Will the Roberts Court Defend Online Fake News?

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Authority of Law Statue, in front of Supreme Court building, Washington. Photo by Matt Wade via Flickr

How will the Roberts Supreme Court weigh in on the emerging debate over how to prevent the abuse of online media and social networks?

A forthcoming paper argues that, although the justices are now evenly divided between “technology optimists” and “technology pessimists,” they are likely to defend the principles of free speech against attempts to regulate content on the Internet.

Ashutosh Bhagwat, a law professor at the University of California Davis School of Law, bases his prediction on several recent rulings—although he notes that it is “astonishing” that Internet and free speech issues have rarely been addressed in the 12 years since Chief Justice John Roberts was appointed.

“It seems inevitable that going forward, this is going to change,” Bhagwat writes in an article scheduled for publication this month in the Washington University Law Review.

“Recent calls to regulate ‘fake news’ and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues.”

Basing his analysis on reviews of several cases brought before the Roberts Court, Bhagwat identifies Justices Roberts and Samuel Alito as the “pessimist” justices most in favor of stricter regulation; and Justices Anthony Kennedy, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan as those most aligned with defending free speech.

The remaining justices—Clarence Thomas, Stephen Breyer and Neil Gorsuch—are somewhere in the middle, he writes.

According to Bhagwat, the court’s future rulings on Internet issues can be gleaned from an analysis of several recent cases that touched on free speech and technology, most recently Brown v Entertainment Merchants Association (2011), and Packingham v. North Carolina (2017).

Packingham concerned a challenge to a North Carolina statute that forbade any registered sex offender from accessing a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.

The Court upheld the challenge, ruling the statute unconstitutional. Justice Kennedy, writing for the majority, held that First Amendment protections could be constitutionally extended to the “vast democratic forums of the Internet…and social media in particular.”

The Court’s decision in a non-Internet case, United States v. Alvarez, which upheld an individual’s right to make a false claim that he had received the congressional Medal of Honor, made clear that “even intentional falsehoods are entitled to some level of First Amendment protection, and there is no reason to expect that principle not to be extended” to cyberspace, Bhagwat wrote.

“Given the enormous risk of self-serving political manipulation or bias posed by government regulation of social media falsehoods on political topics, I would expect all the Justices to balk” at similar attempts to discipline the use of so-called fake news, he added.

Why Supreme Court Justices lean one way or another is uncertain, but Bhagwat argues the Roberts Court’s approach to free speech issues reflects the “longstanding tension in American political thinking between Jeffersonians who embrace change and individual autonomy at the cost of occasional disorder; and Hamiltonians, who embrace order at the cost of occasional limits on liberty.”

But the paper finds that more Justices lean in the direction of free speech and openness when it comes to regulating technology.

“I think it likely, but not certain, that a working majority of the Roberts Court will vote to fend off heavy-handed efforts to assert state control over new technology such as the Internet and social media,” he writes.

He cautions that for the “technology optimists” to succeed in future cases they only have to persuade one of the three “uncertain” Justices, whereas the technology pessimists would have to persuade all three.

Nevertheless, he adds, the most critical element in shaping how the Constitution is interpreted on these issues will be the regulatory initiatives emanating from Congress, the Federal Communications Commission (FCC), and state legislatures.

“If past history is any guide, content-neutral structural regulations such as the Net Neutrality policy adopted by the Obama-era FCC (and recently repealed by the Trump-era FCC) are likely to fare well in courts and the Court, especially given the existence of precedent, authored notably by Justice Kennedy, upholding similar structural regulations of cable television,” writes Bhagwat.

The full report can be downloaded here.

This summary was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.

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