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UIL LINCOLN-DOUGLAS DEBATE RESEARCH SERIES VOL. 23 SPRING 2018 NO. 2

RESOLVED: THE USE OF SOCIAL MEDIA AS A NEWS SOURCE UNDERMINES THE MARKETPLACE OF IDEAS. There can be little doubt that the motivation for choosing this topic is the controversy surrounding the phenomenon of “fake news” and its impact on the 2016 presidential election and beyond, but the topic invites discussion of numerous other issues as well. The growth of social media has been breathtaking over the past two decades. Julie Seaman, professor of law at the Emory University School of Law, describes this growth in a Winter 2016 article in the Arizona State Law Journal: “The Internet's takeover of the global communication landscape was almost instant in historical terms: it only communicated 1% of the information flowing through two-way telecommunications networks in the year 1993, already 51% by 2000, and more than 97% of the telecommunicated information by 2007. Facebook was created in 2004; it currently has 1.7 billion monthly active users. This sea change has transformed society and changed the way people think about and interact with the world and with each other. (p. 1013). The focus of the Spring 2018 topic, however, is more specifically on the news sharing function of social media. That function too has experienced dramatic growth. Joel Timmer, professor of digital media at TCU, reports on a survey indicating that 44% of U.S. adults now say they get their news from Facebook (Cardozo Arts & Entertainment Law Journal, 2017, p. 672). The question raised by the Spring 2018 topic is not precisely about whether this use of the social media as a news source is good or bad. More specifically, the topic asks whether such use is undermining the “marketplace of ideas.” The “marketplace of ideas” is usually associated with philosophical writings in the late Renaissance. But Nima Darouian, writing in the Cardozo Public Law, Policy, and Ethics Journal, claims that the notion actually started with the ancient Greeks: While the "marketplaces of ideas" theory is commonly attributed to John Milton and John Stuart Mill, the actual practice began with Socrates. It was in the Athenian Agora that Socrates would meet with people to debate ideas through a process of asking questions, and then questioning the answers, until a general agreement could be reached. The speech of Socrates in a literal marketplace of ideas was a speech that challenged the life of the community. It was Milton's Areopagitica (1644) and Mill's On Liberty (1869), however, that provided the theoretical predicate for the metaphor Justice Oliver Wendell Holmes introduced in his dissent in Abrams v. United States (1919): But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

ANALYSIS OF THE TOPIC As you will recall from The Value Debate Handbook, every proposition of value consists of two components: the object(s) of evaluation and the evaluative term. The object(s) of evaluation is that which is being evaluated or critiqued in the resolution. The evaluative term is the word or phrase in the resolution that is evaluative in nature. This resolution contains two objects of evaluation: “use of social media as a news source” and “the marketplace of ideas.” The evaluative term/phrase is “undermines.” Debaters should take note of the fact that the Spring 2018 resolution does not ask for an evaluation of whether the “marketplace of ideas” is a good or bad thing. The resolution does not call for an assessment of whether the “marketplace of ideas” is just or advances the common good; the question is whether the “marketplace of ideas” is undermined by the “use of the social media as a news source.” Accordingly, debaters are called upon to decide what kind of properties are contained in the “marketplace of ideas” and then debate about whether the “use of social media as a news source” undermines or supports those properties. What is meant by the term, “social media?” Debaters will be able to name numerous examples of the digital services that are commonly called “social media” – Facebook, Twitter, YouTube, Snapchat, Instagram, Flickr, etc. Arriving at a non-example-based definition of “social media” is a bit more difficult, but there is an official government definition that

2 can provide a starting place. Rachel Vanlendigham, writing in the October 2017 Cardozo Law Review, provides this definition: “The U.S. Department of Homeland Security defines social media as ‘web-based and mobile technologies that turn communication into an interactive dialogue in a variety of online fora.’ The technologies' architecture provides numerous benefits to their users: massive exposure to a large audience, anonymity, ease of publication both technically and in cost, and speedy content dissemination. The companies that maintain and provide such technologies, often referred to as social media platforms, consist of private corporations such as Facebook, Twitter, Snapchat, and Instagram; such services allow us to connect with family and friends and interesting events from around the world. Image and video sharing websites such as Flickr, Instagram, and YouTube are also considered as falling within the social media rubric” (LexisNexis Academic). The following paragraphs illustrate the effort of numerous authors to provide definitions of “social media” for the purpose of their own books or articles: Daniel Joyce, (Prof., Law, U. of New South Wales), Intercultural Human Rights Law Review, 2013, p. 233. In this article, I am primarily focused on the news-generative forms of digital media and the information networks of social media, such as Facebook and Twitter. But it would be a mistake to view 'social media' only in terms of certain platforms with current popularity. Social media can be seen as a dimension of new forms of digital media including "websites and applications that enable users to create and share content or to participate in social networking." The term 'new media' conveys a sense of the ability to broadcast in digital media beyond the traditional categories of radio, newspaper or television and to do so instantly and to a global audience 'online.' Amy Cattle, (JD), Duke Journal of Comparative & International Law, Winter 2016, at Note 3. The term "social media" as used throughout this Note will draw from the definition put forth by Hunsinger and Swift [in the Social Media Handbook], referring to "networked information services designed to support in-depth social interaction, community formation, collaborative opportunities and collaborative work." Michelle Zappavigna, (Postdoctoral Fellow, Linguistics, U. Sydney, Australia), Discourse Of Twitter and Social Media, 2012, 2. Social media is an umbrella term generally applied to web-based services that facilitate some form of social interaction or 'networking'. This includes websites where the design-principle behind the service is explicitly about allowing users to create and develop online relationships with 'friends' or 'followers'. The term also encompasses platforms where the focus is on generating and sharing content, but in a mode that allows comment and, potentially, collaboration. Sarah Joseph, (Prof., Law, Monash U.), Boston College International and Comparative Law Review, Winter 2012, 146. Social media is defined as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content." "Web 2.0" refers to Internet platforms that allow for interactive participation by users. What is the significance in the resolution of the phrase, “as a news source?” Social media serves many purposes, only one of which involves keeping up with current events. Other purposes, of course, include sharing personal or family pictures, describing the minutia of one’s daily activities, sharing a favorite recipe, or just keeping up with the activities of friends. The Merriam-Webster Dictionary defines “news” as “a report of recent events” or “previously unknown information” (https://www.merriam-webster.com/dictionary/news). The Longman Dictionary defines “news” as “information about something that has happened recently” (https://www.ldoceonline.com/dictionary/news). “Source” is defined by the Oxford-English Dictionary as “a place, person, or thing from which something originates or can be obtained” (https://en.oxforddictionaries.com/definition/source). While the contextual phrase, “news source” is very commonly used in the literature, finding a definition of the entire phrase is very difficult. There are numerous surveys attempting to measure the extent to which persons turn to social media as a source of news; the most prominent such survey is conducted annually by the Pew Research Center (http://www.journalism.org/2017/09/07/news-use-across- social-media-platforms-2017/). The 2017 survey concludes that “more than half (55%) of Americans ages 50 or older report getting news on social media sites. That is 10 percentage points higher than the 45% who said so in 2016. Those under 50, meanwhile, remain more likely than their elders to get news from these sites (78% do, unchanged from 2016).” Yet, surprisingly, the Pew Research Center survey does not define “news source;” instead, it simply asks the survey participants whether they use social media as a “news source.” The survey apparently presumes that the survey participants know what is meant by “news source.” Debaters will, most likely, rely on the dictionary definitions of the two words, “news” and “source.” The resulting definition of “news source” will, therefore, be quite broad: “information obtained about something that has recently happened.” What is meant by the verb, “undermines?” The Cambridge Dictionary defines “undermine” as “gradually weaken or destroy someone or something” (https://dictionary.cambridge.org/us/dictionary/english/undermine). The Longman Dictionary defines the word as “to gradually make someone or something less strong or effective” (https://www.ldoceonline.com/dictionary/undermine). The Macmillan Dictionary defines “undermine” as “to make something or someone become gradually less effective, confident, or successful” (https://www.macmillan dictionary.com/us/dictionary/american/undermine). The Merriam Webster Dictionary defines “undermines” as “to

3 weaken or ruin by degrees” (https://www.merriam-webster.com/dictionary/undermine). The Oxford English Dictionary defines “undermine” as to “lessen the effectiveness, power, or ability of, especially gradually or insidiously” (https://en.oxforddictionaries.com/definition/undermine). Putting all of these definitions together, the resolution is asking whether the “social media as a news source” makes the “marketplace of ideas” weaker or less effective. What is the “marketplace of ideas?” Derek Bambauer, a fellow at Harvard University’s Berkman Center for Internet and Society, offers the following explanation of this term: The marketplace of ideas grew from an Enlightenment belief in progress: in time, people would sort truth from falsehood, making government regulation of the information environment unnecessary and even pernicious. Beginning with John Milton and John Stuart Mill, the model's belief in the power of truth rests on critical assumptions and embodies core beliefs that influence how we regulate communication today. The marketplace of ideas model emerged from writings of Europe's Enlightenment thinkers such as John Milton and John Stuart Mill. Milton outlined the concept in Areopagitica, a protest against the English Parliament's order requiring material to be licensed before printing. Milton quoted Dionysius Alexandrinus, who, when accused of reading heretical works, received a divine vision saying, "Read any books whatever come to thy hands, for thou art sufficient both to judge aright and to examine each matter." Milton also adopted the argument that "all opinions, yea errors, known, read, and collated, are of main service and assistance toward the speedy attainment of what is truest." For Milton, banning injurious ideas only inhibited people from discovering their falsity. "Though all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength." (University of Colorado Law Review, Summer 2006, p. 651)

AFFIRMATIVE STRATEGIES A number of good strategies are available for affirmative debaters. The first strategy argues that the use of social media as a news source has facilitated the rise of “fake news,” thus undermining an essential tenet of the marketplace of idea. The marketplace of ideas places its faith in the ability of the public to discover truth and reject falsehood when all ideas are accepted in the public square. The recent experience with the 2016 Presidential election cycle demonstrated the inability of the average citizen to discriminate between fact and fiction. Journalism, as a profession, is dedicated to the use of the necessary tools to be used when determining whether a news story is factually truthful. When news is spread through social media without any filter, the tools of professional journalists are ignored. The result has not been encouraging. One recent example of the persistence of “fake news” has been called “pizzagate.” The story, as told repeatedly on social media sites, was that Comet Ping Pong, an actual pizza restaurant in Washington, D.C., was serving as a center for child sex slaves under the direction of Hillary Clinton. While such a story seems obviously false, it was given credibility by right wing media outlets such as Info Wars. Cecilia Kang, writing in the New York Times, describes the story of a Trump supporter who decided to go to the pizza restaurant to free the children: Edgar M. Welch, a 28-year-old father of two from Salisbury, N.C., recently read online that Comet Ping Pong, a pizza restaurant in northwest Washington, was harboring young children as sex slaves as part of a child-abuse ring led by Hillary Clinton. The articles making those allegations were widespread across the web, appearing on sites including Facebook and Twitter. Apparently concerned, Mr. Welch drove about six hours on Sunday from his home to Comet Ping Pong to see the situation for himself, according to court documents. Not long after arriving at the pizzeria, the police said, he fired from an assault-like AR-15 rifle. The police arrested him. They found a rifle and a handgun in the restaurant. No one was hurt. In an arraignment on Monday, a heavily tattooed Mr. Welch, wearing a white jumpsuit and shackles, was ordered held. According to the criminal complaint, he told the authorities that he was armed to help rescue children but that he surrendered peacefully after finding no evidence that ''children were being harbored in the restaurant.'' He was charged with four counts, including felony assault with a deadly weapon and carrying a gun without a license outside a home or business. Unbeknown to Mr. Welch, what he had been reading online were fake news articles about Comet Ping Pong, which have swollen in number over time. The false articles against the pizzeria began appearing on social networks and websites in late October, not long before the presidential election, with the restaurant identified as being the headquarters for a child-trafficking ring. (Dec. 6, 2016, p. A1) The marketplace of ideas model holds that truth will prevail so long as everyone is allowed to participate in the market. But pizzagate and numerous stories like it caste doubt on this model. An editorial in the Santa Fe New Mexican laments the ability of average citizens to distinguish between fact and fiction: The online story, sometimes known as "Pizzagate," is a concoction mixing Clinton, child abuse and pizza -- and it is not true. Yet this "fake news" created a buzz on Facebook and other social media

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outlets in the months before the presidential election. It's easy to think that no person with a modicum of intelligence could believe a tale as nonsensical and as twisted as Pizzagate. Edgar Welch did believe it, however. It appears that a not inconsequential number of Americans who use social media believed it, too. A poll last September found that 14 percent of Trump supporters believed the story (and 32 percent were "not sure" like Welch, who decided to investigate). The New York Times and The Washington Post had run articles that thoroughly debunked the spurious tale, but those responsible reports could not stop the lies from spreading. (Jan. 3, 2017, Nexis) The second affirmative case focuses on the problem of polarization. The American political landscape has experiencing a disturbing trend involving the loss of the political center; liberal politicians seem to have moved left while conservative politicians have moved further to the right. Governing becomes nearly impossible in the absence of a willingness to compromise. This second case argues that the use of social media as a news source is primarily to blame for this political polarization as it has created echo chambers. People who are politically active no longer participate in the same marketplace of ideas, but have instead decided to create their own marketplace shared only by persons who also share their political views. The creation of such echo chambers would never have been possible absent the use of social media. Sara Yeo, professor of communication at the University of Utah, describes this problem in the March 2015 issue of the Annals of the American Academy of Political and Social Science: The exposure of citizens to a diverse marketplace of ideas is beneficial to society. As consumers migrate from more traditional media to the Internet for information about science and technology, this fragmented online environment makes it difficult for citizens to experience cross-cutting information. Instead, it allows citizens to select information and cocoon themselves in "echo chambers". The consequences of these echo chambers are concerning; scholars point to polarization as the primary detrimental outcome. (p. 182) The final affirmative case focuses on the tendency of social media to promote hate speech. Social media sharing of news sources can hide behind a shield of anonymity, resulting in the loss of normal inhibitions in the sharing of information. John Stuart Mill and other theorists of the marketplace of ideas presumed a society where civil discussion would best lead toward truth. Instead, the anonymity of social media sharing has resulted in the promotion of hate speech. Johnny Holschuch describes this unfortunate result in the Spring 2014 issue of the University of Cincinnati Law Review: “Hate speech, furthermore, has permeated social media. Serious and repeated incidents of hate speech directed at individuals will undoubtedly occur, and can cause serious economic, psychological, and physical harm. The ability of individuals to communicate to thousands of individuals at once means that the psychological harm caused by insults is severe, the economic harm caused by lost clients and employers is substantial, and the possibility of physical harm caused by mob violence is real” (p. 962).

NEGATIVE STRATEGIES There are also a number of excellent strategies available to negative debaters on this topic. The first negative strategy focuses on the problem of concentration in traditional media outlets. Mergers and acquisitions among media companies have resulted in fewer and fewer voices speaking in the public sphere. Donald Simon discussed this problem in the Winter 2002 issue of the John Marshall Journal of Computer and Information Law: “In the past decade, there have been many media corporate unions, most notably Disney and Capital Cities/ABC, Viacom and CBS, and the largest media merger to date, America Online (AOL) and Time-Warner. These media mergers may make good sense economically, but what about their impact on news organizations? The First Amendment prohibits only government interference in the ‘marketplace of ideas;’ it says nothing, however, about potential domination of the marketplace of ideas by large media organizations. Although corporate control of the press has been a concern for more than a century, the recent media merger trend has re-ignited fears over the possible degradation of journalism by corporate interests. (p. 248). The use of social media as a news source provides an important corrective for this problem, as explained by Peter Maggiore in the Michigan Telecommunications and Technology Law Review: Social media may be the purest application of the "Marketplace of Ideas" theory. Social media takes the essential element of freedom of speech and provides a forum for expression with greater breadth and depth than ever before. Anyone with an Internet connection is able to register a free account with a social media provider, which then allows the user to express his thoughts and share his comments on any topic. Social media embraces several core Marketplace concepts: (1) the competition of ideas; (2) the public at large as the best provider of ideas; and (3) the value of exposure to contradictory points in the search for truth. (Spring 2012, p. 642) The second negative case focuses on the many benefits of the use of social media as a news source. These benefits include the creation of an alternative to state-control of the media in such places as Russia, China, the Middle East, and in the Palestinian territories. The social media also provide an essential source of news during times of emergency. Trevor Knoblich, project director for Frontline SMS Media, described the importance of this role in the 2014 book, Citizen Journalism: Global Perspectives:

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Many people have suggested both the "global" and hyperlocal nature of Twitter were useful. For example, following Hurricane Sandy, Choire Sicha, founder of New York City news site The Awl, was quoted in The New York Times' Media Decoder blog as saying, "Twitter was phenomenally useful microscopically—I was literally finding out information about how much flooding the Zone A block next to me was having, hour by hour—and macroscopically, too—I didn't even have to turn on the TV once the whole storm," he wrote. Citizens, then, can create an aggregate but still highly nuanced sense of ground-level realities in breaking news events. (p. 116) The social media have also performed a vital service in bringing accountability to police interactions with civilians. The creation of the Cop Watch system has produced a group of citizen journalism that changes the behavior of police in their interactions with inner city residents. The #MeToo Twitter campaign has also produced a tidal wave of change in the area of sexual harassment, holding even the most prominent members of our culture responsible for their behavior. Finally, this second negative case provides a variety of answers to the charges made in affirmative attacks on the role of the social media as a news source. Evidence found in this case will answer, among other things, the charge that social media circulates “fake news” stories. The final negative case focuses on the relationship of First Amendment freedom of speech to the marketplace of ideas, arguing that the use of social media as a news source offers a prime example of this important freedom. As Peter Maggiore, a JD Candidate at the University of Michigan Law School, writes: “Social media may be the purest application of the ‘Marketplace of Ideas’ theory. Social media takes the essential element of freedom of speech and provides a forum for expression with greater breadth and depth than ever before. Anyone with an Internet connection is able to register a free account with a social media provider, which then allows the user to express his thoughts and share his comments on any topic. Social media embraces several core Marketplace concepts: (1) the competition of ideas; (2) the public at large as the best provider of ideas; and (3) the value of exposure to contradictory points in the search for truth” (Michigan Telecommunications and Technology Law Review, Spring 2012, p. 642).

A FEW WORDS ABOUT THE PROPER USE OF BAYLOR BRIEFS IN LD DEBATE The affirmative and negative cases in Lincoln-Douglas debate must be presented in only a few minutes. Since there is an emphasis in UIL LD debate on persuasive delivery, you would never want to try to speak more rapidly in order to pack more arguments or quotations into the few minutes available in your speeches. Most successful UIL LD debaters won’t use more than ten or twelve short quotations in the whole debate. Most of the briefs offered in our UIL LD Debate Research Series are much longer – and present much more evidence – than could ever be presented in a single debate. You should consider each brief as a resource and cafeteria of possibilities. Rarely in UIL LD debate would you ever read more than one or two short pieces of evidence under each heading. In addition, debaters typically underline just the portion of a piece of evidence that they will read in their speech – hopefully the part of the evidence that makes the point most clearly. This is an acceptable practice under UIL rules of evidence so long as the debater has the whole piece of evidence available for viewing (upon request) by the other debater and/or the judge(s). Why does Baylor Briefs, then, sometimes provide several long pieces of evidence? We want to give you choices, to show you the whole context of the evidence, and also to make backup evidence available to you. You should make the arguments your own by choosing only the arguments and evidence that makes the most sense to you.

