Fake News and the First Amendment: How False Political Speech Kills the Marketplace of Ideas

Comment by Annie C. Hundley

In 1896, a man with his eye on the presidency lamented the state of the media and started his own newspaper to fight what he called “an epidemic of fake news.” He aimed to delegitimize the press while false stories spread throughout the country. Fake news was everywhere, making it often impossible to uncover the truth. If this story sounds familiar, it should.

This Comment discusses the modern era of fake news and why the law is unlikely to address its consequences. Part II explains how fake news has been a problem since the early republic and describes our Founding Fathers' unconstitutional attempt to regulate it. Part III describes the high level of protection free speech has historically been afforded in the political context and how falsity does not deprive a statement of its First Amendment protections. Part IV elaborates on the phenomenon of false political speech--intentionally, knowingly false news designed to influence an election--and how lower courts have afforded such speech the same protection they afford traditional political speech. This Comment presents potential ways in which false political speech might be constitutionally regulated to protect the sanctity of the democratic election process.

About the Author

J.D. candidate 2018, Tulane University Law School; B.A. 2011, Louisiana State University.


92 Tul. L. Rev. 497 (2017)