The Marketplace of Fake News

29 Pages Posted: 20 Mar 2018

Date Written: March 15, 2018


Fake news is a new name for an old problem. Disinformation, misinformation, hoaxes, conspiracy theories, and lies have long tried to influence public opinion. Fake news is enjoying another moment in the national discourse today because its proliferation on online social networks may have influenced a national election. Civil libertarians argue that fake news is part of the price we pay for a free society. It is part of the marketplace of ideas. In this essay, I argue that it is wrong to assume that fake news concerns ideas about which the public can debate. It doesn’t. Fake news does not concern ideas. It concerns facts. And the law treats ideas about facts and facts them-selves differently. So, too, does the marketplace of ideas analogy, which does not and was never meant to apply to basic facts. Therefore, I argue that the marketplace of ideas metaphor should not apply to fake news.

Keywords: fake news, social networks, first amendment, marketplace of ideas, holmes, brandeis

Suggested Citation

Waldman, Ari Ezra, The Marketplace of Fake News (March 15, 2018). University of Pennsylvania Journal of Constitutional Law, Vol. 20; NYLS Legal Studies Research Paper No. 3141373. Available at SSRN:

Ari Ezra Waldman (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212.431.2864 (Phone)

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