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AFFIRMATIVE CASE #1: FAKE NEWS The thesis of this case is that that “fake news” undermines the marketplace of ideas. The marketplace of ideas is built around the principle that truth will ultimately prevail when all information is equally welcomed into the public sphere. That central organizing principle of the marketplace of ideas metaphor has been shown to be false because of the use of social media as a news source. The events surrounding the 2016 Presidential election in the United States have demonstrated that “fake news,” facilitated uniquely by the use of social media, disproves – and thereby undermines -- the central organizing principle of the marketplace of ideas. Contrary to the assumption made in the marketplace of ideas metaphor, truth does not ultimately prevail when factually untrue news items are welcomed into the public square. Elections in Europe and elsewhere have similarly demonstrated the folly of allowing the free flow of false facts. Negative debaters will likely point out that Facebook and other social media outlets are now taking steps to eliminate “fake news” from their services, but this action merely proves the point that improperly filtered news sources undermine the marketplace of ideas. It turns out that the standards of traditional journalism are essential to preserving the marketplace of ideas – the marketplace is undermined in the absence of such filters. OBSERVATION: I. THE MARKETPLACE OF IDEAS IS BEST UNDERSTOOD AS A MEANS FOR DETERMINING TRUTH. A. THE ULTIMATE OBJECTIVE OF THE MARKETPLACE OF IDEAS MODEL IS TO FIND “TRUTH.” Daniel Ho, (Prof., Law, U. Virginia School of Law), NEW YORK UNIVERSITY LAW REVIEW, Oct. 2015, 1171. A different way to understand the marketplace is as truth-locating (in the Millian sense). Rather than thinking of truth as the causal (or explanatory/independent) variable, the marketplace of ideas principle may be contemplating truth as the outcome (or dependent variable): i.e., the likelihood that society arrives at the truth. B. THE MARKETPLACE MODEL HOLDS THAT UNFILTERED ACCESS TO INFORMATION OFFERS THE BEST ROUTE TO THE TRUTH. Derek Bambauer, (Fellow, Berkman Center for Internet & Society, Harvard Law School), UNIVERSITY OF COLORADO LAW REVIEW, Summer 2006, 653. Thus, the marketplace of ideas model has four core beliefs. First, people evaluate information such that, over time, we distinguish truth from falsehood. Second, having more information is better, since it increases our choices and reduces the risk that useful data will not be available. Third, governmental limits on communication are inherently suspect because they restrict the flow of competitive products into the marketplace and undercut valuable self-expression. Finally, state regulation to excise "bad" information is unnecessary. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 632. The Marketplace theory's origins can trace as far back as John Milton, Enlightenment thinkers like John Locke and Adam Smith, and judicial opinions on free speech theory by influential jurists like Chief Justice Holmes. Holmes' analysis is of particular relevance. He argued that the Marketplace theory underlies the principles of freedom of speech in the First Amendment. He felt that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." This theory is what we commonly refer to as the "Marketplace of Ideas." It is a theory that "truth will most likely surface when all opinions may freely be expressed, when there is an open and unregulated market for the trade in ideas." C. THE MARKETPLACE MODEL HOLDS THAT THE “TRUTH WILL OUT” – THAT THE PUBLIC ACCEPTANCE BEST DETERMINES WHAT IS TRUE. Daniel Ho, (Prof., Law, U. Virginia School of Law), NEW YORK UNIVERSITY LAW REVIEW, Oct. 2015, 1161. Oliver Wendell Holmes's notion of the marketplace of ideas - that the best test of truth is the power of an idea to get itself accepted in the competition of the market - is a central idea in free speech thought. Leonard Niehoff, (Prof., Law, U. Michigan Law School), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 244. The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts to compete with each other for acceptance. The theory maintains that the best ideas and the most reliable information will emerge and prevail. The well-informed electorate that results from this process will then make better decisions in our participatory democracy.

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Leonard Niehoff, (Prof., Law, U. Michigan Law School), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 250. This model so influences our thinking that we have come to rely heavily, even if not always consciously, upon the process it describes to correct the false facts and "noxious doctrines" that are circulated in the public sphere. "The fitting remedy for evil counsels is good ones" and the best way to address bad speech is through "more speech," Justice Brandeis declared in Whitney, and the marketplace of ideas model assures us that this has it right. "At the length truth will out," Shakespeare tells us, and we like to think it so. CONTENTIONS: I. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE HAS FACILITATED THE RISE OF “FAKE NEWS.” A. FAKE NEWS REFERS TO NEWS STORIES BASED ON TOTAL FALSEHOODS. Bert Roughton, (Staff), THE ATLANTA JOURNAL-CONSTITUTION, Dec. 18, 2016, 23A. Slate's definition of fake news is illuminating. They mean "stories that are designed to look like news articles but whose key 'facts' have been invented by their authors -- and persuasively debunked by reputable sources." Slate excludes "propaganda, bias, and misleading headlines are all issues worthy of attention in a broader examination of the media" or "factual errors that established media organizations routinely make in the course of their work, whether through honest error or negligence. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 671. The term "fake news" in this context describes false stories about political candidates or issues that are spread through social media sites such as Facebook. B. FAKE NEWS IS MORE POPULAR ON SOCIAL MEDIA THAN REAL NEWS. David Zurawik, (Staff), BALTIMORE SUN, Nov. 20, 2016, E1. A BuzzFeed analysis published Wednesday found that fake news was more popular than real news on Facebook down the homestretch of the election. During the last three months of the campaign, the most popular fake election stories on Facebook generated more engagement than the top stories from such legitimate news websites as those of The New York Times, The Washington Post, NBC News and others. Elizabeth Hernandez, (Staff), BOULDER DAILY CAMERA, June 18, 2017. Retrieved Dec. 15, 2017 from Nexis. To the detriment of reality and facts, fake news outlets had around twice as much influence on the media landscape as fact-checking websites from 2014 to 2016, according to a new study co-authored by a University of Colorado researcher. Fake news websites -- sites that look credible but are not actually real media organizations, according to assistant professor Chris Vargo of CU's College of Media, Communication and Information -- outpaced fact-checking sites like Politifact and Snopes, both in terms of articles produced each month and their influence on the broader media agenda during the study's two- year timeline. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 673. According to a BuzzFeed News study, fake news stories generated more user activity than actual news stories on Facebook in the months leading up to the 2016 election: "In the final three months of the US presidential campaign, the top-performing fake election news stories on Facebook generated more engagement than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News, and others." During that time period, the "20 top-performing false election stories from hoax sites and hyperpartisan blogs generated 8,711,000 shares, reactions, and comments on Facebook," more than the "20 best-performing election stories from 19 major news websites, which generated a total of 7,367,000 shares, reactions, and comments on Facebook." John Herrman, (Staff), THE NEW YORK TIMES, Nov. 19, 2016, B1. False news stories posted on fly-by-night websites were prevalent in this election. So, too, were widely shared political videos -- some styled as newscasts -- containing outright falsehoods, newslike image memes posted by individuals and shared by millions, and endlessly shared quotes and video clips of the candidates themselves repeating falsehoods.

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C. SOCIAL MEDIA POLICIES PROMOTE FAKE NEWS. NEW YORK TIMES, Nov. 20, 2016, SR10. Most of the fake news stories are produced by scammers looking to make a quick buck. The vast majority of them take far-right positions. But a big part of the responsibility for this scourge rests with internet companies like Facebook and Google, which have made it possible for fake news to be shared nearly instantly with millions of users and have been slow to block it from their sites. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 674. BuzzFeed's analysis revealed that "many of the pro-Trump fake news sites - over 100 of them - were being operated as for-profit click-farms by Macedonian teenagers," who were apparently "motivated by the advertising dollars they could accrue if their stories went viral." As it turns out, fake news site owners "can make thousands of dollars per month through internet ads" when Facebook users click on links that take them to third-party fake news story sites. One Los Angeles-based fake news site brought in "between $ 10,000 and $ 30,000 a month," while a "computer science student in the former Soviet republic of Georgia [said] that creating a new website and filling it with both real stories and fake news that flattered Trump was a "gold mine.'" Bert Roughton, (Staff), THE ATLANTA JOURNAL-CONSTITUTION, Dec. 18, 2016, 23A. Lying online has become a growth industry with few barriers to entry. A group of Macedonian teenagers famously made a tidy sum this year by operating a fake news factory spinning out scores of fake elections stories. We now have a Lying Industrial Complex. The hungry audience is growing. During this election year, 44 percent of American adults said they relied on Facebook for their news. MERCURY NEWS, Dec. 15, 2016. Retrieved Dec. 15, 2017 from Nexis. Publishers of fake news websites make money from ads that run on them, and that revenue is a driving cause of the recent fake-news explosion, Media Matters said. D. FAKE NEWS LIKELY IMPACTED THE U.S. ELECTION IN 2016. Neil Irwin, (Staff), NEW YORK TIMES, Jan. 26, 2017, A3. Think of untrue claims like the Trump endorsement by Pope Francis or the investigation of the Clinton Foundation for running a pedophile sex ring. In the immediate aftermath of the election, there was even some speculation that these types of stories were enough to swing the result toward Donald J. Trump. Sundar Pichai, the chief executive of Google, raised that possibility, and one author of made-up viral news told The Washington Post that ''I think Donald Trump is in the White House because of me.'' Ronald Orol, (Staff), THE DEAL PIPELINE, June 1, 2017. Retrieved Dec. 15, 2017 from Nexis. "Research has shown that fake news has affected elections in the U.K., France and the U.S.," said Natasha Lamb, a managing partner at Arjuna Capital, the fund issuing the proposal, at the company's annual meeting. "Fake news is not about spin or confirmation bias, it's about fabrication, and when fabrication is disseminated so easily at scale, it represents a threat to our democracy." Jason Horowitz, (Staff), THE NEW YORK TIMES, Dec. 3, 2016, A8. Analysts in the United States have suggested that Moscow injected fake news into social media sites there as a powerful weapon to influence the November election, including bogus reports that may have helped hand Donald J. Trump the presidency. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 675. A former employee in Facebook's advertising sales department, Antonio Garcia Martinez, labeled Zuckerberg's view as hypocritical: "It's crazy that Zuckerberg says there's no way Facebook can influence the election when there's a whole sales force in Washington DC that does nothing but convince advertisers that they can," said Garcia Martinez. According to Garcia Martinez, Facebook's sales people "literally go and tell political advertisers, "look, Facebook is the most influential platform in the world. We will win you an election.'" In fact, he added, "we used to joke that we could sell the whole election to the highest bidder." E. FAKE NEWS IMPACTS ELECTIONS THROUGHOUT EUROPE AND BEYOND. Jason Horowitz, (Staff), THE NEW YORK TIMES, Dec. 3, 2016, A8. Anxiety about bogus news reports is rising in Europe, as Prime Minister Matteo Renzi of Italy and others express concern that fake news circulated over social media may influence elections on the Continent, including a critical referendum in Italy on Sunday.

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Jason Horowitz, (Staff), THE NEW YORK TIMES, Dec. 2, 2016. Retrieved Dec. 15, 2017 from Nexis. Anxiety about bogus news reports is rising in Europe, as Prime Minister Matteo Renzi of Italy and others express concern that fake news circulated over social media may influence elections on the Continent, including a critical referendum in Italy on Sunday. The outcome of the Italian vote, which could determine the fate of Mr. Renzi's government, may also affect the stability of European financial markets and further weaken the moorings of the European Union. Leaders on both sides of the Atlantic are trying to determine whether political parties are using social media platforms to deliberately disseminate propaganda, and whether there are connections to the agendas of outside powers, including Russia. F. TWITTER FACILITATES THE PRESIDENT’S USE OF FAKE NEWS. Leonard Niehoff, (Prof., Law, U. Michigan Law School), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 244. But a large number of Trump's false statements were more worrisome because they related to racial, ethnic, religious and other minority groups. For example, Trump falsely claimed the Black youth unemployment rate was at 59 percent at a time when the Bureau of Labor Statistics put it at 27.1 percent. In August of 2016, Trump tweeted that "inner-city crime is reaching record levels." In fact, data from the Federal Bureau of Investigation ("FBI") shows that violent crime is at its lowest rate since 1995, and that it would take many years of "significant increases" to return to the record levels of crime in the early 1990s. Trump falsely tweeted that Blacks killed 81% of White homicide victims in 2015, relying on a non-existent statistic from a non-existent organization. FBI statistics show that in fact only 15% of White homicide victims were killed by Blacks in 2014. In these instances, Trump plainly misstated objective facts that played into extant stereotypes. Leonard Niehoff, (Prof., Law, U. Michigan Law School), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 245-246. Political fact-checking organizations and the mainstream media reported extensively on Trump's false statements of fact and unsubstantiated generalizations. And they noted that he made such statements in staggering proportions. For example, by April of 2017, Politifact assessed 20% of Trump's statements as mostly false, 33% as false, and 16% as what it called "pants on fire" false - cumulatively suggesting that the vast majority of the time Trump was making either false or significantly misleading statements to the public. II. FAKE NEWS IS SIGNIFICANTLY HARMFUL. A. FAKE NEWS UNDERMINES DEMOCRACY. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 74. The ease with which fake news, misinformation, and false allegations spread like wildfire is now a disturbing hallmark of modern politics. Vice President Al Gore once celebrated the internet as the "information superhighway," but instead of becoming a powerful instrument for the dissemination of facts, the internet has confused and misled Americans as much as it has informed them. The implications for election administration and American democracy are deeply troubling. In the internet age, even an election with no evidence of improprieties or significant tabulation errors can be inundated with false claims of voter fraud. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 69. Third, fabricated news reports did more than just cast false aspersions on the candidates. During the 2016 campaign, fake news stories spread baseless fears about the integrity of the election results. For example, six weeks before Election Day, a Republican legislative aide in Maryland named Cameron Harris created a fake internet newspaper in order to circulate a completely fabricated story that Ohio Democrats had been caught in a criminal conspiracy to commit election fraud. Under the headline "BREAKING: "Tens of thousands' of fraudulent Clinton votes found in Ohio warehouse," the Republican aide's fake news story alleged that "the Clinton campaign's likely goal was to slip the fake ballot boxes in with the real ballot boxes when they went to official election judges on November 8th." The fake news story even included a picture of a man standing behind dozens of ballot boxes, which the story falsely claimed showed the Ohio "electrical worker" who discovered the boxes. In fact, the picture actually showed a British campaign worker during an election in the United Kingdom. Nevertheless, the fake news story was so widely disseminated that more than 6 million people shared the story on the internet and Ohio election authorities found themselves forced to launched an investigation into the allegations.

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B. FAKE NEWS ERODES THE SOCIAL FABRIC. Jeff Glor, (Staff, CBS News), SOCIAL MEDIA RIPPING APART SOCIETY, Dec. 12, 2017. Retrieved Dec. 12, 2017 from https://www.cbsnews.com/news/chamath-palihapitiya-former-facebook-executive-social- media-ripping-apart-society/. A former Facebook executive criticized the company he once worked for and social media as a whole, saying it is "ripping apart the social fabric" in societies around the world, CBS San Francisco reports. Chamath Palihapitiya, who previously served as Facebook's vice president for user growth, expressed "tremendous guilt" and urged people to take a "hard break" from social media during a talk at the Stanford Graduate School of Business. "I think we have created tools that are ripping apart the social fabric of how society works," said Palihapitiya, who left the social media giant in 2011 and now heads The Social+Capital Partnership, a venture capital fund. "No civil discourse, no cooperation; misinformation, mistruth," he went on to say. Charlie Wood, (Staff), CHRISTIAN SCIENCE MONITOR, Feb. 11, 2017. Retrieved Dec. 12, 2017 from Nexis. Apple's chief executive officer Tim Cook recently said that fake news is "killing people's minds," perhaps signaling Apple's intention to enter the fray alongside the likes of Facebook and the governments of Ukraine and Germany. C. FAKE NEWS PROMOTES DISTRUST OF ALL NEWS. Kitson Jazynka, (Staff), THE WASHINGTON POST, Apr. 9, 2017, A25. "The greatest danger for college students and even for non-college students," [Howard Schneider, executive director of Stony Brook University’s Center for News Literacy] says, "is not that they will be fooled by fake news, but that they are beginning to doubt real news." DAYTON DAILY NEWS, Oct. 3, 2017, SC1. While they once feared teenagers would fall for everything they read online, now teachers are increasingly concerned that their students will grow up not believing anything they read - or worse, believing the difference between what's real and what's fake is a matter of choice. D. THE SOLUTIONS OFFERED BY FACEBOOK ARE INADEQUATE – THE PROBLEMS EXTEND TO ALL SOCIAL MEDIA – FAKE NEWS WILL JUST MOVE TO THE NEXT PLATFORM. Mike Isaac, (Staff), THE NEW YORK TIMES, Dec. 16, 2016, B1. What impact Facebook's moves will have on fake news is unclear. The issue is not confined to the social network, with a vast ecosystem of false news creators who thrive on online advertising and who can use other social media and search engines to propagate their work. Google, Twitter and message boards like 4chan and Reddit have all been criticized for being part of that chain. III. THE MARKETPLACE OF IDEAS MODEL IS UNDERMINED WHEN FALSE FACTS ARE WELCOME IN THE PUBLIC SQUARE. A. FAKE NEWS IS NOT CORRECTED AS THE MARKETPLACE MODEL PREDICTS. Weston Williams, (Staff), THE CHRISTIAN SCIENCE MONITOR, Mar. 6, 2017. Retrieved Dec. 15, 2017 from Nexis. These "echo chambers" of opinion and confirmation bias are nothing new, but the increasing politicization of fake news has only made the problem worse. Before the election, most fake news was aimed toward conservative readers, but since then, there has been a spike in fake news for liberals as well. This proliferation can make it harder for many people to differentiate what information is true, even after being presented with the facts. "There's a psychological phenomenon called the 'backfire effect' in which people tend to hold on to incorrect beliefs more strongly after being presented with factual information that contradicts those beliefs," says Cohen. "In other words, sometimes when you give people facts to refute misperceptions, it actually makes them more resistant to the truth." David Zurawik, (Staff), BALTIMORE SUN, Nov. 20, 2016, E1. The shooting [at the pizzeria] underscores the stubborn lasting power of fake news and how hard it is to stamp out. Debunking false news articles can sometimes stoke the outrage of the believers, leading fake news purveyors to feed that appetite with more misinformation. Efforts by social media companies to control the spread of these stories are limited, and shutting one online discussion thread down simply pushes the fake news creators to move to another space online. "The reason why it's so hard to stop fake news is that the facts don't change people's minds," said Leslie Harris, a former president of the Center for Democracy & Technology, a nonprofit that promotes free speech and open internet policies. When users are caught abusing the terms of one media platform, they simply go to another, she said.

