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Abstract
In the span of a few years, fake news slithered out from the recesses of the web to ultimately become one of the greatest threats to civil political discourse. This digital menace has capitalized on the consumer shift to online news consumption,-in particular, the increasing trend of news consumers migrating to social media sites. However, the incredible breadth of First Amendment restrictions, including broad protection for false political speech, significantly limits the viability of most potential statutory and regulatory solutions to fake news.
Another fundamental obstacle in the fight against fake news has been that even scholars cannot agree on a consistent definition for it. Fake news has a notoriously amorphous meaning, which creates significant confusion about what it actually is. To remedy this problem, this Article proposes a straightforward definition for fake news that accurately describes the phenomenon, specifically: (a) content holding itself out as a news piece (b) that makes objectively false assertions that given events have occurred (c) in a materially false manner.
Building off this definition, this Article proposes an objective falsity standard to identify fake news. This standard offers a flexible tool that scholars and courts can apply in a wide variety of contexts where fake news rears its ugly head. Lastly, this Article proposes statutory enhancements to the federal Communications Decency Act given its central role in society's defense against fake news. Without violating any First Amendment restrictions, the immunity that this statute grants to website providers allows them to wage the constant battle online against fake news.
Introduction
The 2016 U.S. election season has forever made the term "fake news" one that will live in political infamy.1 After Russia's 2016 campaign to spread fake news on a massive scale to influence the political climate in the United States and other countries, fake news has become a major concern for American citizens.2 It has also sown doubt in the integrity of the U.S. election system.3 While some fringe political activists and scammers have generated fake news for quite some time, the scope of the Russian fake news campaign in 2016 simply has no historic parallel.4 Those spreading fake news have weaponized the web's ability to spread information rapidly.5
For these reasons, the phenomenon of fake news will...