How the Federal Trade Commission could (maybe) crack down on fake news

Are some news articles like acai berry fat-loss supplement offers? The answer could help determine whether US elections can shed the weight of false information. In an article published by the New Jersey State Bar Association, MSNBC chief legal correspondent Ari Melber argues that the news is as much a product as a diet pill — and that the fake variety could be regulated by the Federal Trade Commission in the same way as phony claims about the belly-blasting power of a certain botanical.

It's a complicated contention. “Absent the existence of libel, Supreme Court precedents suggest that the First Amendment protects a citizen expressing lies or their version of fake news,” conceded Melber, who has a law degree from Cornell. “Political operatives have strong case law to defend deceptive assertions as protected speech, especially if they show that the lies are part of some wider expression, be it political, satirical or artistic.” However, Melber added, “the court has ruled that some commercial speech, like advertising or communication concerned solely with business, gets less First Amendment protection than political speech.” If the FTC and the court system could agree that fake news isn't really a form of political discourse but is, instead, a kind of commercial offering in which “the political misinformation is the product,” then perhaps the nation's consumer-protection agency could stop some of it, he says.