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B. TRUTH DOES NOT WIN IN THE MARKETPLACE OF IDEAS AS PREDICTED. NEW YORK TIMES, Nov. 20, 2016, SR10. This year, the adage that ''falsehood flies and the truth comes limping after it'' doesn't begin to describe the problem. That idea assumes that the truth eventually catches up. There's not much evidence of this happening for the millions of people taken in by the fake news stories -- like Pope Francis endorsing Donald Trump or Mr. Trump pulling ahead of Hillary Clinton in the popular vote -- that have spread on social media sites. Arek Sarkissian, (Staff), LOWELL SUN, Mar. 12, 2017. Retrieved Dec. 15, 2017 from Nexis. A wildly partisan presidential election defined by deep ideological divides offered the perfect breeding ground for fake news sites to pander to readers craving information that affirms their views. And social media sites such as Facebook offered the extra turbocharge needed to blast these stories across countless networks of friends who all share the same sensibilities. "We like to believe more of what is already in line with what we believe," said Alexios Mantzarlis, director of the Poynter Institute for Media Studies International Fact-Checking Network. "And we tend to explain away, through motivated reasoning, stuff that doesn't fit into that pattern." A study conducted by the Pew Research Center in December found that 64 percent of Americans could not tell the difference between real and fake news. At least 23 percent acknowledged sharing a fake news story, either knowingly or not. Christopher Bezemek, (Prof., Law, Vienna U., Switzerland), FIRST AMENDMENT LAW REVIEW, 2015, 164. It is far from evident that "more speech" adequately remedies intentional falsehood, how "false statements of fact" are to be dealt with in "the marketplace of ideas," or whether the question at hand may be answered by relying on Mill's On Liberty in the first place. Indeed, some scholars emphasize that Mill's work was to be understood in the tradition of John Milton and was thus occupied with true ideas rather than factual truth. C. “FAKE NEWS” DISPROVES KEY ELEMENTS OF THE MARKETPLACE MODEL. Derek Bambauer, (Fellow, Berkman Center for Internet & Society, Harvard Law School), UNIVERSITY OF COLORADO LAW REVIEW, Summer 2006, 703. It seems Mill was wrong: flawed ideas do not function merely to place truth in sharp relief, but also continue to attract adherents. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 634. It does not logically follow that truth is accepted - or falsity rejected - just because it is heard. Because false statements and opinions will not automatically be recognized as false, and because the Marketplace theory requires that this speech be permitted regardless of its truth, it is possible that the Marketplace theory can actually inhibit the public's acquisition of knowledge. Therefore, unless truth is always self- evident (which has already been dismissed as a possibility), Schauer believes that we cannot assume that open debate and discussion will always result in information that is more beneficial, useful, and efficient than that which comes from a controlled Marketplace where speech is suppressed or regulated. Derek Bambauer, (Fellow, Berkman Center for Internet & Society, Harvard Law School), UNIVERSITY OF COLORADO LAW REVIEW, Summer 2006, 708. The marketplace of ideas is an attractive but false god. It represents an Enlightenment ideal of how people should deliberate and decide. The marketplace model places its faith in reason and affirms that, over time, progress occurs, falsehood is discarded, and people learn from their mistakes. This vision incorporates a Darwinian approach to data: information and ideas that are useful and accurate have a natural advantage. Truth outcompetes lies. Unfortunately, this appealing depiction is wrong. Human beings have cognitive biases and filters that distort our thinking. We prefer information that reinforces our ego, upholds our existing views, and makes events seem inevitable through hindsight bias. People often become locked into their initial mental framework, and tend to adopt simple beliefs such as stereotypes rather than using more accurate information. Leonard Niehoff, (Prof., Law, U. Michigan), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 268. The challenge before us seems clear. We have historically depended on the testing power of the marketplace of ideas to expose factual falsehoods and to resist, in Brandeis's memorable phrase, "noxious doctrine." In reality, however, the assumptions embedded in the model have never aligned particularly well with the realities of human cognition, decision-making, and behavior. The 2016 election brought this misalignment to the forefront, fully demonstrating the difficulties we encounter in unseating ideas that are driven by System 1 thinking, that come to us as anchors, that confirm our biases and stereotypes, and that play upon our fears and anxieties. As one of the authors has declared elsewhere, in 2016 the marketplace of ideas "crashed."

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D. IT TURNS OUT THAT THE FILTERS OF REAL JOURNALISM ARE NEEDED TO PRESERVE TRUTH IN THE MARKETPLACE OF IDEAS. Bert Roughton, (Staff), THE ATLANTA JOURNAL-CONSTITUTION, Dec. 18, 2016, 23A. Sadly, people tend to accept much on face value from their shallow stream of social media. Twitter, Google and especially Facebook have usurped the traditional journalistic role in deciding what news you see. This is largely a good thing, but these new journalism platforms have been loath to assume an editor's duty to accuracy. This has caused a mess. When people share or refer to something they read, they say they saw it on Facebook, not that they learned something from the AJC or The Washington Post or the deeply unreliable Real News Right Now or the nonexistent Denver Guardian. Bert Roughton, (Staff), THE ATLANTA JOURNAL-CONSTITUTION, Dec. 18, 2016, 23A. Our journalists work very hard to verify the accuracy of everything we publish. In addition to having a strong corps of fact-obsessed editors, we have standing practices designed to minimize the risk of error. We even require that reporters make it as clear as possible to people what we are writing about them before we publish. In our project on sex abuse by doctors, we sent registered letters to each doctor who was named in our reporting to make sure they were aware and to offer an opportunity to hear their side of the story. We have had no substantive complaint about accuracy. We're not perfect, but we don't publish lies. David Zurawik, (Staff), BALTIMORE SUN, Nov. 20, 2016, E1. Why don't media critics and Facebook users demand the same standards of accuracy they do for The New York Times or Washington Post - especially now that we know how crucial a role social media play in the conversation of democracy? And why doesn't an entrepreneur like Zuckerberg take some of the money his wildly successful platform makes and hire journalists who embody the highest standards of the profession to be part of the management team making editorial decisions? IV. THE BENEFITS OF USING SOCIAL MEDIA AS A NEWS SOURCE DO NOT OUTWEIGH THE HARMS. A. SOCIAL MEDIA IS MORE HARMFUL THAN BENEFICIAL IN PUBLIC EMERGENCIES. Daryl Chin, (Staff), THE STRAITS TIMES, Oct. 22, 2017. Retrieved Dec. 15, 2017 from Nexis. A new study has revealed that victims, particularly students whose campuses were locked down after a shooting incident, are most exposed to conflicting information and undergo the most physiological stress if they get their updates from unofficial channels. The survey findings, conducted by the National Academy of Sciences with 3,890 students, were released last week. The study's lead author Nickolas M. Jones says: "If random people you don't know are tweeting information that seems really scary - and, in particular, if you're in a lockdown and someone is tweeting about multiple shooters - that's anxiety-provoking." Researchers found that heavy social media users who sought updates from social media and loved ones encountered the most misinformation. They also felt the most anxiety, while students who relied on traditional news sources did not have the same experience. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 630. Interrelated to the timeliness issue is the possibility that a social media Marketplace will promulgate false or counterproductive information and advice that has not had time to properly filter through the Market, which will be instantly relied upon because of the urgency created by a crisis or disaster. The social media Marketplace is not designed to instantaneously produce the best ideas. Arriving at the best answer often takes discussion, debate, and an ability to digest all available viewpoints; a crisis or emergency does not present the opportunity to engage in any of these activities to the extent necessary for the Marketplace to properly function. The result may be that individuals, groups, and organizations take conflicting, false, or inaccurate advice in an attempt to solve the crisis, ultimately inhibiting progress. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 650. The effect of rumors and misinformation are accentuated when distributed through social media because of the speed and breadth of their distribution. For example, in the late summer of 2011 when Hurricane Irene was heading toward New York City, a picture entitled "Hurricane Irene approaching North Carolina" spread around the Internet and was viewed 270,000 times. However, not only was the picture not taken in North Carolina - it was taken in Pensacola, Florida weeks before Irene - but it wasn't even a picture of Hurricane Irene. Social media is a powerful tool, and the speed and breadth with which material can be distributed makes it difficult to separate fact from fiction.

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Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 650. A third disconnect between the Marketplace theory and social media use in the context of an emergency or crisis is the reality that the anonymity of the Internet and the lack of time and resources available prevent one from properly distinguishing trustworthy sources from the untrustworthy. Traditional mass media entities or governmental organizations act as gatekeepers to the content and quality of the information they promulgate, and users likely have developed preconceived notions of the trustworthiness (or lack thereof) of each entity based on past experience with that entity. Unlike these traditional mass media entities, social media relies on the individual user to independently vet sources' trustworthiness. Further complicating this relationship is the fact that during an emergency or crisis, those who turn to social media for opinions and advice are likely to collect information from a host of sources which they have never previously relied on. Because of the anonymity of the Internet, they cannot necessarily verify their authenticity. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 649. A recent Congressional Research Service Report articulated many negative consequences of the use of social media in emergency situations and crises that result from the advancement of false or counterproductive information. The Report observed documented instances of social media disseminating false or outdated information in an emergency or crisis. There have been instances where the location of the hazard or threat was inaccurately reported or a request for help reposted after a victim had already been rescued. The Report further noted that promulgation of this false or misleading information could complicate awareness of the emergency incident and slow down response efforts. Furthermore, the Report hypothesized that social media could also be intentionally used as a malicious tool during an emergency situation to "confuse, disrupt, or otherwise thwart response efforts." In an emergency or crisis, there is often no time for the Marketplace to assess ideas, so we cannot assume that rationality will prevail; the urgency of the situation may result in reliance on misinformation to the detriment of the pursuit of truth. These conditions lead to a situation where false or counterproductive information can produce detrimental results. B. SOCIAL MEDIA DOES NOT OFFER A MEANINGFUL SOLUTION TO SEXUAL HARASSMENT. Katie Glass, (Staff, London Sunday Times), TIMARU HERALD, Oct. 24, 2017. Retrieved Dec. 15, 2017 from Nexis. The lynch-mob mentality of Twitter allows no time for nuance or context, however. In court, sexual assault cases are decided on the basis of evidence, due process and a presumption of innocence. What is troubling about the trial by Twitter spawned by #MeToo is that the law is dispensed with. Now if someone says you are a rapist online, you are. DAILY NEWS, Oct. 23, 2017. Retrieved Dec. 15, 2017 from Nexis. This is not the first viral social media campaign prompting women to tell their stories of sexual harassment or assault. Women have been sharing their stories, en masse, for years now - and yet harassment and assault continue. "I'm wary and weary of people, mainly female-identifying, being asked to share their trauma in public, so it can be used to tip a scale of male belief that shouldn't need tipping," Hannah Krieger-Benson, a 32-year-old musician in New Orleans, posted to Facebook. Laura Gianino, (Staff), WASHINGTON POST, Oct. 22, 2017, B2. In the aftermath of the Harvey Weinstein allegations, women have been blanketing social media with their stories of assault using the hashtag #MeToo, despite the repercussions of going public. I have read accounts of all sorts by women who, by the standards of my detractors, were not "really raped" but stood up anyway to say #MeToo. I applaud these women, and I also fear for them. I fear that they will be beaten down by the slut-shamers and the victim-blamers, by the Internet trolls and the possible real-life trolls.

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Michelle Malkin, (Analyst, Competitive Enterprise Institute), TRIBUNE-REVIEW, Oct. 22, 2017. Retrieved Dec. 15, 2017 from Nexis. Based on decades of scientific literature, they explode the "2 percent myth" peddled by politicians, victims' advocates and journalists "claiming that the nationwide false report rate for rape and sexual assault is nonexistent." In fact, the statistic was traced to an unverified citation in a 1975 book by feminist author Susan Brownmiller. "This figure is not only inaccurate," Turvey and his co-authors conclude, "but also it has no basis in reality." Published research has documented false rape and sexual-assault report rates ranging from 8 percent to 41 percent. Savino notes about his NYPD Manhattan Special Victim Squad's false-report rate, "Sometimes, it was as high as 40 percent." Turvey, Savino, and Mares make clear that "False reports happen; they are recurrent; and there are laws in place to deal with them when they do. They are, for lack of a better word, common." Turvey and his colleagues say, "All reports of crime must be investigated. Otherwise, they are merely unconfirmed allegations that the ignorant or lazy may pass along as truth." Rape is a devastating crime. So is lying about it. When #MeToo bandwagons form in the midst of a panic, innocent people get run over. C. SOCIAL MEDIA IN REPRESSED SOCIETIES IS JUST AS LIKELY TO SPREAD MISINFORMATION AS THE TRUTH. Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 173. Social media can also spread bad ideas and content just as it can spread good ideas and content. As Morozov points out, it is wrong to assume that all bloggers in Russia, China, or Iran favor democratic reforms and pluralist tolerance. Many such bloggers are more hardline than their government; the blogosphere in authoritarian States harbors reactionaries just as it does in the West. Such reactionaries can even be cultivated to report on perceived subversive activity, as has occurred in Thailand, Saudi Arabia, and China, or to engage in cyber-attacks on dissident websites. Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 172. Social media can be used to communicate misinformation as readily as it can be used to convey reliable information. For example, "A Gay Girl in Damascus" (Amina Arrat) was one of the more popular Syrian bloggers in the beginnings of the uprising, blogging about revolution, sexuality, and repression in Syria. The story fell apart, however, after "Amina" was revealed to be Tom McMaster, a masters student resident in Scotland. The unmasking of "Amina" as a straight man from Scotland reminded us all how easy it can be to spread lies and use a false identity in cyberspace. It also no doubt undermined the real Syrian activist blogosphere and its receptive audience. Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 172. Similarly, while social media can be used to support pro-democracy forces, it can also be used to push pro-government propaganda. In March 2011, The Guardian reported that the U.S. military was "developing software that will let it secretly manipulate social media sites by using fake online personas to influence Internet conversations and spread pro-American propaganda." While such tactics may be designed to target extremist ideas that might foster terrorism, they could also thoroughly compromise the key "conversation" potential of social media, especially if the same idea is adopted by other governments, companies, or NGOs. Propaganda is even being outsourced by some States, with U.S.-based public relations consultants providing "reputation management" services to governments such as those in Bahrain, Syria, and, previously, Tunisia. D. SOCIAL MEDIA DOES NOT SOLVE FOR MEDIA CONCENTRATION. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 283. Finally, an observation about the Internet. Many claim that the Internet has successfully circumvented the global corporate oligarchy and become a successful voice for the disenfranchised. Unfortunately, this is not the case. An independent Web page is still no match for an established news organization that operates highly-rated 24-hour cable and radio networks, and has substantial Internet properties of its own. Some Internet advocates claim all Web sites are on an equal footing with one another, but have they ever counted the number of times a news operation's Web site is promoted during a particular newscast? The media giants use the Internet as simply another vehicle for promotion and advertising revenue. Their Web sites are chock full of advertising banners and so-called "news," which is essentially program information presented in a news-type format. The myth that the Internet has created a new an effective avenue for the dissemination of alternative or diverse news and views must be debunked.

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AFFIRMATIVE CASE #2: POLARIZATION The thesis of this case is that the social media as a news source polarizes the electorate, thus undermining the marketplace of ideas. The political spectrum has lost its middle – liberals have shifted further to the left and conservatives have shifted further to the right, robbing the country of a majority capable of governing. The marketplace of ideas metaphor assumes that all members of the body politic are contributing ideas to the same marketplace. The rise of social media as a news source undermines this assumption because it has created echo chambers of opinion where there is no longer meaningful interaction with those who disagree. OBSERVATION: I. THE MARKETPLACE OF IDEAS METAPHOR PRESUMES THAT MEMBERS OF THE BODY POLITIC SHARE THE SAME MARKETPLACE. A. THE MARKETPLACE METAPHOR ASSUMES THAT IDEAS WILL BE EXAMINED SIDE-BY-SIDE. Richard Schwarzlose, (Prof., Journalism, U. Illinois), THE MARKETPLACE OF IDEAS: A MEASURE OF FREE EXPRESSION, 1989, 4. As a practical matter for Milton, bits and pieces of Truth might surface in the most unexpected places; thus all (save a few dangerous detractors) must be allowed to speak, free of censorship by either the political or religious institutions. Moreover, for these pieces of the Truth to be self-evident to the rational mind, they must be set alongside all other potentially true and false statements available at the moment. In the conflict among statements that ensued, Truth would emerge victorious, appealing as the embodiment of reason to the rational human mind. "And though all the winds of doctrine were let loose to play upon the, earth," Milton implores his reader, . . . so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter. (ellipsis in original) B. THE MARKETPLACE OF IDEAS PRESUMES AN EXCHANGE OF IDEAS. Brian Pinaire, (Ph.D., Political Science, Rutgers), MARKETPLACE OF IDEAS THEORY, July 29, 2012. Retrieved Dec. 15, 2017 from http://uscivilliberties.org/themes/4099-marketplace-of-ideas-theory.html. The marketplace of ideas theory stands for the notion that, with minimal government intervention—a laissez faire approach to the regulation of speech and expression—ideas, theories, propositions, and movements will succeed or fail on their own merits. Left to their own rational devices, free individuals have the discerning capacity to sift through competing proposals in an open environment of deliberation and exchange, allowing truth, or the best possible results, to be realized in the end. CONTENTIONS: I. USE OF SOCIAL MEDIA AS A NEWS SOURCE CAUSES POLARIZATION OF THE ELECTORATE. A. POLARIZATION OF THE ELECTORATE IS INCREASING. Bruce Cain, (Prof., Humanities, Stanford U.), OHIO STATE LAW JOURNAL, 2016, 872. American politics has become decidedly more polarized in the last two decades. By political polarization, we mean the persistent and growing ideological gap between adherents of the two major political parties. Another way to think of polarization is that there is increasingly less overlap in what the two parties stand for. Polarization is the centrifugal force that draws the two parties farther away from each other, and also from the center. Gary Crooks, (Staff), SPOKESMAN REVIEW, July 8, 2017, C11. Research shows that the nation is more divided than it has been in a very long time. Democrats have moved to the left. Republicans have moved to the right. It's become difficult to find moderates in both parties. Republicans have bludgeoned their moderates with terms like "RINO," Republicans in Name Only. Democrats don't have such a handy term, at least not one that I can repeat in polite company, but the neoliberals that carried a more centrist Bill Clinton into power are on the run. So not only are the parties farther apart, but party identification has become a more significant cultural identifier, similar to race and gender. And the criticism of people based on their party ID has become more like racism and sexism. People quickly fill in their gaps of knowledge about a particular person with stereotypes about liberals or conservatives.

