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70 Fed. Comm. L.J. 55 (2018)
What If More Speech Is No Longer the Solution: First Amendment Theory Meets Fake News and the Filter Bubble

handle is hein.journals/fedcom70 and id is 67 raw text is: What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble Philip M. Napoli * TABLE OF CONTENTS I. INTRODUCTION ............................................................................ 57 II. COUNTERSPEECH AND THE FIRST AMENDMENT: ASSUMPTIONS, APPLICATIONS, AND CRITIQUES .................................................. 60 A. THE COUNTERSPEECH DOCTRINE IN PRACTICE ..................... 62 B. CRITIQUES OF COUNTERSPEECH ............................................ 66 III. How TECHNOLOGICAL CHANGES UNDERMINE THE COUNTERSPEECH D O CTRIN E ..................................................................................... 68 A. THE RELATIVE PROMINENCE OF TRUE VERSUS FALSE NEWS ...68 B. DIMINISHED GATEKEEPING AND DISTRIBUTION BARRIERS ....... 71 C. INCREASED ABILITY TO TARGET THE MOST IMPRESSIONABLE .74 D. THE DIMINISHED LIKELIHOOD OF BEING EXPOSED TO FACTUAL COUNTERSPEECH ................................................................... 77 E. THE DIMINISHED ABILITY TO DISTINGUISH BETWEEN LEGITIMATE AND FALSE NEWS .............................................. 79 F. THE ENHANCED SPEED AT WHICH FALSE NEWS CAN TRAVEL. 85 IV . IM PLICATIONS ............................................................................... 87 • James R. Shepley Professor of Public Policy, Sanford School of Public Policy, Duke University; Andrew Carnegie Fellow. An earlier version of this paper was presented at the 45th Research Conference on Communications, Information, and Internet Policy. The author gratefully acknowledges the research assistance of Petra Ronald and Anne Napoli. This publication was made possible by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author. -55 -

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