The First Amendment protects fake news. Here’s another solution

In October 2019, Representative Alexandria Ocasio-Cortez questioned Mark Zuckerberg, founder, and CEO of Facebook, whether he would delete false information from his platform. He declined to answer. Since then, various political candidates launched deliberately inaccurate advertisements on Facebook in an attempt to be provocative, but to little effect. 

While these politicians sought to make a more significant point about the danger of lies on Facebook's platform, there is a global battle contending with this issue across the internet. Whether it's referred to as fake news or media mis-(or dis-)information, the global media space is saturated with cries to delete false content. 

But deleting these so-called lies becomes a slippery slope. The right to express different viewpoints, regardless of their veracity, is strongly protected in the United States' Constitution; these protections are more robust than anywhere else in the world and for a good reason. In the land of the free, the unwavering protection of freedom of speech has helped create a unique and successful system that balances peace, liberty, innovation, and government accountability.

The premise is that access to information in a free and open space builds "diversity of context" for societies to make better decisions, create greater trust in government, and ultimately create institutions that uphold peace. However, if incorrect or false information increasingly infiltrates these institutions, their trust-based nature leaves them vulnerable to exploitation. If it is dangerous to delete fake news, but also harmful to equate false and accurate information, it's time to redefine the problem.

The danger is not whether something is the truth or a lie; instead, it is about the accountability and transparency of communication. In the past, television studios, radio stations, newspaper editors, and book publishers covered the majority of mass-knowledge dissemination. Finding and reporting the truth, as best they knew, was crucial for their reputation in that small ecosystem. A strong reputation for truthfulness and reliability meant the right to be a continued authority in that information space. 

The Internet Age has fundamentally changed this phenomenon. Anyone can be a journalist or a knowledge producer in the internet age. Erasing accountability for information disseminators transfers the onus of informational integrity to consumers. Fact-checkers support consumers, but only if the consumer seeks the fact checker's specific website, limiting their impact. Furthermore, many of these sites often provide only for "true" or "false" classifications, which fail to convey the diversity of styles of information dissemination: satire, opinion, analysis, or event-based news. 

Consumers deserve more information about their media without censorship. Labeling something real or a lie is often subjective; the terms are too broad to cover the complexity of knowledge, viewpoints, and motivations in the technology age. Digital problems require digital solutions to uphold freedom of speech and expand the accountability of information. 

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Upholding the first amendment

The founding fathers enshrined freedom of speech into the Constitution in the First Amendment. These protections are more robust than anywhere else in the world, with truth and lies treated equally by the Constitution. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or the press."

Though not a universally exhaustive list, as the Supreme Court can continue to reinterpret the scope of protected speech, there are currently nine officially recognized exceptions to freedom of speech protections. The unprotected speech forms are as follows: obscenity, fighting words, defamation, child pornography, blackmail, incitement to lawless action, genuine threats, and solicitations to commit crimes.

The majority of these exceptions are straightforward. Obscenity refers to offensive, sexual speech, though not all sexual language or content is considered obscene. The inclusion of fighting words is intended to prevent public ridicule, and defamation includes libel and slander. What is conspicuously missing from this list is lies.

It is illegal to lie in certain circumstances. It is illegal to lie under oath, perjury, or to commit fraud, which is a lie intended to deceive someone to part with their money or possessions. It is also illegal to lie "within the jurisdiction of the executive, legislative, or judicial branch of the government." Or to lie about a "trick" or "scheme" or otherwise say untruths about your actions.

On the internet and in a news context, lying is not illegal. Forms of lying, like satire, have legal protections, which makes the issue of eliminating so-called "fake news" from the internet so complicated. 

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Why do lies even matter?

In November 2018, the Washington Post reported on Christopher Blair, a 46-year-old satirist who invented fake headlines to appeal to a far-right audience. Blair's posts went viral, earning him thousands of dollars in advertising revenue and a devout following both from those who admired his satire for comedic relief and those he was directly making fun of, who thought his headlines and news stories were real. 