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Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 77. Polarization even extends to disagreement over basic facts. As Carl Cannon has observed, "excess partisanship literally inhibits Americans from processing information that challenges their biases." A 2010 study by Adam Berinsky underscored the political ramifications of fake news when it found that partisan biases make Democrats and Republicans particularly receptive to misinformation that reinforces their preexisting beliefs. For example, Republicans opposed to environmental regulation consistently get basic facts wrong about climate change when surveyed. Even objective evidence fails to change the minds of those determined to view facts in a subjectively partisan light. B. INCREASED MEDIA CHOICES FACILITATE SELECTIVE EXPOSURE TO IDEAS. Sara Yeo, (Prof., Communication, U. Utah), THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, Mar. 2015, 172. Scholars are concerned that the splintered media landscape, due to the proliferation of online tools, could enhance polarization by offering a multitude of choices for news consumers, allowing for selective exposure. C. FAKE NEWS PROMOTES POLARIZATION. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 78. Studies have found that Republicans and Democrats alike tend to ignore news stories that challenge their pre-existing beliefs and blindly accept stories that reinforce their partisan prejudices, even if the information is false. Hence, fake news and political polarization go hand-in-hand. Frank Denton, (Staff), FLORIDA TIMES-UNION, Dec. 11, 2016, E1. A bigger danger is that fake news can feed ignorance, further polarize people politically and racially, undermine legitimate journalism and subvert democracy. Producers of fake news can be anywhere, but The Associated Press reported that a hub of the fake news industry seems to be Veles, Macedonia, population 45,000, where about 200 U.S.-targeted websites are registered. Several news outlets interviewed teenagers there who are unashamed about creating fake stories, posting them on Facebook and attracting gullible audience for ads on their own websites. D. THE ANONYMITY OF SOCIAL MEDIA REMOVES THE FILTERS THAT WERE ONCE PRESENT WITH TRADITIONAL MEDIA. Bruce Cain, (Prof., Humanities, Stanford U.), OHIO STATE LAW JOURNAL, 2016, 880. One final associated general trend is the decreasing influence of traditional media and the rising prominence of social media. While the long-term effects of this trend will only fully reveal themselves in time, it seems pretty clear at this point that it has removed a filter on public dialogue, and under the cover of semi-anonymous internet identities, unleashed and provided a wide platform to uncivil discourse, and in some cases, hateful and violent speech. Social media may also contribute to a phenomenon that social scientists have termed affective polarization. Social media platforms like Facebook or Twitter, which allow users to choose whom to receive news and entertainment from, may cause users to become cloistered within a particular ideological community. It may also create greater pressures to conform to prevailing views in the online communities. The Internet seems also to give rapid national and international exposure to what might have been in an earlier era a localized partisan and racial issue like minority voting rights. The segregated and segmented media environment threatens to calcify conjoined polarization. E. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE PROMOTES CONFIRMATION BIAS. RonNell Jones, (Prof., Law, U. Utah), NORTHWESTERN UNIVERSITY LAW REVIEW ONLINE, Nov. 18, 2017, 60. But the political fragmentation of the media is also impacting public perception, because "when it's easier to find news sources that confirm people's biases, it's also easier to find news stories that inflame their outrage." Story Hinckley, (Staff), CHRISTIAN SCIENCE MONITOR, Dec. 15, 2016. Retrieved Dec. 12, 2017 from Nexis. "The problem is that we are too credulous of news that reinforces our predispositions and too critical of sites that contradict them," says Brendan Nyhan, a political scientist at Dartmouth University in Hanover, N.H. The combination of technology and partisanship created the perfect storm for these sites to take off, he explains. "Facebook created the platform and the election created the topic that would deliver the hits and shares."

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Bryan Adamson, (Prof., Law, Seattle U. School of Law), HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE, Spr. 2016, 215. Interpersonal and rumor theory principles of leveling, sharpening, and adding explain how news stories, transmitted through electronic social media, undergo consequential distortions. Leveling occurs when the story grows shorter and more concise as it is passed along. Sharpening involves the "selective perception, retention, and reporting of a limited number of details from a larger context." Adding occurs as news is passed along, and the communicator adds new material or details in the storytelling. In the adding phase, the transmitter may posit his own opinion, idea, or spin upon which the transmitter incorporates his own cognitive habits, biases, and prejudices. Because in-group network members most likely evince ideological homophily, news items shared through social media have reinforcing effects. F. USE OF SOCIAL MEDIA AS A NEWS SOURCE CREATES AN ECHO CHAMBER – PEOPLE ONLY TALK TO THOSE WHO ALREADY AGREE WITH THEM. Sara Yeo, (Prof., Communication, U. Utah), THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, Mar. 2015, 182. The exposure of citizens to a diverse marketplace of ideas is beneficial to society. As consumers migrate from more traditional media to the Internet for information about science and technology, this fragmented online environment makes it difficult for citizens to experience cross-cutting information. Instead, it allows citizens to select information and cocoon themselves in "echo chambers". The consequences of these echo chambers are concerning; scholars point to polarization as the primary detrimental outcome. RonNell Jones, (Prof., Law, U. Utah), NORTHWESTERN UNIVERSITY LAW REVIEW ONLINE, Nov. 18, 2017, 62. The newspaper reader of yesterday, for example, may have stumbled upon political news on the way to the sports or society page; but the social media reader of today may "curate news consumption," seeing only what she seeks out or what her social media platform's algorithms determine would suit her preferences. Harry Bruinius, (Staff), THE CHRISTIAN SCIENCE MONITOR, Nov. 19, 2016. Retrieved Dec. 15, 2017 from Nexis. And as over six out of 10 American adults now turn to their algorithm-driven social media feeds to get news, according to Pew Research, conservatives and liberals often have radically conflicting sources of information, as a Wall Street Journal side-by-side graphic analysis of blue feeds and red feeds recently showed. It's a trend with troubling implications, scholars say. Long considered a bedrock of democracy, the "free press," enshrined in the US Constitution and considered an informal "fourth estate" of government, is supposed to cover and provide context for the actions of the three branches of government. "Americans are ... likely to get what they do know, or think they know, from an echo chamber," says Krista Jenkins, professor of political science at Fairleigh Dickinson University in Teaneck, N.J., via email. "What's needed in our discourse is a cross-pollination of ideas and viewpoints so that we begin to turn the tide on the alarming trend of seeing the other side as dangerous and misguided," Professor Jenkins continues, "rather than those whose experiences and perspectives lead them to believe different things about where to go and how to get there." (ellipsis in original) John Herrman, (Staff), THE NEW YORK TIMES, Nov. 19, 2016, B1. Facebook is a place where people construct and project identities to friends, family and peers. It is a marketplace in which news is valuable mainly to the extent that it serves those identities. It is a system built on ranking and vetting and voting, and yet one where negative inputs are scarcely possible, and where conflict is resolved with isolation. (Not that provisions for open conflict on a platform present any easy alternatives: For Twitter, it has been a source of constant crisis.) Fake news operations are closely aligned with the experienced incentives of the Facebook economy -- more closely, perhaps, than most of the organizations that are identifying them. II. POLARIZATION OF THE ELECTORATE IS SIGNIFICANTLY HARMFUL A. POLARIZATION SHRINKS THE POLITICAL CENTER. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 75. The term "polarization" refers to intense partisan conflict that replaces traditional norms of civil discourse and bipartisan agreement with bitterly hostile political rhetoric and straight party-line voting. When polarization occurs, the political center shrinks as both parties move toward their ideological extremes.

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Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 175. A potential downside of social media is the so-called ghettoization of speech. Many people will follow, view, and become a fan of only those sites that accord with their preconceived world view. This phenomenon may generate greater and more intransigent political divides, and, at worst, "enclave extremism." B. POLARIZATION UNDERMINES DEMOCRATIC DECISION MAKING. Marc Allen, (JD Candidate), MICHIGAN JOURNAL OF MICHIGAN LAW SCHOOL, 2013, 145. James A. Thomson of the RAND Corporation has argued that, among other things, polarization inhibits political discourse and limits the efficacy of sound policy analysis in politics. As Cass Sunstein has noted, polarization can be dangerous to democratic decision making. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 80. Polarization has become so intense and so pervasive it undermines the ties that bind the nation together. The country is self-sorting into a collection of like-minded partisan enclaves, where the idea of ideological diversity is viewed with disdain and hostility. For example, demographic studies have found that Republican voters increasingly choose to live among fellow Republicans in low population density areas and Democratic voters increasingly choose to live among fellow Democrats in high population density areas. C. POLARIZATION, IF ALLOWED TO CONTINUE, COULD LEAD TO CIVIL WAR. Orson Card, (Columnist), EMPIRE, VOLUME 1, 2009, Preface. Retrieved Dec. 15, 2017 from Google Books. In America today, we are complacent in our belief that it can’t happen here. We forget that America is not an ethnic nation, where ancient ties of blood can bind people together despite differences. We are created by ideology; ideas are our only connection. And because today we have discarded the free marketplace of ideas and have polarized ourselves into two equally insane ideologies, so that each side can, with perfect accuracy, brand the other side as madmen, we are ripe for the next step, to take preventive action to keep the other side from seizing power and oppressing our side. The examples are – or should be – obvious. That we are generally oblivious to excesses of our own side merely demonstrates how close we are to a paroxysm of self-destruction. We are waiting for Fort Sumter. III. POLARIZATION OF THE ELECTORATE UNDERMINES THE MARKETPLACE OF IDEAS. Marc Allen, (JD Candidate), MICHIGAN JOURNAL OF MICHIGAN LAW SCHOOL, 2013, 145. Polarization negates the positive effects of group deliberation - the sort of marketplace-of-ideas model articulated by John Stuart Mill in On Liberty or the additional check on the tyranny of the majority articulated by Alexander Hamilton in Federalist 70.

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AFFIRMATIVE CASE #3: HATE SPEECH The thesis of this case is that the social media as a news source promotes hate speech, thus undermining the marketplace of ideas. The marketplace of ideas model presumes not only a civil exchange of ideas but also that each individual has an equal opportunity to contribute their ideas. The use of social media as a news source has coarsened our discourse, becoming a home for hate speech and other forms of unbridled prejudice. OBSERVATION: I. THE MARKETPLACE OF IDEAS METAPHOR ASSUMES THE CIVILITY OF DISCOURSE. A. JOHN LOCKE – ONE OF THE FOUNDERS OF THE MARKETPLACE MODEL – EMPHASIZED MORALITY IN CIVIC DISCOURSE. Richard Schwarzlose, (Prof., Journalism, U. Illinois), THE MARKETPLACE OF IDEAS: A MEASURE OF FREE EXPRESSION, 1989, 7. But Locke found that liberty could not extend to those "opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society." Locke's marketplace was closed to sedition and atheism. B. THE MARKETPLACE MODEL PRESUMES CIVIL EXCHANGE OF IDEAS. Matthew Petrusek, (Prof., Ethics, Loyola Marymount University, Los Angeles), THE FEDERALIST, June 27, 2017. Retrieved Dec. 15, 2017 from http://thefederalist.com/2017/06/27/rescue-marketplace-ideas-culture- wars-late/. It doesn’t matter how long or how much we talk if there is no shared basis for what constitutes rational speech. If this trend continues unchecked, it will eventually kill what remains of the marketplace. And when civil means of exchange collapse, it’s only natural for people to start fighting with weapons rather than words. C. THE MARKETPLACE MODEL PRESUMES THE EQUALITY OF CONTRIBUTORS. Cedric Powell, (Prof., Law, U. Louisville), HARVARD BLACKLETTER LAW JOURNAL, Spr. 1995, 13. The conception of a neutral ideological marketplace is wholly unworkable without a conception of equality. Value choices based on content and harm are already an inextricable component of First Amendment jurisprudence; in the context of racist hate speech, the choice is based on the value of speech and its effect in the perpetuation of caste. Thus, valueless words and symbols are not only outside of core First Amendment values, they should be regulated when they undermine equality. They are elements crucially related to the perpetuation of caste: they contribute to the maintenance of systems of caste by creating a climate of racial intolerance and cynical indifference; they are not intended and received as an exchange of ideas in the ideological marketplace; they are part of low-value speech and are not protectable as purely political speech; and they may constitute, in and of themselves, unlawful acts. Leonard Niehoff, (Prof., Law, U. Michigan Law School), MICHIGAN JOURNAL OF RACE & LAW, Spr. 2017, 251. As an initial matter, this model assumes that competing ideas will at least have a fairly equal opportunity to come into the marketplace and strive for consideration and allegiance. CONTENTIONS: I. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE UNDERMINES THE MARKETPLACE OF IDEAS BY PROMOTING INCIVILITY. A. SOCIAL MEDIA INHERENTLY TURNS USERS INTO A NEWS SOURCE. Johnny Holschuch, (JD), UNIVERSITY OF CINCINNATI LAW REVIEW, Spr. 2014, 956. The individualization of the Internet and social media through Facebook and Twitter has created a new forum for communication in America. Social media websites are public, like newspapers, as well as targeted and individualized, like letters. They also differ from traditional Internet chat rooms in that individuals' families and friends are more likely to be present on Twitter and Facebook. While social media networks provide greater interpersonal connectivity, they also provide electronic forums where users can individually and publicly target other users. As the Supreme Court has noted: "Through the use of chat rooms, any person . . . can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." (ellipsis in original)

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John Herrman, (Staff), THE NEW YORK TIMES, Dec. 22, 2016. Retrieved Dec. 15, 2017 from Nexis. During the election, it was apparent to almost anyone with an account that Facebook was teeming with political content, much of it extremely partisan or pitched, its sourcing sometimes obvious, other times obscured, and often simply beside the point - memes or rants or theories that spoke for themselves. Stacey Steinberg, (Prof., Law, U. Florida College of Law), KENTUCKY LAW JOURNAL, 2017, 427. All social media platforms spread information quickly between users, and many individual users rely on their social media accounts to learn about breaking news, important social issues, and general information. Each social media user has a unique "newsfeed," curated by the individuals, business, communities, and groups they choose to follow. When a social media user sees something of interest in his or her newsfeed, the user can re-share the information with their own followers, and he or she can often "dive deeper" into the background of the posting that attracted their attention. For example, if a user sees a post about energy conservation, he or she can often back track through the poster's newsfeed, through the website of the shared content, or through the content of other interested followers' newsfeeds. With each new post, users have almost limitless data through which to explore. Rachel VanLendingham, (Prof, Law, Southwestern Law School), CARDOZO LAW REVIEW, Oct. 2017. Retrieved Dec. 15, 2017 from Nexis. Social media plays an increasingly powerful role as a news source for millions of users on Facebook, Twitter, and other social media platforms. Empirical studies have led some scholars to conclude that "the most powerful trend in journalism today is full integration with reporting, presentation and distribution of journalism through the social web." They argue that social media companies "have taken over many of the functions of the mainstream media or the free press." Rachel VanLendingham, (Prof, Law, Southwestern Law School), CARDOZO LAW REVIEW, Oct. 2017. Retrieved Dec. 15, 2017 from Nexis. That social media entities, particularly platforms such as Facebook and Twitter, distribute the news is beyond dispute. B. THE ANONYMITY OF SOCIAL MEDIA PROTECTS HATE SPEECH. Johnny Holschuch, (JD), UNIVERSITY OF CINCINNATI LAW REVIEW, Spr. 2014, 961. Twitter's lack of cooperation in removing anti-Semitic remarks from its service, the company cannot be held liable for any damage inflicted by those comments. When the actual speaker remains anonymous or lacks any monetary assets, a suit against a social media website does not provide an alternative and there may be no remedy available for the victim. Johnny Holschuch, (JD), UNIVERSITY OF CINCINNATI LAW REVIEW, Spr. 2014, 959. Facebook and Twitter users can mask their identities using anonymous or pseudonymous profiles, and Facebook and Twitter have protocols to protect against the disclosure of users' identities. Therefore, discovering the identity of anonymous users may pose the first hurdle in hate speech cyber litigation. C. HATE SPEECH HAS SPREAD RAPIDLY THROUGH SOCIAL MEDIA. Johnny Holschuch, (JD), UNIVERSITY OF CINCINNATI LAW REVIEW, Spr. 2014, 962. Hate speech, furthermore, has permeated social media. Serious and repeated incidents of hate speech directed at individuals will undoubtedly occur, and can cause serious economic, psychological, and physical harm. The ability of individuals to communicate to thousands of individuals at once means that the psychological harm caused by insults is severe, the economic harm caused by lost clients and employers is substantial, and the possibility of physical harm caused by mob violence is real. Johnny Holschuch, (JD), UNIVERSITY OF CINCINNATI LAW REVIEW, Spr. 2014, 955. In the past decade, the use of social media services has expanded tremendously within American society, impacting nearly every American's life and providing a new forum for interpersonal communication. Facebook and Twitter's unique structures, though, individualize, publicize, and facilitate hate speech to an extent that impacts the victims of hate speech more than other communication forums. Present laws were not constructed to address social media, which has provided a completely new forum for speech. D. SOCIAL MEDIA SPREADS RACIST SPEECH AND FEEDS PREJUDICE. Bryan Adamson, (Prof., Law, Seattle U. School of Law), HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE, Spr. 2016, 217. For those taking their cues about the Ferguson saga online, our social network members could exert powerful cognitive and affective influence. As explained, news stories are distorted from their inception. But when framed by our network peers and select media sources, news stories are further distorted, and can be manipulated to feed into the best, and the worst predispositions and prejudices.

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John Herrman, (Staff), THE NEW YORK TIMES, Nov. 19, 2016, B1. During the months I spent talking to partisan Facebook page operators for a magazine article this year, it became clear that while the ecosystem contained easily identifiable and intentional fabrication, it contained much, much more of something else. I recall a conversation with a fact checker about how to describe a story, posted on a pro-Trump website and promoted on a pro-Trump Facebook page -- and, incidentally, copied from another pro-Trump site by overseas contractors. It tried to cast suspicion on Khizr Khan, the father of a slain American soldier, who had spoken out against Donald J. Trump. The overarching claims of the story were disingenuous and horrifying; the facts it included had been removed from all useful context and placed in a new, sinister one; its insinuating mention of ''Muslim martyrs,'' in proximity to mentions of Mr. Khan's son, and its misleading and strategic mention of Shariah law, amounted to a repulsive smear. It was a story that appealed to bigoted ideas and that would clearly appeal to those who held them. This was a story the likes of which was an enormous force in this election, clearly designed to function well within Facebook's economy of sharing. Bryan Adamson, (Prof., Law, Seattle U. School of Law), HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE, Spr. 2016, 216. Memes are a particularly insidious news distortion shared in social media networks. Memes are cultural units (or idea) that seek replication. When replicated, memes become basic "minimum cultural information units transferred between individuals and/or generations." Memes are distinguished by their properties of fecundity, fidelity and longevity. Those properties best ensure their spread, distribution, replication, and propagation. Created with summative characteristics of complex events or issues, memes, as rhetorical constructs, are effective at framing issues. They can be evaluations of people, issues or matters that are an admixture of facts and opinion. Julie Seaman, (Prof., Law, Emory U. School of Law), ARIZONA STATE LAW JOURNAL, Winter 2016, 1027. The Internet hosts a range of genuinely alarming speech that seems to fall within the gap between these two unprotected categories--thus, in doctrinal terms, leaving it fully protected under the Free Speech Clause and regulable only where the government can satisfy the very demanding standard of strict scrutiny. Consider the statements of Kenneth Wheeler, who posted several "status updates" on Facebook "urging his 'religious followers' to 'kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines" and further told his "religious followers and religious operatives" that "if [his] dui charges [were] not dropped" they should "commit a massacre in the stepping stones preschool and day care, just walk in and kill everybody." Michelle Roter, (JD Candidate), HOFSTRA LAW REVIEW, Summer 2017, 1380. A masked militant dressed in all black then appeared next to Foley, who was positioned on his knees in an orange jumpsuit. After Foley was given a chance to say some final words, the terrorist gruesomely beheaded him. There is no doubt that the purpose of this video was to influence American foreign policy as the masked murderer warned the Obama Administration that its continued military presence in Syria "will result in the bloodshed of [the American] people." However, many of those who are familiar with the organization believe that ISIS had another objective in mind-to establish itself as a leader in the global jihadist movement in order to earn support and respect from other terrorist groups and sympathizers around the world. YouTube removed the video within hours, but terrorists continue to use social media as a means to forcibly insert themselves into the mainstream news. E. THE ANONYMITY OF SOCIAL MEDIA FACILITATES REVENGE PORN. Thomas Crocker, (Prof., Law, U. of South Carolina School of Law), VANDERBILT LAW REVIEW 2017, 50. The social practices new digital media make possible can lead to new categories of speech--such as revenge pornography--capable of wrecking great harm on individual lives without colorable claim to participation in the free expression of ideas. II. HATE SPEECH SHOULD NOT BE PROTECTED UNDER THE FIRST AMENDMENT. Cedric Powell, (Prof., Law, U. Louisville), HARVARD BLACKLETTER LAW JOURNAL, Spr. 1995, 8. Viewing the theoretical underpinnings of the First Amendment and its historical context, it is evident that although the First Amendment is drafted in absolute terms, the amendment does not contemplate oppression of minorities through speech. Cedric Powell, (Prof., Law, U. Louisville), HARVARD BLACKLETTER LAW JOURNAL, Spr. 1995, 11. The First Amendment cannot be viewed in isolation. It must be read in conjunction with the Fourteenth Amendment's guarantee of equal protection of the law. Thus, the question is not whether free speech, in the context of racist hate speech, should be preserved without regard to its effect, but whether equality is best served by legitimizing such speech. The Fourteenth Amendment answers this question emphatically in the negative.

