First Amendment Protection for Fake News?
A man was incited to fired a rifle inside Comet Ping Pong pizzeria in Washington December 4, 2016 after reading news articles linking said pizzeria to a child-sex traffic ring. The man stood down after discovering that the pizzeria did not engage in any form of child-abuse. The news articles that inspired this man’s vigilante justice were fake.
Fake news in America entered the national spotlight alongside Donald Trump’s presidential candidacy. President-elect Trump has made and continues to make various false allegations against Hillary Clinton, media networks, and anyone who speaks out against him in general. His lies stir up his constituents and in turn, they act.
The passion and emotion stirred by these false claims make fact checks useless as the truth falls to deaf ears. The oxford dictionary captures this trend by choosing “Post-truth” as 2016’s word of the year. Acting on a passion incited by lies, however, can be a dangerous activity as proved in Comet Ping Pong pizzeria.
An important question arises in light of these developments. How should we in the United States deal with false news drafted with the intent of inciting violence? Many would argue that “Freedom of Speech” is protected by the Bill of Rights. That statement is misleading; the protection provided by the constitution, initially, only applied to censorship from the federal government. The 14th Amendment, through a series of rulings in the 1920’s, extended protection of this freedom from to include censorship from state governments as well. Everything else is fair game.
The most common example is the phrase, “You can’t shout fire in a crowded theater.” A cliche now, but one drawn from the Supreme Court ruling of Schenck v. United States. This ruling, however, was overturned 1969 by Brandenburg v. Ohio. This Supreme Court case replaced the standard of prohibiting speech that meets the criteria of “clear and present danger” for speech that incites “imminent lawless action.”
How does anyone prove that false news works to incite immediate lawless action? This may be the most difficult question to answer, but a few places can be turned to for guidance. The Supreme Court case, Gompers v. Bucks Stove & Range Co. states that freedom of speech does not protect words that may have all the effect of force. In short, fighting words are not protected; hate speech is protected.
“Imminent lawless action” can also be interpreted as criminal activity. In criminal law, Mens Rea, guilty mind, is needed before a suspect can be pressed with charges. Mens Rea has two components: criminal action and criminal intent. Please note that criminal intent does not mean malicious intent. As a result, varying levels of Mens Rea exists:
1) Malice aforethought: This is when a person acts with prior intent to commit a crime.
2) Intentional: This is when a person intends to commit a crime, but developed the intent on the spot. There was no planning or preparation involved. Imagine getting really mad at a random stranger and then punching said person.
3) Knowing: This is when a person commits a crime without the intention of committing one. The person, however, should have known that those actions are considered illegal by the law.
4) Reckless disregard: This is when a person chooses to ignore the “substantial and unjustifiable risk” of the action and that it will result in crime or harm against another.
Common knowledge dictates that what people can say or do depends on the current era. As such, jokes or comments that were fine a few years ago are now grounds for suspicion. Hate crime is rising in the United States. As stated earlier, the First Amendment protects hate speech. The situation changes once hate speech incites violence. That is happening in America.
Fake news that spreads libel, that disparages people, or defames groups is published with reckless disregard of what emboldened readers might do. America should not protect such fake news and should hold creators of such news accountable for their actions. No one has the right to make others live in fear.