Are some news articles like acai berry fat-loss supplement offers? The answer could help determine whether U. S. elections can shed the weight of false information.
In an article published Monday by the New Jersey State Bar Association, MSNBC chief legal correspondent Ari Melber argues that the news is as much a product as a diet pill \u2014 and that the fake variety could be regulated by the Federal Trade Commission in the same way as phony claims about the belly-blasting power of a certain botanical.
It’s a complicated contention.
\u201cAbsent the existence of libel, Supreme Court precedents suggest that the First Amendment protects a citizen expressing lies or their version of fake news,\u201d conceded Melber, who has a law degree from Cornell. \u201cPolitical operatives have strong case law to defend deceptive assertions as protected speech, especially if they show that the lies are part of some wider expression, be it political, satirical or artistic.\u201d
However, Melber added, \u201cthe court has ruled that some commercial speech, like advertising or communication concerned solely with business, gets less First Amendment protection than political speech.\u201d
If the FTC and the court system could agree that fake news isn’t really a form of political discourse but is, instead, a kind of commercial offering in which \u201cthe political misinformation is the product,\u201d then perhaps the nation’s consumer-protection agency could stop some of it, he says.
In an interview, Melber zeroed in on fabricated articles concocted by foreign click-bait artists as one example of the kind of content he thinks could be regulated. For example: BuzzFeed reported in November on a bunch of teenagers in Macedonia who did not care about U. S. politics but discovered that making up stories about Donald Trump was a good way to draw traffic and, as a result, generate ad revenue.
\u201cA simple way to put it would be: If a site has even 10 percent political expression by Americans, the Supreme Court suggests it’s protected,\u201d Melber said. \u201cBut if a site is 100 percent Macedonian commerce and is fraudulently counterfeiting a protected American product, it may not have the protection of the First Amendment.\u201d
David C. Vladeck, former director of the FTC’s Bureau of Consumer Protection, said he shares Melber’s frustration with fake news but is skeptical that the agency could combat it in the way the MSNBC correspondent suggests. Vladeck noted that the FTC has shut down sites that masquerade as news while selling tangible products, such as those acai-berry supplements; he doubts that fake news itself could be considered a product, however \u2014 especially if people do not pay to read it.
\u201cThe FTC’s jurisdiction extends only to cases where someone is trying to sell something,\u201d said Vladeck, now a law professor at Georgetown. \u201cFake news stories that get circulated or planted or tweeted around are not trying to induce someone to purchase a product; they’re trying to induce someone to believe an idea. There are all sorts of First Amendment problems, apart from, I think, the insuperable jurisdiction problems, that the FTC would have.\u201d
Vladeck said he recognizes that some fake news sites are engaged in commerce, in the sense that they sell advertisements, but those ad sales are based on real web traffic.
\u201cThe deception doesn’t take place in the selling,\u201d he said. \u201cIt just takes place as a door opener to get people on the page.\u201d
As Vladeck sees it, false information is not the product; the product purchased by advertisers on fake news sites is exposure to the sites’ visitors. In that case, he said, \u201cthe deceptive claim doesn’t really relate to the product.\u201d
Melber, however, is optimistic that fake news websites’ commercial purposes could be enough to make at least some of them subject to FTC oversight.
\u201cI think it’s a worthwhile challenge to explore, rather than preemptively surrendering and saying, ‘Well, if we can’t stop all of it or some of it’s protected speech for good reason, then nobody should do anything about it,’ \u00a0\u00bb he said.<\/p>\n

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