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NEGATIVE CASE #1: MEDIA CONCENTRATION The thesis of this case is that the social media as a news source supports, rather than undermines, the marketplace of ideas by providing much needed diversity of opinions. Traditional media has become unduly concentrated as mergers and acquisitions have narrowed the ownership of networks, television stations, and newspapers. In addition, traditional media firms represent the narrow political interests of the wealthy, being mostly owned by billionaires or major corporations. The use of social media as a news source has lowered the barrier to entry and promoted citizen journalism. OBSERVATION: I. THE MARKETPLACE OF IDEAS MODEL IS BASED ON THE ASSUMPTION THAT DIVERSITY IS GOOD. A. JOHN STUART MILL BELIEVED THAT THERE OUGHT TO BE UNREGULATED ENTRY INTO THE MARKETPLACE OF IDEAS. Brian Leiter, (Prof., Law, U. Chicago), THE SYDNEY LAW REVIEW, Dec. 2016, 431. Recall that Mill believes that discovering the truth (or believing what is true in the right kind of way) contributes to overall utility, and that a largely unregulated 'marketplace of ideas' (as it has come to be called) is most likely to secure the discovery of truth (or believing what is true in the right kind of way). Mill's commitment to the so-called 'marketplace' is, however, based on three claims about truth and our knowledge of it. First, Mill thinks we are not justified in assuming that we are infallible: we may be wrong, and that is a reason to permit dissident opinions, which may well be true. Second, even to the extent our beliefs are partially true, we are more likely to appreciate the whole truth to the extent we are exposed to different beliefs that, themselves, may capture other parts of the truth. Third, and finally, even to the extent our present beliefs are wholly true, we are more likely to hold them for the right kinds of reasons, and thus more reliably, to the extent we must confront other opinions, even those that are false. B. THE MARKETPLACE OF IDEAS MODEL PRESUMES FREE EXCHANGE OF IDEAS. W. Lance Bennett, (Prof., Poli. Sci., U. Washington), DEMOCRACY AND THE MARKETPLACE OF IDEAS, 1997, 28. Political theorists point to the free exchange, or marketplace of ideas, as a defining condition of liberal democracy. C. THE MARKETPLACE OF IDEAS IS BASED ON A COMPETITIVE MODEL, WHERE DIVERSE IDEAS ARE WELCOMED. Michael Murray, (Prof., Mass Communication, U. of Missouri at St. Louis), MEDIA LAW AND ETHICS, 2007, 113. The forum for political debate – the so-called marketplace of ideas – represents the democratic ideal that in political debate, many voices will be heard and no voice will be silenced in the search for truth. The assumption is that in the end, the best idea will prevail in the debate. The marketplace of ideas, while not an American creation, has been elevated to the capstone of democracy and individual liberty by a long string of judicial decisions. Thomas Magstadt, (Prof., Political Science, U. Kansas), UNDERSTANDING POLITICS: IDEAS, INSTITUTIONS, AND ISSUES, 2008, 86. The modern form of republican government is liberal democracy, which stresses political equality and individual liberties and in which the polity is seen as a highly competitive marketplace of ideas and interests. Patrick Garry, (Dir., Hagemann Center for Legal & Public Policy Research), THE AMERICAN VISION OF A FREE PRESS, 1990, 8. According to the marketplace model, individual speech was protected because it brought diversity, competition and efficiency to the collective search for truth. Free speech led to an expression of many ideas and, therefore, to a resulting marketplace of ideas.

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CONTENTIONS: I. THE CONCENTRATION OF TRADITIONAL MEDIA COMPANIES UNDERMINES THE MARKETPLACE OF IDEAS. A. MERGERS AND ACQUISITIONS HAVE NARROWED THE OWNERSHIP OF TRADITIONAL MEDIA. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 247. There exists in America a control of news and of current comment more absolute than any monopoly in any other industry. Freedom of the press belongs to those who own one. Patrick Garry, (Dir., Hagemann Center for Legal & Public Policy Research), THE AMERICAN VISION OF A FREE PRESS, 1990, 4. The media are becoming increasingly more concentrated in the hands of fewer and fewer corporations. Increased media concentration has been criticized off/the following grounds: (1) that it poses a danger to diversity of ideas and a frustration of the concept of a marketplace of ideas; and (2) that such concentration frustrates citizen participation in government. Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 364-365. As we mentioned earlier, America's institutional journalism is not interested in democracy, but instead is obsessed with profits and power befitting its role as a tool of large corporations. For decades now scholars have been noting the growing concentration of ownership of institutional journalism and the dangerous consequences of such concentration. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 248. In the past decade, there have been many media corporate unions, most notably Disney and Capital Cities/ABC, Viacom and CBS, and the largest media merger to date, America Online ("AOL") and Time- Warner. These media mergers may make good sense economically, but what about their impact on news organizations? The First Amendment prohibits only government interference in the "marketplace of ideas;" it says nothing, however, about potential domination of the marketplace of ideas by large media organizations. Although corporate control of the press has been a concern for more than a century, the recent media merger trend has re-ignited fears over the possible degradation of journalism by corporate interests. B. NEWSPAPERS ARE INCREASINGLY REPRESENTING WEALTHY INTERESTS. Lili Levi, (Prof., Law, U. Miami School of Law), AMERICAN UNIVERSITY LAW REVIEW, Feb. 2017, 795. Moreover, private wealth shows its influence on the modern press in other ways than the turn to strategic litigation funding. The past few years have shown an emerging trend of newspaper purchases by the super-wealthy. Although some of the "billionaire saviors" are seen as committed to their newspapers' independence, there are still obvious concerns about the owners' abilities - directly or indirectly - to meddle in, or at least generally influence, the editorial positions and content of their newspapers. C. THE BARRIERS TO ENTRY ARE HIGH FOR TRADITIONAL MEDIA. Sabrina Niewialkouski, (JD), UNIVERSITY OF MIAMI LAW REVIEW, Spr. 2016, 988. Although it could be argued that there are other media through which these ideas could be distributed, such as televisions or newspapers, that argument is ultimately ignoring the high barriers of entry. Mass media outlets, in the interest of time, efficiency, cost, and ratings are very specific as to what they publish and by whom. Social media knows no such discrimination. D. EXAMPLES ABOUND WHERE OWNERSHIP OF THE MEDIA CONSTRAINS INFORMATION. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 268. After assurances by Disney executives that news operations at its then newly acquired ABC News would remain intact, there was a major setback. Brian Ross was investigating a story about pedophiles that may have worked at Disney's Magic Kingdom in Florida. His story never aired. In an interview with National Public Radio made only a few days before the story was killed, Michael Eisner, chairman of Disney, said, "I would prefer ABC not to cover Disney.

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Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 271. The danger with large media marriages that place a small number of companies in control of the marketplace of ideas is not simply an increase in the subscription rate of one's favorite magazine or a cable rate hike, it is the gentile, often unnoticed shift in editorial viewpoints, and news coverage. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 270-271. It's not a question of false reporting. It's a question of not reporting." Instead of introducing the stories or issues into the marketplace of ideas to let the public determine their importance, the media gatekeepers filter them out. As a substitute, the media allows a barrage of mindless celebrity "news," sensationalism, and the ubiquitous water skiing squirrel story. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 276. Media giants have a great impact, not just on the economic well-being of this country, but on the social and political discourse of America. Self-censorship, news coverage reduction, and news content manipulation have occurred. As the number of media mergers increases, the number of independent media organizations decreases. Antitrust analysis of media mergers should not merely focus on the economic aspects of a particular proposed merger; it should go further and consider social and political aspects as well. If these non-economic concerns are not taken into consideration by antitrust regulators, further harm to the marketplace of ideas may continue. It is not the price of chewing gum or bananas at stake here; it is the potential for a monopoly on the marketplace of ideas. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 286. How information is presented and what stories are covered and, often more important, what stories are not covered, has a significant impact on public perceptions and the discussion of public issues. More channels do not necessarily mean that additional views are being expressed. More channels often just mean that the same voices can express their views over and over again. The trend toward corporate consolidation in the marketplace of ideas must be reversed. E. THE CONCENTRATION OF TRADITIONAL MEDIA OWNERSHIP THREATENS THE MARKETPLACE OF IDEAS. Stephen Hallock, (Prof., Journalism, Southern Illinois U.), EDITORIAL AND OPINION, 2007, 147. The danger of media concentration, said the commission, is in its monopolistic nature and thus of the power of editorial voice, a danger that poses just as much of a threat to the free exchange of ideas as does government censorship. "Concentration of power substitutes one controlling policy for many independent policies, lessens the number of competitors, and renders less operative the claims of potential issuers who have no press." Indeed, concentrated ownership lessens the ability of the citizen in a democracy to be heard. II. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE BENEFITS THE MARKETPLACE OF IDEAS. A. DEMOCRACY NEEDS DIVERSITY TO THRIVE. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW, Winter 2002, 247. The free flow of information is the life-blood of democracy. Access to diverse opinions and perspectives enables Americans to participate effectively in our democracy. We depend on the media to provide us with such access and to hold public officials accountable for their policies and actions. James Madison wrote, "[a] popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both." The Founding Fathers enshrined the idea of a free press in the First Amendment. B. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE INCREASES DIVERSITY. Sabrina Niewialkouski, (JD), UNIVERSITY OF MIAMI LAW REVIEW, Spr. 2016, 969. Social media sites, such as Facebook, Twitter, and Instagram, have made the world a more accessible place and provided users with a larger audience to spread their message. Many of these media have over 100 million active visitors per month.

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C. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE SOLVES FOR MEDIA CONCENTRATION. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 5. Judge Stewart Dalzell, who served on the three-judge panel in ACLU v. Reno, explained in his separate opinion, "critics have attacked this much-maligned 'marketplace' theory of First Amendment jurisprudence as inconsistent with economic and practical reality." Dalzell illustrated the critics' stance: Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. These voices dominate - and to an extent, create - the national debate. Individual citizens' participation is, for the most part, passive. Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. The Internet, however, is not yet dominated by Big Business. It does not require deep pockets to have a voice in cyberspace, and therefore: It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country - and indeed the world - has yet seen. Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 367. 368. Almost accidentally, the complex of technologies we call the internet have transformed the structure of society and created possibilities for new forms of social relations, economic practices, knowledge production, and sharing that threaten the assumptions and practices of capitalism. In describing the Arab Spring, Spain's Indignadas, and Occupy Wall Street, Manuel Castells champions the role of "Internet social networks, as these are spaces of autonomy, largely beyond the control of governments and corporations that had monopolized the channels of communication as the foundation of their power, throughout history" Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 367. As Benkler and others summarize, traditional mass media tend to be centralized, one-to-many in form, commercial, professional-produced, and proprietary. Social media tend to be decentralized, many-to- many, nonmarket, peer-produced, non-proprietary, open-source platforms, commons based, and free or inexpensive in access and distribution. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, 65. There are many positive features of the democratization of information. In the pre-internet age, traditional news media outlets - such as the Wall Street Journal or CBS News - served as gatekeepers of national news information. The print and broadcast media's monopoly on access to information limited the public's ability to decide for itself what was newsworthy. Conservatives also often complained that gatekeeper institutions such as CBS News improperly injected a liberal editorial slant on ostensibly neutral news reports. The rise of the internet has ended the monopoly exercised by the traditional news media and in the process it has made more information available to more people than ever before. The range of news sources on the internet covers all ends of the ideological spectrum from Breitbart to the Huffington Post. The democratization of news has even extended to journalistic activities. The internet has empowered ordinary Americans to create their own news platforms and disseminate information for free on the internet. D. TRUTH IS MORE EASILY FOUND WHEN ALL CAN CONTRIBUTE. Sabrina Niewialkouski, (JD), UNIVERSITY OF MIAMI LAW REVIEW, Spr. 2016, 988. The farther the idea spreads, and to the most people, the better informed the public will be and the easier it will be to find the truth. Additionally, social media is the most effective and least costly way to distribute information and ideas to the masses of people. Anybody with an Internet connection can register a free account with a social media provider and proceed to share her thoughts with the rest of the online universe if she so chooses. Social media reduces the barriers of who can enter into the marketplace of ideas, and where they can enter it. The contributions on social media are global--social media knows no borders or distances; they result in the most diverse opinions the market could possibly offer.

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E. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE PROVIDES AN OPEN FORUM. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 698. Facebook does not view itself as a media company or as being in the content distribution business. Facebook itself does not write the news stories its users read and share. Rather, Facebook views itself as "an open technology platform that relies on media publishers and its users to share accurate information." As such, Facebook regards itself as a nonpartisan information source, "a neutral place where people can freely post, read and view content" and where "people can share all opinions." F. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE SAVES THE MARKETPLACE OF IDEAS. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 642. Social media may be the purest application of the "Marketplace of Ideas" theory. Social media takes the essential element of freedom of speech and provides a forum for expression with greater breadth and depth than ever before. Anyone with an Internet connection is able to register a free account with a social media provider, which then allows the user to express his thoughts and share his comments on any topic. Social media embraces several core Marketplace concepts: (1) the competition of ideas; (2) the public at large as the best provider of ideas; and (3) the value of exposure to contradictory points in the search for truth. Sabrina Niewialkouski, (JD), UNIVERSITY OF MIAMI LAW REVIEW, Spr. 2016, 971. Social media promotes the "marketplace of ideas" theory by "articulating substantive ideas and criticisms concerning policies, practices, and current events that may be protected in the workplace," and sharing them with their fellow employees, supervisors, employers, or even the general public.

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NEGATIVE CASE #2: THE BENEFITS OUTWEIGH THE HARMS The thesis of this case is that the social media as a news source benefits the marketplace of ideas in many essential areas of public life. When those advantages are weighed against the disadvantages, it becomes clear that the advantages are more significant. Many affirmative cases will focus on the relatively minor problems associated with social media while ignoring the life-saving benefits that these technologies offer to citizens around the world. This case will focus on those benefits while also showing that the harms are minimal. CONTENTIONS: I. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE PROVIDES AN ALTERNATIVE TO GOVERNMENT CONTROL OF THE MEDIA. A. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE EXPOSES HUMAN RIGHTS ABUSES IN CLOSED SOCIETIES. Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 154. Social media also expands access to evidence of human rights abuses beyond that offered by the mainstream media and non-government organizations (NGOs), and penetrates veils of secrecy thrown up by repressive regimes. Technology has allowed us to see into many parts of the world that were previously shrouded by oppressive governments or geographical boundaries. Anyone in the vicinity of an event with audacity and a camera can document brutality and spread it on the Internet. And the proliferation of camera phones means this information often can be disseminated instantaneously. Cara Buckley, (Staff), THE NEW YORK TIMES, July 9, 2017. Retrieved Dec. 15, 2017 from Nexis. Some of the most harrowing and urgent reporting these days comes from everyday citizens armed with smartphones, and three new documentaries explore the breadth of their reach. ''City of Ghosts'' (the only one so far scheduled for release, on Friday, July 7) follows members of the Syrian watchdog group Raqqa Is Being Slaughtered Silently as they chronicle the Islamic State's atrocities. ''Cambodian Spring'' tells of a Buddhist monk who defies the authorities by standing with the poor, and ''Copwatch'' looks at American activists training others to monitor the police. All of these citizen journalists are driven by the conviction that the camera is often mightier than the sword. Stacey Steinberg, (Prof., Law, U. Florida College of Law), KENTUCKY LAW JOURNAL, 2017, 434. Online platforms like Twitter and Facebook contribute to "a process of 'agenda setting' that drives the news media." When Boco Haram terrorists kidnapped nearly 300 girls in Nigeria, many turned to online platforms like Twitter and Facebook not only to express outrage, but also to seek information. # BringBackOurGirls, a hashtag originating from a Nigerian attorney, was used over two million times in 2014 on Twitter. First Lady Michelle Obama, Secretary of State Hillary Clinton, and entertainers Amy Poehler, Chris Brown, and Mary J. Blige were among the users using the hashtag. While many of the girls are still missing, the hashtag # BringBackOurGirls is an example of one hashtag uniting millions of individuals into a social movement. Daniel Joyce, (Prof., Law, U. of New South Wales), INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, 241. Twinned with the informational role of witnessing is the notion of the witness as the giver of truthful evidence, upon which dispute resolution and justice processes have relied for their integrity and in terms of proof. This evidentiary dimension is especially important in the international realm where evidence is so hard to come by -- a process often resisted by states and perpetrators. B. THE ARAB SPRING PROVIDES AN EXAMPLE OF THE IMPORTANCE OF USING SOCIAL MEDIA AS A NEWS SOURCE. Stacey Steinberg, (Prof., Law, U. Florida College of Law), KENTUCKY LAW JOURNAL, 2017, 434. Social media offers users more than a means to express an opinion. It provides news and information, especially in areas of conflict and unrest. "A staggering 94.29% of Tunisians surveyed reported getting their news and information on events during the civil unrest in early 2011 from social media resources like Facebook, Twitter, blogs, etc., while 88.10% of Egyptians acknowledged doing so." For marginalized individuals, this news source offers something not previously available to those living in repressive societies. "Evgeny Morozov wrote that 'Iran's Twitter Revolution revealed the intense Western longing for a world where information technology is the liberator rather than the oppressor.'"

