37 Pages Posted: 27 Jan 2017 Last revised: 6 Apr 2017
Date Written: March 31, 2017
Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.
Keywords: First Amendment, Social Media, Web 2.0, Free Press, Freedom of the Press, Free Speech, Fake News, New Media, Social Movements, Fourth Estate, News Media, Activist Journalism, False Information, Alternative Facts
Suggested Citation: Suggested Citation
Dorf, Michael C. and Tarrow, Sidney, Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism (March 31, 2017). Cornell Legal Studies Research Paper No. 17-02. Available at SSRN: https://ssrn.com/abstract=2906444