Addressing Long-Term Problems With Our Free Speech Infrastructure Without Empowering The Autocrats (cross-posted at The Knight Institute website)
N.B. As readers may recall, I current serve on the steering committee of the Reconstructing Free Expression initiative of the Knight Institute. As part of our work, we are holding a number of day-long meetings with people from diverse relevant backgrounds to brainstorm both diagnosis and treatment. For these meetings, participants, including steering committee members, produce short think-pieces to jump-start our conversation. My salvo for the first convening appeared on the Knight Institute website and was cross-posted on this blog in February. Below you will find my essay for the second day-long meeting, which occurred two weeks ago. It can also be found on the Knight Institute website (with the title below).
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Support Local Journalism, Expand the Definition of Fraud, and Guard Against Boomerang Effects
(1) The Business Model Problem
A healthy information ecosystem requires actors who investigate and report on the activities of government officials and others—in a word, journalists. Beginning with the launch of Craigslist in 1995 and accelerating with the rise of advertising on Google and social media platforms, classified ads, which traditionally accounted for thirty percent of the revenue for local newspapers, dried up. Subscriptions also declined, as erstwhile readers turned to the internet for free alternative sources of (often unreliable) information. These and other factors hit local journalism the hardest, creating local “news deserts” that have been widening for two decades.
One partial response is public funding. And indeed, for a long time, that was an important piece of the puzzle, especially in rural areas, where funding from the Corporation for Public Broadcasting (CPB) accounted for a critical portion of local television and radio stations’ revenues—as high as 97 percent in one rural Alaskan community. However, Congress eliminated CPB funding in 2025, and with nothing in the till to distribute, earlier this year CPB’s board voted to dissolve itself.
If and when Congress and the administration change hands, it will be tempting to resurrect CPB or re-create something like it. I would not oppose such a move, but it carries risks. In stable constitutional democracies, publicly funded news services such as the British Broadcasting Corporation (BBC) and the Canadian Broadcasting Corporation (CBC) make a healthy contribution to public discourse, providing honest and nonpartisan news reporting. However, in the hands of an autocrat, government-funded news organizations typically serve as sources of propaganda.
Seen in this light, the elimination of CPB funding, while harmful, was not as harmful as one of the alternatives: continued funding but on condition that the recipients of government largesse toe the party line. Such moves can be and have been used even while the authoritarian regime purports to respect the independence of journalists. Examples from other countries readily come to mind, but so do domestic ones. When the Defense Department began exerting greater control over Stars and Stripes earlier this year, it claimed that the news organization would continue to “operate with editorial independence,” while it underwent a “modernization” under which it would no longer focus on “woke distractions.”
To be sure, it is probably easier for the government to exert control over a house organ like Stars and Stripes than over independent local television and radio stations, but only slightly. President Trump filed frivolous lawsuits against ABC News and CBS News but nonetheless obtained multi-million-dollar settlementsbecause they feared that his administration would otherwise withhold regulatory approvals vital to their business. He or a similarly autocratic successor would have little difficulty finding and using leverage over much smaller news organizations.
The upshot is not necessarily that a future, less autocratic, government should refrain from funding journalism. Rather, the point is that any such efforts should be undertaken cautiously, with eyes open to the risks. Lawmakers should consider mechanisms to mitigate those risks, such as independent funding streams not subject to presidential control. Finding such mechanisms will be difficult if, as widely expected, the Supreme Court invalidates nearly all independent federal agencies in Trump v. Slaughter. Reliance on state rather than federal funding would be one possibility.
(2) A New Kind of Fraud
The decline of local journalism is not the only adverse impact of the internet on our information ecosystem. It has also led to the spread of misinformation and disinformation. Any successful effort to combat that phenomenon would necessarily be multi-pronged. Here I would suggest one prong: expansion of liability for fraud.
In most U.S. jurisdictions, civil or criminal liability for fraud is established by showing a deliberately false representation that is intended to and does induce reliance by the listener, causing damage to the latter. In some statutes, there is also a requirement that the fraudster obtain money or some other thing of value from the person defrauded. Yet despite the fact that we take part in an “attention-based economy,” purveying mis- or disinformation in exchange for monetizable attention has not been regarded as a species of fraud.
A 2022 student Note proposed that the Federal Trade Commission (FTC) could regulate “fake news” as a species of fraud that falls within its existing statutory mandate. But whether spreading mis/disinformation would be regulated by the FTC, made the basis for civil liability via common law actions, or defined as criminal or tortious by a new state or federal criminal or civil statute, liability would be subject to First Amendment limits. “Simply labeling an action one for ‘fraud,’” the Supreme Court stated in a 2003 case, does not suffice to take it outside the protection of the First Amendment. That’s fair enough. However, deliberate mis/disinformation that aims at capturing the readily monetized commodity of attention bears sufficient similarity to conventional fraud as to fall outside First Amendment protection.
I do not have the space here to address any of the details that would be necessary to implement a conception of fraud capacious enough to cover mis/disinformation. For example, to hold platforms liable, some amendment to Section 230 of the Communications Decency Act might be required.
Nor can I ensure that liability for mis/disinformation would not be weaponized by the likes of Trump or his political allies, who frequently claim that truthful reportage that puts them in a negative light is “fake news.” But that risk would be worth taking if we concluded that the autocrats already have more potent tools at their disposal.
Defamation liability is arguably such a tool. For example, for FBI Director Kash Patel to prevail in his defamation lawsuit against The Atlantic, which ran a story describing him as engaged in “bouts of excessive drinking” and other irresponsible conduct, he would need to show that the reporters and/or writers for The Atlantic acted with reckless disregard for the truth. That is the high bar set by New York Times v. Sullivan, but it is still lower than the bar for fraud: intentional falsehoods. However, there are other elements to a successful defamation claim, not least that the statement at issue be damaging to the plaintiff’s reputation.
By contrast, liability for fraud for mis/disinformation about a potentially limitless number of subjects could open the door to many more claims than defamation law now permits. Accordingly, liability for mis/disinformation as a species of fraud should probably be limited to some discrete and especially dangerous subset of such mis/disinformation, such as AI-generated images, videos, and sounds passed off as real.
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-- Michael C. Dorf