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Daniel Joyce, (Prof., Law, U. of New South Wales), INTERCULTURAL HUMAN RIGHTS LAW REVIEW, 2013, 254. The political unrest experienced from early 2011 onwards in the Arab World, particularly in Egypt, Tunisia, Libya and Syria, has focused attention on the role played by social media in the emergent movements for change. It is clear that social media has had a significant catalytic effect, but as Sarah Joseph has argued, "social media alone did not cause the revolutions and demonstrations," rather it was an important tool for those dissatisfied with corruption, oppression, social inequality and living standards. It was a tool used in combination with traditional forms of mass protest and demonstration. Matt Duffy, (JD), BERKELEY JOURNAL OF MIDDLE EASTERN & ISLAMIC LAW, 2014, 1. Both public and private state-controlled media in these countries generally ignored or downplayed the swarming protests and other unrest. But social media sites such as Twitter, Facebook, and YouTube provided the activists a forum to publicize and organize their movements. The use of social media to circumvent state-controlled outlets has brought renewed attention to media regulations in the region, which have for decades imposed widespread censorship and tightly restricted information. Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 367. 370. Though existing smartphone apps provide access to any number of social media platforms, three social media platforms have emerged in recent protest activities as particularly important. The first is the micro-blogging platform, Twitter. Twitter came to prominence as a tool for protesters to organize and spread word of their protest in the summer of 2009 with widespread and often violent protests in Iran's capitol. Some went so far as to call this event the "Twitter Revolution" Amy Cattle, (JD), DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW, Winter 2016, 422. As evidenced by the innovative tools used by Egyptian activists, the development of the Internet has had a profound impact on the scope of the basic right to freedom of expression, which was first internationally recognized in the 1948 Universal Declaration of Human Rights (UDHR). That the UDHR's drafters likely could not have imagined the technologies that facilitate the present-day freedom of expression is of no moment; they protected a broad right "to seek, receive and impart information and ideas through any media and regardless of frontiers." Amy Cattle, (JD), DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW, Winter 2016, 446. As previously discussed, online tools such as Facebook, Twitter, and YouTube were utilized by Egyptian activists to spread democratic ideals, mobilize support, and organize demonstrations - uses that critically expanded the scope of the social media sites. C. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE OFFERS FREEDOM OF EXPRESSION WHERE IT OTHERWISE WOULD NOT EXIST. 1. Russia: Social media offers the only alternative to state-controlled media. Karina Alexanyan, (Analyst, Berkman Center for Internet & Society, Harvard U.), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 263. The uses of the Internet for offline activism before the dramatic events surrounding the 2011-2012 election cycle provide compelling examples of Russians mobilizing their active online media networks to address specific issues that have a concrete effect on everyday life. These pre-2012 actions are united by their non-ideological nature, sharing an overall concern with corruption, abuse of power and privilege, and a lack of official accountability. This understanding is supported by a 2010 study published by the Berkman Center for Internet and Society at Harvard University, which found that the leading politically oriented YouTube videos posted by individuals in 2009-2010 consistently addressed issues of corruption, accountability and lack of transparency, "pushing back against abuse of power by business and finances elites, the government and the police".

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2. China: Social media offers the only alternative to state-controlled media. Lei Guo, (Ph.D. Candidate, Journalism, U. Texas at Austin), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 334-335. China features a unique Party-State media system, in which the government maintains control of the fundamental press structure, and ordinary citizens are not allowed to launch their own alternative media in the traditional mediascape. In recent years, the emergence of diverse digital communication tools has helped partially loosen the controlled speech environment. A growing number of Chinese citizens began using SMS, blogs, BBSs, and more recently Weibo to break news, expose government wrongdoings, and share their thoughts on a variety of public issues. Moreover, the collective of China's citizen journalists serves as an independent media watchdog, effectively pressuring the mainstream news media to investigate and report on social controversies that would otherwise be censored or under-reported. Lei Guo, (Ph.D. Candidate, Journalism, U. Texas at Austin), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 335. Weibo has risen rapidly to become one of the most popular online communication platforms in contemporary China. The latest CNNIC1 statistical report shows that Chinese Weibo users exceeded 300 million by the end of 2012, accounting for more than half of the internet users in the country. The report also described Weibo as "the center for online public opinion". 3. Iran: Social media offers the only alternative to state-controlled media. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 10-11. In June 2009, Iranians used this global marketplace of videos to share their pain with humanity. After Iran's dubious presidential election, the people of Iran took to the streets to show their frustration with the governing of their country. The result was bloodshed. We were never supposed to see this bloodshed. The Iranian government banned all foreign journalists from covering the rallies so that outsiders could not witness the wretched terror that the Iranian people were experiencing. The Iranian people, however, relied on the power of YouTube to share a video capturing the slaying of an innocent woman during the protests. Because of YouTube, Neda Agha-Soltan became the face of Iran's struggle. Twitter was another critical marketplace during the Iranian protests. The day the protests began, the state-owned telecommunications company "simply pulled the plug, halting all internet communication with the outside world." Twitter, however, is unlike traditional websites. It has "a completely open architecture that allows users to both send and receive messages on a variety of platforms - cell phones, Blackberries and, of course, other Web sites." Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 13. Twitter users such as PersianKiwi and Change for Iran provided information that the Iranian government desperately tried to conceal with propaganda and lies. When the government later became aware of the spreading of facts on Twitter, they responded by creating fake accounts to further their "campaign of misinformation" in the Twitter marketplace. "The best test of truth is the power of the thought to get itself accepted in the competition of the market." "Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?" When Truth and Falsehood grappled on Twitter, the lies of the Iranian government were quickly drowned out by the truth of the Iranian people. Virtual marketplaces were vital during the Iranian protests; but their significance goes beyond one culture. 4. Palestinian West Bank: Social media holds military forces accountable. Nik Gowing, (Staff, BBC World News), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 317. Now on the West Bank, there is the extraordinary sight of all sides involved in many incidents deploying video cameras to record the behaviour of each other, whether Palestinian or Israeli. Almost nothing goes unrecorded by social media. However uncomfortable some soldiers or activists find this, it is creating a new level of both reputational vulnerability and accountability for all sides, whether Israeli or Palestinian. Nik Gowing, (Staff, BBC World News), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 317. In 2007 the Israeli Human Rights group B'Tselem decided to issue a large number of video cameras to Palestinians of all ages on the West Bank. The aim was to monitor 24/7 the activities of the Israeli Defence Force (IDF) against Palestinians and make them more accountable, especially legally. Day after day B'Tselem's "Shooting Back" programme has produced often damning footage about the behaviour of IDF soldiers. Most graphic was the shooting in the legs of a Palestinian activist at an Israeli roadblock (posted online 20th July 2008). The video of the shooting led to a military investigation of the commander's actions.

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II. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE OFFERS MAJOR BENEFITS TO SOCIETY. A. SOCIAL MEDIA PROVIDES VITAL INFORMATION DURING NATURAL DISASTERS. Trevor Knoblich, (Project Dir., Frontline SMS Media), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 116. Many people have suggested both the "global" and hyperlocal nature of Twitter were useful. For example, following Hurricane Sandy, Choire Sicha, founder of New York City news site The Awl, was quoted in The New York Times' Media Decoder blog as saying, "Twitter was phenomenally useful microscopically—I was literally finding out information about how much flooding the Zone A block next to me was having, hour by hour—and macroscopically, too—I didn't even have to turn on the TV once the whole storm," he wrote. Citizens, then, can create an aggregate but still highly nuanced sense of ground- level realities in breaking news events. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 628. Over the past few years, social media has become a useful way to disseminate information to a large group of people with little cost in terms of time and money. Services such as Facebook, YouTube, Twitter, Flickr, and WordPress are no longer used exclusively by individuals for social networking or entertainment purposes. Groups and organizations - both public and private - are increasingly using social media sites as a way to inform interested individuals of ongoing developments, while allowing the public at large to instantly provide their own feedback. In an emergency event or a public health crisis, the ability of organizations such as the Centers for Disease Control and Prevention (CDC) or the Federal Emergency Management Agency (FEMA) to rapidly disseminate useful information may mitigate the severity of a disaster, prevent damage to property, and save lives. Social media, when properly used by these organizations, has tremendous potential to shape the way our nation handles emergencies and public health crises. Donald Matheson, (Prof., Media and Communication, U. Canterbury), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 99. Many accounts from those affected by two large earthquakes to hit the New Zealand city of Christchurch in 2010 and 2011 begin with their mobile phones. These devices, along with the internet and in particular the social media they connect to, are now so much part of how many people interact every day that they are now a significant part of how disaster is mediated.

Trevor Knoblich, (Project Dir., Frontline SMS Media), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 113. Citizen journalists have demonstrated a variety of creative solutions to communications challenges when documenting large-scale crisis events. These solutions have included adapting emerging social media platforms, organizing information in new ways, and even shifting the use of any given platform as access becomes limited. Hurricane Katrina and the 7 July 2005 London transit bombings were captured vividly on Flickr and YouTube. The series of protests in Tunisia, Egypt, Libya and elsewhere, beginning in December 2010, prompted global conversations with those affected using Twitter and Facebook. In October 2012, as Hurricane Sandy bore down on the East Coast of the United States, citizens began to adapt yet another tool for journalistic purposes: the mobile photo sharing application Instagram. As new tools for capturing text, photographs and videos emerge, citizens around the world have increasing opportunities to participate in documenting, sharing, and providing nuance to breaking news events. B. COP WATCH OFFERS AN EXAMPLE OF THE BENEFICIAL USES OF SOCIAL MEDIA AS A NEWS SOURCE, OFFERING A RESPONSE TO INSTANCES OF POLICE BRUTALITY. Mary Bock, (Prof., Journalism, U. Texas at Austin), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 351. Cop-watching exemplifies this sort of collective. This emerging branch of citizen video production asserts itself as a check on police authority. Participants post videos of traffic stops, public arrests, or other publicly visible police activity to websites that contextualize them as police accountability activism. Some participants become involved as part of activist efforts. Others become "accidental" cop watchers by using their smartphone during an emergency, or, in many cases, during their own encounters with police. The latter often adopt activist routines.

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Mary Bock, (Prof., Journalism, U. Texas at Austin), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 351. One cop-watching blog is devoted almost entirely to videos of police officers demanding that a photographer stop filming, or grabbing at cameras. Still, no matter what is captured on tape, the very act of photographing officers at work is considered by activists to be an effective preventative measure, protecting the rights of people during a police encounter. It purports to provide a counterpoint to traditional journalism's coverage of police activity, which, as many scholars have reported, is often institutionally aligned with the interests of the powerful. Poh Teng, (Staff), THE NEW YORK TIMES BLOGS, Aug. 3, 2015. Retrieved Dec. 15, 2017 from Nexis. Mr. Whitt reasoned that movements like Copwatch had less need to fully engage with mainstream media. Cheaper video cameras and social media have been game changers, and the group could now disseminate information about violent police encounters in black communities on its own. It could bypass the editorial judgments of news media. C. THE #METOO TWITTER CAMPAIGN DEMONSTRATES HOW SOCIAL MEDIA CAN PLAY A VITAL ROLE IN RESPONDING TO SEXUAL HARASSMENT. Levi Sumagaysay, (Staff), MERCURY NEWS, Dec. 6, 2017. Retrieved Dec. 15, 2017 from Nexis. The hashtag that helped the movement, #MeToo, has put sexual harassment and assault front and center -- online and offline. It’s been quite a year for Twitters hashtag. It turned 10 over the summer. Now the women helped along by a hashtag who have set off a cultural reckoning over sexual harassment have been named Times person of the year. Abby Ohlheiser, (Staff), WASHINGTON POST, Oct. 17, 2017, C1. As a campaign to show the volume of women who have survived sexual harassment or assault, #MeToo has succeeded. The question is: Will it actually change anything? Lisenbee believes she is seeing things change, at least in her own online communities, and among the women she knows, where topics such as sexual assault and harassment had not been discussed this way before. "The conversations are happening, that's a change," she wrote to The Washington Post in a follow-up message. "If assaulters know that men/women will no longer suffer in silence, it could deter assaults. Also, it could encourage those who have been assaulted to seek help." More important, she added, "if this hashtag helps women relieve themselves of the burden of carrying this around, then that is enough." SUNDAY TRIBUNE, Oct. 22, 2017. Retrieved Dec. 15, 2017 from Nexis. #MeToo, the viral hashtag, seemed to succeed almost by magic. It appeared, it spread, it brought new meaning to an important issue, and in a week, it will no longer be news. For Burke, "Me Too" is a strategy, one that has been around before the hashtag, and one that will be there after #MeToo fades away. "What the viral campaign did is, it creates hope. It creates inspiration. People need hope and inspiration desperately. But hope and inspiration are only sustained by work." One of the things that concerns Burke about the spread of #MeToo is whether those who helped to inspire women to disclose their stories of survival are prepared for what comes next. Levi Sumagaysay, (Staff), MERCURY NEWS, Dec. 6, 2017. Retrieved Dec. 15, 2017 from Nexis. In this case, the change #MeToo has helped bring about was already on its way, what with the calling out of sexual harassment in the tech industry by people such as Susan Fowler, the former Uber engineer whose blog post in February touched off a series of events that culminated in Uber CEO Travis Kalanick being forced out over the summer. Recent developments in the wake of #MeToo include the ousters or resignations of journalists Charlie Rose and Matt Lauer, actor Kevin Spacey and longtime Congressman John Conyers Jr. of Michigan. Levi Sumagaysay, (Staff), MERCURY NEWS, Dec. 6, 2017. Retrieved Dec. 15, 2017 from Nexis. Twitter said Wednesday that there have been more than 3.2 million tweets about #MeToo, which began to trend in mid-October after reports about sexual harassment and assault accusations against movie mogul Harvey Weinstein. At the time, Facebook said 4.7 million of its users took part in the me too conversation on the social network in 24 hours. The #MeToo hashtag was popularized in October by actress Alyssa Milano, who encouraged women to reply me, too if they had been sexually harassed or assaulted. The phrase was coined more than a decade ago by activist Tarana Burke, a survivor of sexual assault who has long worked on the issue, especially with young girls. SUNDAY TRIBUNE, Oct. 22, 2017. Retrieved Dec. 15, 2017 from Nexis. Viral campaigns like #MeToo can work like interventions in the news cycle. This one emerged after weeks of growing accusations of sexual assault against Weinstein, and has helped to redirect a conversation about one man towards the women who have survived sexual harassment or assault.

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III. THE PROBLEMS CAUSED BY THE USE OF SOCIAL MEDIA AS A NEWS SOURCE ARE EXAGGERATED. A. THE PROBLEMS ASSOCIATED WITH THE “FAKE NEWS” PHENOMENON ARE EXAGGERATED. 1. Social media companies have already taken action to eliminate “fake news.” Andrew Higgins, (Staff), THE NEW YORK TIMES, Nov. 25, 2016. Retrieved Dec. 15, 2017 from Nexis. Google announced that it would ban websites that host fake news from using its online advertising service, while Facebook's chief executive, Mark Zuckerberg, outlined some of the options his company was considering, including simpler ways for users to flag suspicious content. Jessica Guynn, (Staff), USA TODAY, Dec. 16, 2016, 1B. Facebook is taking steps to weed out fake news and hoaxes, addressing the growing controversy over its role in the spread of misinformation on the Internet that sharpened political divisions and inflamed discourse during the presidential election. The giant social network said Thursday it plans to make it easier to report a hoax and for fact-checking organizations to flag fake articles. It's also removing financial incentives for spammers and plans to pay closer attention to other signals, such as which articles Facebook users read but then don't share. Last month, Facebook barred fake news sites from using its ad-selling services. Associated Press, LONG ISLAND BUSINESS NEWS, Dec. 15, 2016. Retrieved Dec. 12, 2017 from Nexis. Facebook is taking new measures to curb the spread of fake news on its huge and influential social network, focusing on the "worst of the worst" offenders and partnering with outside fact-checkers to sort honest news reports from made-up stories that play to people's passions and preconceived notions. 2. The financial motives driving “fake news” have been eliminated. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 699. One of Facebook's initial efforts to combat fake news on its site involves making it easier for Facebook users to report fake news stories appearing on the site. Facebook is also partnering "with outside fact- checking organizations to help it indicate when articles are false," who will have the ability to "label stories in the News Feed as fake." Facebook will also be "changing some advertising practices to stop purveyors of fake news from profiting from it." Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, 2017, 700. Based on its finding that "a lot of fake news is financially motivated," Facebook also "plans to impede the economics of spreading fake articles across the network." Fake news providers often make money when people click on links to their articles, some of which are made to look like they're from well-known news organizations. Once users click on these links, they are taken to third-party websites, which often consist largely of ads. Facebook will examine the links to stories to see if the third-party websites are "mostly filled with advertising content - a dead giveaway for spam sites - or to see whether a link masquerades as a different site, like a fake version of The New York Times." 3. The influence of “fake news” is exaggerated. Neil Irwin, (Staff), NEW YORK TIMES, Jan. 26, 2017, A3. There is some good news in that more people reported having heard, and believed, the true statements than the false statements. Only 15.3 percent of the population recalled seeing the fake news stories, and 7.9 percent recalled seeing them and believing them. 4. “Fake news” did not change the outcome of the election. Michael Sainato, (Staff), NEW YORK OBSERVER, Feb. 6, 2017. Retrieved Dec. 12, 2017 from Nexis. Allcott and Gentzkow concluded, "Our data suggest that social media were not the most important source of election news, and even the most widely circulated fake news stories were seen by only a small fraction of Americans. For fake news to have changed the outcome of the election, a single fake news story would need to have convinced about 0.7 percent of Clinton voters and non-voters who saw it to shift their votes to Trump." They added, "For fake news to have changed the outcome of the election, a single fake article would need to have had the same persuasive effect as 36 television campaign ads."

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5. The best answer to falsity is more speech. Daniel Ho, (Prof., Law, U. Virginia School of Law), NEW YORK UNIVERSITY LAW REVIEW, Oct. 2015, 1167-1168. The more common argument from truth - the argument from the marketplace of ideas - is that unrestricted speech, as a matter of institutional design, is epistemically superior to the most common alternatives. One canonical formulation comes from Justice Brandeis, who in his memorable concurring opinion in Whitney v. California opined that where there is speech that is false, fallacious, or evil, "the remedy to be applied is more speech, not enforced silence." B. SOCIAL MEDIA OFFERS ITS OWN CORRECTIVE FOR RACISM AND HATE SPEECH. Stacey Steinberg, (Prof., Law, U. Florida College of Law), KENTUCKY LAW JOURNAL, 2017, 435. One of the most well-recognized hashtags is # BlackLivesMatter, which was created in 2013. The hashtag was rarely used until a police officer in Ferguson, Missouri, shot an unarmed Black teenager named Michael Brown in the summer of 2014. The social media campaign that followed is credited with raising awareness and educating the public with regard to police brutality in American cities. This public outcry highlighted the need for police reform and amplified the voices of traditionally marginalized individuals. Bryan Adamson, (Prof., Law, Seattle U. School of Law), HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE, Spr. 2016, 272. As the digital divide has narrowed, Black social media venues have served trenchant responses to the explicit and implicit biases in media coverage. Remarkably, Twitter is the site on which Blacks are forging a new social identity, responding to mainstream media's racist and racialized narratives, and holding them to account for those representations. Twitter has become a platform for dissent, discussion, breaking news and critically, news trends. "Black Twitter," specifically, provides an online culture of Black intellectuals, trendsetters, and talking heads, giving Black users an arena to perform their racial identities. Popular Twitter hashtags "have transformed into media-friendly monikers," capturing "the zeitgeist of the online world." In doing so, Black twitter users shone a much-needed light on the media's tendency--with an astounding consistency--to perpetuate negative racial stereotypes when covering stories involving African Americans. C. TERRORIST USE OF SOCIAL MEDIA ACTUALLY FACILITATES THE FIGHT AGAINST TERRORISM. Rachel VanLendingham, (Prof, Law, Southwestern Law School), CARDOZO LAW REVIEW, Oct. 2017. Retrieved Dec. 15, 2017 from Nexis. Despite such congressional rhetoric tying social media companies to material support to terrorism, to date no social media platform has faced criminal prosecution in the United States for hosting third-party terrorism-related content on their platforms or for allowing particular groups to maintain accounts. This lack of prosecutorial effort is odd at first glance, given the statements by the Assistant Attorney General for National Security at the U.S. Department of Justice suggesting such prosecution. One strong reason for this reticence could be the immense benefit the intelligence community gains by open use of social media by terrorist groups; the U.S. security apparatus prefers to mine social media networks for intelligence, even going so far as asking providers to not suspend specific accounts.