His actions seem deliberately deceitful, and perhaps he is a textbook example of the type of "fake news" that ought to be regulated. However, Blair's website and stories included many disclaimers indicating the satirical nature of his work. Those caveats went unseen by millions who viewed and shared his stories as truth.

Despite Blair's disclaimers and, in some instances, the outright absurdity of some of his posts (labeling a photo of Donald Trump, Omarosa Newman, and Hope Hicks as Donald Trump, Michelle Obama, and Chelsea Clinton), a lack of standardization of disclaimers, again, burdens the consumer to find and verify the integrity. 

If both truth and untruth are protected speech, and traditional systems of accountability have been eroded, what are the risks to society? The answer lies in building a standardized, science-based classification system.

From mobile phones and computers to spacewalks and supply chains, every aspect of modern life is deeply dependent on careful scientific processes in the pursuit of high-precision, objective knowledge of reality. Allowing untruths to stand, persuading citizens to deviate from the scientific consensus that has built the modern world, can and will undermine the scientific advancements that created contemporary life and continues to fuel further development and prosperity. It is only fitting then, that the solution to this threat be found in the realm of science and technology.

Proposing a new solution: Using blockchain for media verification

The case of Blair highlights the two significant issues in the battle for truth and lies. First, it provides a perfect example of satire, where reality and lies become fungible commodities by design. Second, it demonstrates confusion or lack of interest from the consumer to identify whether a story is satire or event-based (reporting on verifiable events).

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Think of the labels for USDA Organic, or USDA Prime Beef, or a USDA Nutrition Information. They are familiar to every American. We see them on almost the same spot of every food item in any store across the country.

Though far from perfect, the USDA uses a scientifically based classification system to determine sugar and fat content. They print standardized labels on most types of food and drink in our society.

The labels are also permanent. Grocery store clerks can't reprint the nutrition label of Cocoa Puffs to make it appear healthier. Tags on online media should follow this model, updated in a digital context. 

Online media should, and can, work with a similar level of standardized transparency. Take, for example, the blue verification checkmarks on twitter. These "verified" stamps, create authenticity, transparency, and accountability to that person. What is said on a "verified" account is from that person. The blue checkmarks are public-personality gold and are so successful that Google is also entertaining adding verification stamps for public companies.

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Creating a standardized system for news verification could be even more valuable to consumers. If adopted by major platforms, it becomes a seal of quality for the piece of information, in direct contrast with media that anyone can create. It's worth noting that recently some verified accounts on Twitter were hacked, but because of the quality seal offered by the checkmarks, the damage was addressed immediately. Those stamps reintroduce accountability on which historic news relied.

The criteria for transparent news categories, event-based, satire, opinion, etc., would need to be outlined by a third-party. The stamps, to be most effective, would need to be placed on the same part of every media story, so consumers always know where to find it. 

The first step is to design stamps for news with a tamper-proof blockchain ledger. These stamps are labels that, just like USDA Organic, or the blue twitter checkmark, tell a reader whether the story they are reading is an opinion, satire, or based in real-time events (such as when the local news reports on a car accident). Blockchain technology is used as a digital record-keeping system that cannot be changed or deleted, so once the stamp is on the news story, it stays, no matter how far and widely the piece is shared. 

There is no precedent in the United States for deleting untruthful information from the internet for the sole reason of its factuality. Regulators and legislators need to be careful in making those requests of media companies, like Facebook because legal battles arising from the First Amendment are sure to follow. 

Instead, a media verification system can create greater transparency for consumers, not telling them what to think, but how to assess what they read is essential. The system would reinstitute a measure of accountability that naturally arose in traditional media, letting the best and most reliable information rise to the top in the marketplace of ideas. Eliminating untruths from the internet is a negative cycle that no agency or individual company could, or should, manage. We must uphold the principles of freedom of speech with modern, open, digital solutions, making society more accountable and free; transparency is critical.