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92 Tul. L. Rev. 497 (2017-2018)

handle is hein.journals/tulr92 and id is 529 raw text is: COMMENTS Fake News and the First Amendment: How False Political Speech Kills the Marketplace of Ideas Annie C. Hundley* I. INTRODUCTION. ............................... .......498 II. A HISTORY OF FAKE NEWS & A FAILED REGULATION ..............498 111. WHY THE LAW IS POWERLESS To STOP FAKE NEWS.................502 A. The First Amendment and Content-Based Political Speech. .................... ......503 B. The First Amendment and False Speech..... .....507 IV. AN ANALYSIS OF FALSE POLITICAL SPEECH ...... ...............512 A. Lower Courts Analyze False Political Speech Under Strict Scrutiny ..............................513 B. An Argument for Intermediate Scrutiny ..............515 C. An Argument for Survival Under Strict Scrutiny .........517 V. CONCLUSION ...........................................518 It could not be foreseen that a time would come when a partisan press would seek to mislead the people. It could not be foreseen that a time would come when whole columns of fake news would be published . . . when this man would be written up and this one down for personal gain. One did not realize that measures would be advocated on a purely commercial basis. That such things take place is shocking to our ideals of democracy. -Davenport Daily Republican, 18961 * 0 2017 Annie C. Hundley. J.D. candidate 2018, Tulane University Law School; B.A. 2011, Louisiana State University. I would like to thank Professor Catherine Hancock for her thoughtful feedback and boundless enthusiasm. I am also thankful for the dedicated staff and members of the Tulane Law Review for their endless efforts throughout the editing process. It has been an honor to work alongside all of you these past two years. I would also like to thank my parents, Jim and Cathy Hundley, for their unconditional support and wisdom throughout my life, especially during law school. It has meant the world to me. 1. The Press and Its Influence. Is Its Power Waning and Will the People Demand Lofiier Journalism?, DAVENPORT DAILY REPUBLICAN, Aug. 29, 1896, at 2. 497

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