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NEGATIVE CASE #3: FREEDOM OF SPEECH The thesis of this case is that the social media as a news source supports, rather than undermines, the marketplace of ideas because it advances the freedom of speech. First Amendment freedom of speech involves not only the right to speak, but the right to be a consumer of speech. OBSERVATIONS: I. THE MARKETPLACE OF IDEAS IS THE MODEL FOR THE CREATION OF THE FIRST AMENDMENT. A. THE PURPOSE OF THE FIRST AMENDMENT WAS TO PRESERVE THE MARKETPLACE OF IDEAS. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 5. "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail ... ." Justice Byron White continued, "it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences ... ." W. Wat Hopkins has noted that from 1919 to 1995, twenty-four of the forty-nine justices who served on the Supreme Court used the marketplace of ideas metaphor at least once. (ellipsis in original) Robin Wilson, (Prof., Law, U. Maryland), HANDBOOK OF CHILDREN, CULTURE, AND VIOLENCE, 2005, 292. The [Free] Speech Clause occupies a privileged place among the guarantees of the Bill of Rights. It is the key to an open marketplace of ideas that, in turn, is critical to a functioning democracy. The marketplace of ideas, through which good speech will presumably overcome bad speech, is a prerequisite for an informed citizenry that is seen as essential to democracy. B. THE U.S. SUPREME COURT HAS REPEATEDLY USED THE MARKETPLACE OF IDEAS METAPHOR TO DEFEND AND EXPLAIN THE FIRST AMENDMENT. Carol Herdman, (J.D. Candidate), CAPITAL UNIVERSITY LAW REVIEW, Summer 2011, 754. The "marketplace of ideas" concept, first advanced by Justice Oliver Wendall Holmes, supports the notion that if given information and alternatives, Americans can distinguish the good from the bad. Holmes wrote: "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market." The Court has made this argument in numerous cases, and it still stands as a solid principle of the First Amendment. Joseph Blocher, (JD, Yale Law School), DUKE LAW JOURNAL, Feb. 2008, 823. If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the "marketplace of ideas" is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. II. FIRST AMENDMENT GUARANTEES OF FREEDOM OF SPEECH ARE CENTRAL TO ALL LIBERTY. A. FREEDOM OF EXPRESSION IS THE BASIS FOR ALL OTHER HUMAN FREEDOMS. Anne Dupre, (Prof., Law, U. Georgia School of Law), SPEAKING UP: THE UNINTENDED COSTS OF FREE SPEECH IN PUBLIC SCHOOLS, 2009, 4. Justice Benjamin Cardozo described freedom of speech as "the matrix, the indispensable condition of nearly every form of freedom." When the framers of the Constitution drafted the Bill of Rights to articulate the areas where government could not interfere with individuals, the provision protecting freedom of speech appeared to speak in absolutist terms: "Congress shall make no law abridging the freedom of speech."

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B. FREEDOM OF EXPRESSION IS ESSENTIAL TO THE DEVELOPMENT OF HUMAN PERSONALITY. Edward Eberle, (Prof., Law, Roger Williams U. School of Law), ARIZONA STATE LAW JOURNAL, Fall 2004, pp. 959-960. We might also rightly consider free speech to be the preferred value of the Constitution because free thought and dissemination of ideas is crucial to the development of human capacity and human personality and the functioning of democratic society. Free speech is the most direct expression of human personality in society. Communicative development is constitutive expression of human personality. Free speech is thus vital to human identity and human dignity because communication is an indispensable element of who we are as a people and how we constitute ourselves. In these respects, we can say free speech is essential because it is crucial to the process of human development and is thereby directed, idealistically, to the hope of realizing a more capable and better person. CONTENTION: I. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE PRESERVES FREEDOM OF SPEECH. A. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE ALLOWS ANYONE TO BE HEARD. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 25. While people from all around the world now use the Internet to share their messages with humanity, what is of special significance is that people are often sharing their messages in virtual marketplaces, because that is where their messages are most likely to be heard. By posting the video of Neda Agha- Soltan's slaying on YouTube, the pain of the Iranian people could be shared with the President of the United States. Virtual marketplaces are helping us create the "Good Society" because they allow us to come together as "one species, one world." Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 24. What is most incredible about virtual marketplaces is that any person can instantly share any information with the entire world by entering these popular marketplaces; the barriers to entry that exist in other forms of media (such as television, radio, or newspapers) are absent here. As Einstein wrote in 1943, "Under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases quite impossible, for the individual citizen to come to objective conclusions and to make intelligent use of his political rights." B. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE PROVIDES ACCESS TO DIVERSE OPINIONS. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 643. The Internet and social media reduce barriers to entry in the Marketplace and consequently allow a greater number of people to contribute their ideas to the market. However, it is not just a high volume of people that the Marketplace seeks. Rather, the Marketplace seeks diverse opinions and beliefs. By expanding exposure and contribution of ideas on a global scale, social media is able to encompass the widest possible range of diverse opinions. The Internet helped remove the preexisting barriers that prevented one from expressing himself through speech, and it also removed barriers to that speech being heard by others. C. SOCIAL MEDIA ALLOWS AN ESCAPE FROM THE GATEKEEPERS OF SOCIETY. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 643. The role of traditional mass media entities like newspapers and television, regardless of their acceptance of a wide range of viewpoints, has always troubled pure Marketplace theorists. Specifically, mass media entities, in the interest of time and limited resources, have to act as gatekeepers with regards to content and quality of the issues discussed. Traditional mass media entities still have a significant impact on the quality and content of discussion topics. However, because the Internet and social media are widely available to the public on a global scale, they are able to draw from mass media, broaden exposure to issues up for debate, discuss issues that mass media entities do not raise, and generate a greater number and a more diverse selection of ideas. By stripping control of information from traditional mass media and increasing the public's control over content, the Internet and social media may help contribute to the development of the body of informed citizens that the traditional Marketplace theory seeks.

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Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 366-367. Individuals with mobile panmediation smartphones become decentered knots of world-making that displace traditional mass media institutions as internet platforms enable individuals to reach millions of others and to engage in "effective, large-scale cooperative efforts—peer production of information, knowledge, and culture". Prominent examples of crowd-driven internet platforms include Twitter, Facebook, YouTube, Reddit, Vine, Tumblr, Instagram, Vimeo, Eventbrite, Wikipedia, Linkedln, the GNU Project, Linux, Pinterest, and Yelp. Kevin Deluca, (Prof., Communication, U. Utah), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 367. 368. As Benkler, Castells, and others note, this radical decentralization puts individuals outside of easy institutional control, enabling efforts that bypass political and corporate authorities. Throughout The Wealth of Networks, Benkler celebrates how internet platforms make it possible for individuals to operate outside of commercial markets and proprietary models: "Ubiquitous low-cost processors, storage media, and networked conductivity have made it practically feasible for individuals, alone and in cooperation with others, to create and exchange information, knowledge, and culture in patterns of social reciprocity, redistribution, and sharing, rather than proprietary, market-based production. The basic material capital requirements of information production are now in the hands of one billion people around the globe who are connected to each other more or less seamlessly. D. SOCIAL MEDIA GIVES POWER TO THE POWERLESS. Sarah Joseph, (Prof., Law, Monash U.), BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2012, 175. While acknowledging the potential dark side of social media, Zeynep Tufekci postulates that the Internet, including social media, offers the opportunity for a people's counterweight in the global political arena, which is otherwise dominated by remote entities such as superpower States, multinational corporations, and international organizations like the International Monetary Fund, the World Bank, and the U.N. In her words, "it has become very hard for citizens of any nation-state to confront these powerful global institutions or to start to meaningfully address the multiple global crises facing humanity," such as climate change, ongoing unpopular wars against terror, and financial collapse. Sabrina Niewialkouski, (JD), UNIVERSITY OF MIAMI LAW REVIEW, Spr. 2016, 970. Most importantly, however, social media allows the everyday citizen to share her perceptions with a massive audience--a privilege that was previously extended only to those with enough power to have access to traditional forms of media. E. THE USE OF SOCIAL MEDIA AS A NEWS SOURCE IS THE LIVING EMBODIMENT OF THE MARKETPLACE OF IDEAS. Peter Maggiore, (JD candidate, U. Michigan Law School), MICHIGAN TELECOMMUNICATIONS AND TECHNOLOGY LAW REVIEW, Spr. 2012, 643. The concept of the competition of ideas on the open market is the key component to the Marketplace theory, and social media wholly embraces the competition of ideas and its test for truth. Scholars have long championed an idealized version of the Internet as the living embodiment of the Marketplace. The Internet and social media allow the user to generate content that can be distributed locally and globally with little to no cost to the user. By enabling more individuals to express their views and by giving the user's speech or expression access to a larger audience, social media expands the test for truth. An idea or statement gaining nearly worldwide acceptance on an open and unregulated market of ideas is strong evidence of the truth of the proffered idea or statement.

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Index to Evidence & Evidence 4. Harry Bruinius, (Staff), THE CHRISTIAN SCIENCE MONITOR, Nov. 19, 2016. Retrieved Dec. 15, 2017 from Nexis. At the same time, too, the I. The use of social media as a news source undermines the proliferation of unreliable information has approached what many consider marketplace of ideas. to be near-crisis proportions. In addition to the frustration many have felt A. Fake news abounds in social media. (1-8) with the mainstream press, there is growing concern social media, B. Fake news is not self-correcting. (9-11) designed to entice engagement rather than offer factual information, has spawned the viral spread of deliberately misleading and fake news. C. Social media firms offer a profit motive for the creation of take news. (12-16) 5. Jessica Guynn, (Staff), USA TODAY, Dec. 19, 2016, 3B. It turns out D. Use of social media as a news source creates public confusion. that by creating the world's most popular place to share, Facebook also created the world's most efficient delivery system for fake news. Some 170 (17-22) million people in North America use Facebook every day. Nearly half of all E. Truth does not automatically win in the marketplace of ideas. adults in the U.S. say they get their news from Facebook. Fake news (23-26) creates significant public confusion about current events, with nearly one- F. The use of social media as a news source undermines fourth of Americans saying they have shared a fake news story, according democracy. (27-33) to a Pew Research Center survey. II. The use of social media as a news source does not 6. Michael Sainato, (Staff), NEW YORK OBSERVER, Feb. 6, 2017. undermine the marketplace of ideas. Retrieved Dec. 12, 2017 from Nexis. BuzzFeed conducted their own study A. Concentration of traditional media is a problem. (34-36) that claimed fake news "outperformed" real news in the final three months of the presidential election. B. Media concentration undermines the marketplace of ideas. (37- 38) 7. Petra McGillen, (Prof., German Studies, Dartmouth College), NEW C. The use of social media as a news source benefits the YORK OBSERVER, Apr. 7, 2017. Retrieved Dec. 15, 2017 from Nexis. marketplace of ideas. (39-41) Today's fake news stories are also written from inside a closed mass media system. It's one of the main reasons why these yarns - even the D. Social media firms are adequately dealing with the problem of absurd ones - seem credible enough to get picked up: They recombine fake news. (42-49) news bits, names, images, people and sites that we have already seen in E. Social media is helpful in emergencies. (50-52) similar contexts. Once this backdrop of credibility has been established, the sensational, made-up elements can be introduced all the more Evidence convincingly. 8. Rachel VanLendingham, (Prof, Law, Southwestern Law School), 1. Mike Snider, (Staff), USA TODAY, Jan. 16, 2017, 3B. Fake news is CARDOZO LAW REVIEW, Oct. 2017. Retrieved Dec. 15, 2017 from rampant on social media with about one-third (32%) of Americans saying Nexis. A 2016 Pew Research Center study found that a "majority of U.S. they often see made-up political news stories there, according to the Pew adults - 62% - get news on social media, and 18% do so often." Finding Research Center. Even more, 63%, say that fake news creates "great that Facebook's reach of 67% of American adults makes it "by far the confusion" among the public about current events, the survey found. An largest social networking site," the study concluded that the "two-thirds of additional 24% said fake news causes some confusion. Why could this be Facebook users who get news there" equates to a staggering 44% of the so important? Because about half (47%) of all Americans get some news general population of the United States receiving news from Facebook. from Facebook, Pew found in an earlier study. The Center's 2015 study found that "one-in-ten U.S. adults get news on 2. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE Twitter and about four-in-ten (41%) get news on Facebook." The 2015 JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, report further concluded that 63% of both Facebook and Twitter users use 66. But one consequence of media fragmentation has been the rise of those social media platforms "as a source for news about events and "fake news," a phenomenon that became a defining feature of the 2016 issues outside the realm of friends and family." This represents an over election. Although partisans might describe any news report they do not 50% increase since 2013. like as "fake news," the term generally refers to baseless allegations 9. Mark Scott, (Staff), NEW YORK TIMES, Feb. 21, 2017, A1. ''There are republished in the guise of a genuine news story. The internet has played concerns shared by many governments that fake news could become a key role in the rise of fake news. Academic studies have found that weaponized,'' said Damian Collins, a British politician in charge of a new people often have difficulty distinguishing fact from fiction on the internet, parliamentary investigation examining the phenomenon. ''The spread of which makes it the ideal forum for disseminating misinformation. The 2016 this type of material could eventually undermine our democratic election confirmed such findings, as a bewildering array of fabricated institutions.'' Despite the regionwide push to counter false reports, experts election stories received extraordinarily wide circulation. Stories ranged question whether such fact-checking efforts by governments and from claims that Pope Francis endorsed Donald Trump to allegations that publishers will have a meaningful effect. Fake reports can easily be shared Hillary Clinton sold weapons to the terrorist group ISIS. By a 4 to 1 margin, through social media with few, if any, checks for accuracy. ''Most people most "fake news" stories targeted Clinton's campaign. just don't care about where their news comes from,'' said Mark Deuze, a 3. Associated Press, LONG ISLAND BUSINESS NEWS, Dec. 15, 2016. professor at the University of Amsterdam. He added that ''nep news,'' Retrieved Dec. 12, 2017 from Nexis. Fake news stories can be quicker to Dutch for ''fake news,'' has been growing ahead of the country's national go viral than news stories from traditional sources. That's because they elections next month. ''People are exposed to a ridiculous amount of were created for sharing -- they are clickable, often inflammatory and information online.'' pander to emotional responses. Mike Caufield, director of blended and 10. Greg Demetriou, (Staff), LONG ISLAND BUSINESS NEWS, Dec. 19, networked learning at Washington State University Vancouver, tracked 2016. Retrieved Dec. 15, 2017 from Nexis. Fake news propagation whether real or fake news is more likely to be shared on Facebook. He requires vast segments of the online trolls to believe things that are clearly compared a made-up story from a fake outlet with articles in local untrue. They accept content on its face, as if the satirical claim that all newspapers. The fake story, headlined "FBI Agent Suspected In Hillary things internet are true was in fact the reality. Beyond people being gullible Leaks Found Dead In Apparent Murder-Suicide" from the nonexistent or naive, fake news is agenda-based. It relies on being pushed out over Denver Guardian, was shared 1,000 times more than material from the and over by people who want to believe the misinformation because it is real newspapers. "To put this in perspective, if you combined the top a form of verification of their already held beliefs. The more compelling stories from the Boston Globe, Washington Post, Chicago Tribune, and fake news stories string an absurd result or pending doom from one aspect LA Times, they still had only 5% the viewership of an article from a fake of an event making it easy to swallow by those already inclined to believe. news," he wrote in a blog post. This phenomenon depends on one’s intellect to be waived, put on hold or merely sat on.

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11. THE SANTA FE NEW MEXICAN, Jan. 3, 2017. Retrieved Dec. 15, 18. Bonnie Kristian, (Staff), DAYTON DAILY NEWS, Dec. 22, 2016, A15. 2017 from Nexis. The online story, sometimes known as "Pizzagate," is a No one wants to feel stupid, uninformed, or gullible - and fake news, if concoction mixing Clinton, child abuse and pizza -- and it is not true. Yet convincing, has the ability to make us feel all those things. That, I suspect, this "fake news" created a buzz on Facebook and other social media is why recent poll results from Pew Research Center finds nearly nine in outlets in the months before the presidential election. It's easy to think that 10 Americans say fake news is causing some degree of confusion about no person with a modicum of intelligence could believe a tale as basic current events (with nearly two-thirds agreeing it has caused "a great nonsensical and as twisted as Pizzagate. Edgar Welch did believe it, deal" of confusion), yet far fewer are willing to admit they personally have however. It appears that a not inconsequential number of Americans who been confused. In other words, most Americans agree fake news is a big use social media believed it, too. A poll last September found that 14 problem, but only for other people. percent of Trump supporters believed the story (and 32 percent were "not sure" like Welch, who decided to investigate). The New York Times and 19. David Zurawik, (Staff), BALTIMORE SUN, Nov. 20, 2016, E1. Our media malaise runs much deeper than Facebook or even fake news. Our The Washington Post had run articles that thoroughly debunked the information ecosystem is very sick. We have more information and media spurious tale, but those responsible reports could not stop the lies from technology than ever. Yet we have never been more confused politically spreading. as a nation. And we now have a president-elect with 25 million social 12. John Herrman, (Staff), THE NEW YORK TIMES, Dec. 22, 2016. media followers who often retweets and posts without any nod toward Retrieved Dec. 15, 2017 from Nexis. "We've found that a lot of fake news verification. is financially motivated," Mosseri wrote. "Spammers make money by masquerading as well-known news organizations and posting hoaxes that 20. David Zurawik, (Staff), BALTIMORE SUN, Nov. 20, 2016, E1. We are living on the edge of - if not already in - an information crisis. And it seems get people to visit to their sites, which are often mostly ads." as if we are too addled by all the fake news, misinformation, 13. John Herrman, (Staff), THE NEW YORK TIMES, Nov. 19, 2016, B1. disinformation, bad reporting and flat-out propaganda at places like Something is deeply wrong when the pope's voice, reputation and Facebook, Twitter, Reddit and Google to even know how far gone we are. influence can be borrowed by a source that describes itself as ''a fantasy Fake news, which gained serious traction during the presidential news site'' to claim that he has endorsed a presidential candidate, and campaign, is only part of the problem. But it's a big part, and the confusion then be amplified, unchallenged, through a million individual shares. The it can spread was on sorry display in recent months - particularly on social attention paid to fake news since the election has focused largely on media where more than 62 percent of Americans now go for news and fabrications and outright lies, because they are indefensible, easy to information, according to the Pew Research Center. identify and extraordinarily viral. Fake news is created by the kinds of people who, when asked, might call their work satire, or admit that they're 21. Gerry Smith, (Staff, Bloomberg News), CHICAGO DAILY HERALD, Dec. 18, 2016. Retrieved Dec. 15, 2017 from Nexis. Almost one-quarter in it for the money or for the thrill of deception. of Americans say they've shared fake news, according to a poll that found 14. Steven Patterson, (Staff), NETWORK WORLD, Dec. 13, 2016. widespread public concern about the problem of misinformation online. Retrieved Dec. 12, 2017 from Nexis. Paid promotion on Facebook The Pew Research Center survey released Thursday showed that nearly accelerates propagation of fake news If there is only one principal of one-third of adults often encounter fake news online and about two-thirds internet marketing, it is money brings eyeballs. Most websites are believe the explosion of false information causes a "great deal of confusion constrained in spending by a profit motive; however, if the goal is to about the basic facts of current issues and events." accelerate a fake news story's time-to-viral sharing on Facebook, deficit spending on promotion is the accelerant. 22. Teri Sforza, (Staff), ORANGE COUNTY REGISTER, Dec. 18, 2016, A1. "Hillary Clinton is running a child sex ring from the basement of a pizza 15. Teri Sforza, (Staff), ORANGE COUNTY REGISTER, Dec. 18, 2016, parlor!" Whoops. That's wrong. "The FBI agent suspected in the Hillary A1. Fake news might not be new, but the potential for vast profit from it is. email leaks was found dead in his apartment!" Um, wait. That's fiction, too. Money, in fact, might be what sets it apart from the Ben Franklin-type "An Atlanta police officer killed a black woman and injured her child after propaganda of old. Franklin sought a political end. Fake news, in 2016, a breast-feeding argument!" "Obama is planning a secret takeover of local seeks gold. You click on a story from Facebook. You land on a website police departments!" "Michelle Obama held a feminist rally at her slave laced with advertisements. The site owner gets a pittance for each set of house!" "Former presidents are paid $450,000 a year for life!" "The eyeballs, but it adds up: A heavy volume of clicks can generate $30,000 a speaker of the House makes $225,000 a year for life!" And so on. Lies, month in ad revenue. Or more. fiction, satire, bombast - call them what you will, but such stories go viral on social media, posing as real news and, in the process, inflame passions 16. THE SANTA FE NEW MEXICAN, Jan. 3, 2017. Retrieved Dec. 15, and muddle reasonable debate. 2017 from Nexis. While fake news has roots in political propaganda, it is becoming a profitable business. A recent NPR series reports that there 23. Kitson Jazynka, (Staff), THE WASHINGTON POST, Apr. 9, 2017, A25. are at least 50 websites internationally that exclusively publish fake news, A 2016 study by the Stanford Graduate School of Education concluded and that these sites appear to be profit-driven. They make revenue by that while young people today may be the first generation of digital natives, joining an ad network that will pay them whenever viewers click on their they struggle to differentiate between real and fake news. "They can use content. A recent survey concluded that in a complex world (in which even digital technology, but they have terrible skills at judging what information the real news can sometimes be very strange) readers fell for fake news is reliable and what is not reliable," [Howard Schneider, executive director 75 percent of the time. The survey also showed that most fake news in the of Stony Brook University’s Center for News Literacy]says. "And it's last election cycle had a pro-Trump and anti-Clinton slant. Trump becoming more and more dangerous." supporters appeared to be more susceptible to false news reports than 24. Lee Hamilton, (Former Indiana Congressman & Sr. Adviser, Indiana Clinton supporters, but they also were deluged by more of it. University Center on Representative Government), CHICAGO DAILY 17. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE HERALD, Dec. 14, 2016, 12. When misinformation has spread in the past, JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, we've always been able to depend on the truth catching up and eventually 69. A December 2016 Pew Research Center poll found that eighty-eight prevailing. Now, however, the circuits are being overloaded -- not just by percent of Americans believe that fake news has caused some confusion the proliferation of platforms and sources of information, but by people over basic facts and sixty-four percent believe it has caused great who are using the tools of democracy to undermine it. We must strive for confusion. The public's confusion undermines the notion of commonly an environment in which truth wins the day in the war over information. agreed upon objective facts and exacerbates the natural human tendency toward confirmation bias, whereby we selectively choose facts that support our pre-existing biases. Confirmation bias thus reinforces political polarization, as Republicans and Democrats seek out information, including fake news, which reinforces their political worldview. Acknowledging the problem, Facebook founder Mark Zuckerberg expressed regret that fake news on Facebook had increased political polarization.

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25. Daniel Ho, (Prof., Law, U. Virginia School of Law), NEW YORK 33. Lee Hamilton, (Former Indiana Congressman & Sr. Adviser, Indiana UNIVERSITY LAW REVIEW, Oct. 2015, 1169. The degree of confidence University Center on Representative Government), CHICAGO DAILY with which a speaker articulates a proposition correlates significantly with HERALD, Dec. 14, 2016, 12. These days, purveyors of fake news get paid whether the proposition will be believed by an audience, but only poorly to mislead the public. This is new. These are fantasies masquerading as with whether the proposition is true. The acceptability of an idea varies "news" -- misleading, disingenuous and removed from context. They're with what social psychologists call "peripheral cues," which include, outright lies generated without regard for the commitment to accuracy that among others, the identity, authority, and charisma of the agent real journalism strives for. This is very, very dangerous. Outside of criminal expressing the proposition (the speaker), the frequency with which the activities like bribery, it's hard for me to imagine a greater disservice to our proposition is expressed, the manner or style with which the proposition is country. Americans care about being informed. People know that they expressed, the medium through which the proposition is expressed, the have political decisions to make, that their votes matter, and that they recipients' stake or interest in the outcome, and the prior beliefs and shouldn't make them in a vacuum. False news makes the basic allegiances of the recipients. responsibilities of citizenship much harder. 26. Derek Bambauer, (Fellow, Berkman Center for Internet & Society, 34. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE Harvard Law School), UNIVERSITY OF COLORADO LAW REVIEW, JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, Summer 2006, 709. The weakness of the marketplace of ideas is the 64. In the 1970s, print and broadcast journalism was highly concentrated consumers who shop within it. Our perceptual filters, cognitive biases, and in a handful of major national news outlets, such as CBS News, Time heuristics mean that we do not consistently discover truth and discard magazine, and newspapers such as the Wall Street Journal and the New false information. York Times. A far different news world prevails today. Traditional news journalism has shrunk dramatically both in terms of consumers and 27. Lee Hamilton, (Former Indiana Congressman & Sr. Adviser, Indiana profitability. For example, average daily newspaper readership has fallen University Center on Representative Government), CHICAGO DAILY to 50-year lows, 20,000 newspaper workers have been laid off since the HERALD, Dec. 14, 2016, 12. Our representative democracy depends on 1990s, and the financial value of the newspaper industry has contracted ordinary people making sound judgments about politicians and policy. This precipitously. Broadcast television news has not fared any better. A 2016 is hard to do at the best of times. Issues are complex. Being able to sort study by Oxford University found that television news audiences are out what matters and what's a diversion takes knowledge and judgment. shrinking just as fast as newspaper readership, especially among younger Being a full citizen in a representative democracy depends on accurate viewers. In a sign of the potentially bleak future of television news, the information -- and the ability to discern what's reliable and what's not. average age of Fox News viewers has risen to 67 and the average age of 28. Lee Hamilton, (Former Indiana Congressman & Sr. Adviser, Indiana CNN viewers is now almost 62. In contrast, social media and online sites University Center on Representative Government), CHICAGO DAILY have benefited from the decline of the traditional news media. Facebook, HERALD, Dec. 14, 2016, 12. I can't pretend to know how we will ultimately a social media website, is now a news source for 44 percent of Americans. help Americans sort through what's truth and untruth, what's serious As advertising revenue has steadily shrunk for newspapers like the New argument and what's propaganda, but I do know that this is one of the key York Times, Facebook saw its advertising revenue increase by nearly battles of our time. Fake news is a threat to our system, a land mine that 60%. can cripple representative democracy by making a mockery of its most 35. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF basic tenet: that the people will make the right decisions. This is a COMPUTER & INFORMATION LAW, Winter 2002, 275. Each merger challenge we need to address head on and without delay -- the future of affects the marketplace of ideas in different ways. However, continuing the our representative democracy is at stake. current economically-centered antitrust paradigm, which allows mergers 29. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE that dramatically reduce the number of independent news content JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, suppliers, and simultaneously fails to raise regulators' eyebrows because 68. A new study by Stanford University found that even young people, who those same mergers do not lead to higher prices, must not be allowed. tend to be more technologically sophisticated than older Americans, are 36. Patrick Garry, (Dir., Hagemann Center for Legal & Public Policy "easily duped" by fake news stories. The public's inability to distinguish Research), THE AMERICAN VISION OF A FREE PRESS, 1990, x. The truth from fact is particularly troubling for democracies, since the quality of contemporary problems caused by concentrated ownership in the press self-government depends on voters making informed choices. Thus, in industry and the resulting backlash against press freedoms provided a summarizing their findings, the authors of the Stanford study warned, "we practical motivation for the revised marketplace model. In the last several worry that democracy is threatened by the ease at which disinformation years, a flurry of books have documented the public's continued suspicion about civic issues is allowed to spread and flourish." and distrust of the monopolized press. 30. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & 37. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF ENTERTAINMENT LAW JOURNAL, 2017, 670. Fake news stories about COMPUTER & INFORMATION LAW, Winter 2002, 251. The trend toward the major presidential candidates became widespread on Facebook and corporate consolidation within the media industry poses a major threat to elsewhere online in the months leading up to the 2016 presidential democracy and the marketplace of ideas by allowing "too much power in election, raising questions of whether fake news influenced the outcome too few hands [thus] impairing freedom of expression." If the current of the election. The ease and speed with which false news stories can laissez faire attitude toward media mergers is allowed to continue, then it spread online poses a threat to the efficient functioning of our democracy, is possible to foresee a day when an even smaller number of large media a threat the government has a compelling interest in addressing. companies dominate the television and radio airwaves, telephony, and 31. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & cyberspace. ENTERTAINMENT LAW JOURNAL, 2017, 671. One of the biggest 38. Donald Simon, (JD), THE JOHN MARSHALL JOURNAL OF problems with fake news is that it "can distort the electoral process." Fake COMPUTER & INFORMATION LAW, Winter 2002, 285. Big media news stories "might trick voters into voting for the "wrong' candidate or mergers pose a threat to our democracy because these corporate unions voting the "wrong' way on a ballot measure," with "wrong" meaning voters block programming and viewpoint diversity and promote news and public vote differently than they would have had they not been exposed to fake affairs homogenization. When large corporations control the marketplace news stories. of ideas, the public interest takes a back seat to the goal of making large 32. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & profits. In order to turn those big revenues, parent companies engage in ENTERTAINMENT LAW JOURNAL, 2017, 703. The misinformation self-censorship, news coverage reduction, and news content provided by fake political news stories and the wide reach those stories manipulation. can achieve through popular social media sites like Facebook present a 39. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO threat to the efficient functioning of our democracy. PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 2. The Internet is not a single, universal marketplace of ideas, but rather, consists of numerous mini-marketplaces, each with its own dynamics, parameters, regulatory scheme, and audience. These virtual marketplaces present the widest possible dissemination of information, which is essential to the welfare of the public.

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40. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO 46. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 6. Judge Lowell ENTERTAINMENT LAW JOURNAL, 2017, 703. Facebook's efforts "show A. Reed, Jr. applied the marketplace metaphor to the Internet: In the that it recognizes the need to establish processes to maintain the service's medium of cyberspace ... anyone can build a soap box out of web pages trust as a media brand." In doing so, Facebook is also hoping to make and speak her mind in the virtual village green to an audience larger and "sure that a healthy news ecosystem and journalism can thrive." It remains more diverse than any the Framers could have imagined. In many to be seen how effective these efforts will be and how committed respects, unconventional messages compete equally with the speech of Facebook is to achieving these objectives in the long term. Facebook mainstream speakers in the marketplace of ideas that is the Internet, certainly has an incentive to promote its users' confidence in the certainly more than in most other media. (ellipsis in original) information found on its site. Otherwise, it risks becoming associated in the public's mind with fake news, which could cause it to lose users and 41. Nima Darouian, (JD, Loyola Law School, Los Angeles), CARDOZO revenue. PUBLIC LAW, POLICY & ETHICS JOURNAL, Fall 2010, 23. In the Information Age, we now have the ability to instantly learn of other cultures 47. MERCURY NEWS, Dec. 15, 2016. Retrieved Dec. 15, 2017 from directly from the people living in these cultures, and additionally have Nexis. A month ago, Google pledged to ensure the ads sold though its access to a "vast library" that supplies us with "knowledge of the past and AdSense program wouldn’t go onto fake news sites. But so far, the present history of cultures in all their fantastic variety." Practically every Mountain View tech titans largely failing to stop the ads from generating culture has some presence in cyberspace. As Judge Dalzell explained in money for purveyors of fake news, according to a just-released report. 1996: Federalists and Anti-Federalists may debate the structure of their Google AdSense-linked advertisements were still running on countless government nightly, but these debates occur in newsgroups or chat rooms hyper-partisan websites peddling fake news nearly a month after Google rather than in pamphlets. Modern-day Luthers still post their theses, but to announced it would ban these types of sites from using its online electronic bulletin boards rather than the door of the Wittenberg advertising service, said the report by watchdog group Media Matters for Schlosskirche. More mundane (but from a constitutional perspective, America. equally important) dialogue occurs between aspiring artists, or French 48. Mike Isaac, (Staff), THE NEW YORK TIMES, Dec. 16, 2016, B1. For cooks, or dog lovers, or fly fishermen. weeks, Facebook has been questioned about its role in spreading fake 42. Anthony Gaughan, (Prof., Law, Drake U. Law School), DUKE news. Now the company has mounted its most concerted effort to combat JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY, Spr. 2017, the problem. Facebook said on Thursday that it had begun a series of 68. Facebook and Google both took the problem so seriously that after the experiments to limit misinformation on its site. The tests include making it election they announced plans to combat the spread of fake news on their easier for its 1.8 billion members to report fake news, and creating websites. Their response reflected the undeniable fact that Facebook, partnerships with outside fact-checking organizations to help it indicate Google, and other websites facilitated the dissemination of news - fake when articles are false. The company is also changing some advertising and real alike - to a degree impossible in previous eras. practices to stop purveyors of fake news from profiting from it. 43. Daisuke Wakabayashi, (Staff), THE NEW YORK TIMES, Jan. 25, 49. Rich Jaroslovsky, (Staff), NEW YORK OBSERVER, Apr. 11, 2017. 2017. Retrieved Dec. 15, 2017 from Nexis. Google and Facebook have Retrieved Dec. 15, 2017 from Nexis. Yet from a technological viewpoint, been taking steps to curb the number of false news articles propagated such stories may be the easiest to deal with. It's a pretty straightforward across their sites. On Wednesday, the Silicon Valley companies showed task to do things like adjust an algorithm to evaluate a source's that they were still in the early stages of their battle to limit misinformation authenticity, and to disrupt the economics of such sites by detecting and online. In a blog post, Google said it had permanently banned nearly 200 blocking their content. It's to Facebook's shame that it didn't come to that publishers from its AdSense advertising network near the end of last year, conclusion much earlier than it did, and take appropriate steps when it after putting into effect a policy in November to choke off websites that try could have made more of a difference. But it is at least now launching a to deceive users from its online ad service. On the same day, Facebook new educational campaign on how to spot fake news. Google, meanwhile, introduced changes to its Trending Topics feature - a part of the social last week announced a new feature called Fact Check for news and network that some have blamed for spreading false information - to better search. promote reliable news articles. 50. Hayley Watson, (Partner, Trilateral Research & Consulting, LLP), 44. Daisuke Wakabayashi, (Staff), THE NEW YORK TIMES, Jan. 25, CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 321. No 2017. Retrieved Dec. 15, 2017 from Nexis. In response, both companies longer in its infancy, our understanding of the role of citizen journalism in have tried various measures to limit fake news. Google in November said the news production process is well established, if a continuing subject of it would ban sites that spread misinformation from AdSense as a way to debate nonetheless. This chapter demonstrates that citizen journalists are impair how such sites make money. That same month, Facebook updated not only contributing to the construction of news, however, they are also some of its policy language, which already said it would not display ads increasingly playing a central role in crisis communication. on sites that show misleading or illegal content, to include fake news sites. 51. Karina Alexanyan, (Analyst, Berkman Center for Internet & Society, Facebook has since introduced other changes, including consulting third- party news organizations like The Associated Press and ABC News about Harvard U.), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 259. Russian citizen journalism made international front-page news in the accuracy of articles that users report as being false. February 2013, when a meteor entered the earth's atmosphere and 45. Joel Timmer, (Prof., Digital Media, TCU), CARDOZO ARTS & crashed in Chelyabinsk Oblast. Dramatic eyewitness videos emerged on ENTERTAINMENT LAW JOURNAL, 2017, 699. One change Facebook is social networking sites showing the fireball darting across the sky, making is allowing users "to flag content that may be fake." Currently, followed by a loud explosion. Ordinary citizens driving near the area Facebook users can report posts in their news feeds that they don't like, captured much of the available footage, often accidently so because of the with the ability to select from different options for why they dislike the story, widespread use of so-called "dashcams" (video camera mounted on dash- such as "I don't think it should be on Facebook." With the new experiment, board in car) to secure eyewitness material against police corruption or "users will have the option to flag a post as fake news as well as to attempted insurance fraud. Eyewitness footage of the meteor helped verify message the friend who originally shared the piece to tell him or her the the nature of the asteroid, and also helped to quell initial scepticism about article is false." Articles: that are flagged by enough users as fake can be vague official reports emerging in the hours immediately after the incident. directed to third-party fact-checkers, all of whom are signatories of Poynter's International Fact Checking Code of Principles. These include 52. Mary Bock, (Prof., Journalism, U. Texas at Austin), CITIZEN JOURNALISM: GLOBAL PERSPECTIVES, 2014, 349. Reaching for one's ABC News, the Associated Press, FactCheck.org, PolitiFact, and Snopes, which will then fact-check the article. If the article is false, the fact-checkers smartphone during an emergency is quickly becoming the norm for those living in the digital age. Cellphone videos often provide the only "can mark it as a "disputed' piece, a designation that will be seen on Facebook." documentation of sudden disasters and crimes, as with the bombings of the London subway in 2007 or the mass shooting on the campus of Virginia Tech in 2007. As tools in the hands of citizen journalists and activists (and individuals who claim both hats) smartphones videos are challenging traditional borders between journalism, source routines, and the public.