William & Mary Law Review


Alan K. Chen


Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identity formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, this Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking simultaneously to distinguish themselves through individualization or self-identification and to connect themselves through group association with a community of people with whom they share values. Understood in this way, this inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policy-making options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, this Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected.