Ministry of Truthiness?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 4:46am

      Re: Best idea maybe?

      "Having a government agency regulate journalism is a great first step"

      In a way they already do, indirectly via their overlords the corporate world of billionaires who just happen to own "the media".

      reply to this | link to this | view in chronology ]

  • icon
    sorrykb (profile), 2 Feb 2017 @ 12:39pm

    Bad Idea Or The Worst Idea?

    I'm hesitant now to label anything "The Worst Idea".
    Each new day brings something we earlier would have thought unimaginably bad.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 2 Feb 2017 @ 2:21pm

      Re: Bad Idea Or The Worst Idea?

      Each new day brings something we earlier would have thought unimaginably bad.

      Good point.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Feb 2017 @ 2:35pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Feb 2017 @ 3:29pm

          Re: Re: Re: Bad Idea Or The Worst Idea?

          I'll pitch in to buy you a new drying machine, because you're one seriously wet blanket.

          reply to this | link to this | view in chronology ]

        • icon
          Roger Strong (profile), 2 Feb 2017 @ 3:55pm

          Re: Re: Re: Bad Idea Or The Worst Idea?

          Don't forget Adam Sandler movies(still occurring)that has visited and still visiting many places.

          Seriously, the FTC plan would only affect the US. Slavery, famine and pestilence - even under Trump - are unlikely.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Feb 2017 @ 4:51am

          Re: Re: Re: Bad Idea Or The Worst Idea?

          But are slavery, famine, pestilence, and war the result of any one idea?

          I get the point, but ... aren't the above items the result of many bad ideas all at once? While famine & pestilence could occur naturally.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Feb 2017 @ 10:43am

          Re: Re: Re: Bad Idea Or The Worst Idea?

          I bet you've got a lot of housecats that you call friends.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 12:59pm

    People lie. More News at 6.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 1:09pm

    Who's going to regulate the news...

    if not the FTC? How else are we going to prevent disorder on the internet?
    /s

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 2 Feb 2017 @ 3:26pm

    Both sides of a real issue could be interpreted as fake news, even with impeccable citations. Under this plan America could replicate an old Soviet-era joke:

    Three condemned prisoners are discussing their fate:

    A: I'm here for supporting Blakowski.

    B: What? I'm here for opposing Blakowski!

    C: I'm Blakowski....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 5:51pm

    Let me guess ... penalty for violating the "do not insult donny" law will be both a fine and an extended stay in one of our fine private prison facilities.

    Double plus good

    reply to this | link to this | view in chronology ]

  • identicon
    My_Name_Here, 3 Feb 2017 @ 12:08am

    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.

    https://www.buzzfeed.com/craigsilverman/no-obama-did-not-pat-melanie-trump-on-the-butt

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Feb 2017 @ 4:03am

      Re: Fake news versus Trump Fake News

      However, you seem to believe that Techdirt's criticism of Shiva counts as slander. Why is that?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 4:09am

    And then we run into the problem of what happens it certain parts of the US secede.

    If the Republic Of Pacifica should succeed in their attempt to create a new nation out of Californa, Oregon, and Washington, the U.S. will have jurisdiction over websites and newspapers in Pacifica, as they would only have to follow Pacifican law.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 4:56am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Feb 2017 @ 6:53am

      Re:

      False equivalence.

      Yeah, bad things are done by all political parties - Duh! Your method of measurement is flawed if you think the outrageous Trump behavior and that of the chosen cabinet are anywhere similar to that of Obama.

      reply to this | link to this | view in chronology ]

    • icon
      sorrykb (profile), 3 Feb 2017 @ 9:10am

      Re:

      Now they seem to have lost there bearing and cannot see any good in anything that happens.

      Has something good happened?

      reply to this | link to this | view in chronology ]

  • icon
    ArkieGuy (profile), 3 Feb 2017 @ 6:26am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    DNY (profile), 3 Feb 2017 @ 8:08am

    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.)

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 3 Feb 2017 @ 8:20am

    Stories from The Onion occasionally get repeated as real news. Good luck separating satire from fake news in court.

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 3 Feb 2017 @ 8:45am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 10:40am

    I'm puzzled as to why anyone has difficulty spotting "fake news." I stopped following George Takei and Bette Midler on Facebook because both of them kept posting links to really stupid and clearly fake news stories.

    reply to this | link to this | view in chronology ]

  • icon
    timmaguire42 (profile), 3 Feb 2017 @ 11:10am

    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.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.