This Note examines the pervasive and evolving “fake news” problem. Specifically, it explores whether the United States government could pass legislation, modeled after a recently passed German law, regulating propagandistic social media posts. The answer to this question, in short, is no. By comparing the German Basic Law and the U.S. Constitution, this Note highlights the stringency of U.S. First Amendment protections and underscores the U.S. government’s inability to combat fake news through legislation. While this Note primarily focuses on the prevalence of fake news in the context of the 2016 U.S. presidential election, related developments and areas of research continue to emerge. Nevertheless, the underlying analysis and conclusions this Note sets forth can be applied to the 2020 U.S. presidential election as well as the local, state, and congressional elections that have since occurred. Indeed, 2020 has proven that the fake news problem remains omnipresent, and the government is still unable to regulate it.
The Cost of Free Speech: Combating Fake News or Upholding the First Amendment?,
75 U. MIA L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol75/iss2/7