Brooklyn Law Review


Social media platforms are used daily by millions of Americans to connect with friends and family, shop from home, and stay attuned to current events. But the increasing ease and speed of accessing information on social media leaves its users exposed to misinformation, disinformation, and fake news that is designed to deceive. Because natural cognitive biases make individualized truth-filtering mechanisms unreliable, it is often difficult for the public to distinguish between fact and fiction. Widespread belief in viral fake news stories have caused serious and dangerous consequences to public health, safety, and democracy. However, because false speech remains categorically protected under the First Amendment, courts rely on the counter-speech doctrine as the remedy to harmful fake news rather than content regulation. Nevertheless, in the social media era where fundamentally false information often prevails over factual truths on the information marketplace, it becomes difficult to reconcile theory with reality. There is growing belief among scholars and legislators that a Section 230 amendment imposing civil liability on social media platforms would incentivize platforms to enforce stricter content moderation policies. This note suggests that such legislative action does not go far enough to meaningfully mitigate the foreseeable harm caused by viral fake news. Instead, this note directly challenges the current First Amendment doctrine that categorically protects false speech from regulation. While this note posits a judicial solution to the fake news problem; given the limitations that hinder swift judicial action, this note further posits that private businesses are well-positioned to take immediate preemptive action to fight fake news.