"Fake News" and the First Amendment – University of Dayton – News Home

Posted: April 6, 2021 at 8:35 pm


The panel sounds interesting and certainly timely!However, I wanted to offer my concerns on the example chosen regarding demonstrably false statements about public health such as Masks dont slow the spread of COVID.

Given the tragic politicization of science over the past 12 months, and the debate over the most appropriate public health measures to implement to respond to CV-19, I think it is particularly problematic to use a highly contested health protocol as if one particular scientific view is truth and any opposing scientific/medical views are dangerous (and thus permissibly banned) fake news.Specifically, although there is certainly a dominant view being put forth on community masking, there are quite a few opposing scientific/medical professional views on this, as well as numerous scientific studies showing that masks may make little to no difference to the spread of COVID.In fact, the WHO, in its most recent interim December 2020 Guidance, indicates that:

Guidance on mask use in community settings

Evidence on the protective effect of mask use in community settings

When the WHO itself is indicating that there is only limited and inconsistent scientific evidence to support the masking of healthy people, and there are numerous studies coming out to the contrary, it is hardly a demonstrably false statement to make a statement about masks like the one indicated in your announcement, let alone be considered reckless for asserting/disseminating it.While there is of course scientific/medical opinions and studies to the contrary, and that position may even be the current dominant opinion in the scientific community, the point is that using this as an example of problematic fake news demonstrates the significant danger we are facing of labeling any opposing views as fake news, in order to eliminate all but the preferred dominant narrative.

I realize that under the model statute you plan to discuss, and under existing law, there is a distinction between provably false statements of fact and opinion, and that statements that are substantially true are excepted.However, my concern is that statutes like this could be used to intimidate, dissuade, or harass scientists/medical professionals/persons with knowledge and/or the information sources disseminating such opposing views from disseminating information that he/she believes to be true and beneficial to society.This would of course have a chilling effect on free speech and the dissemination of potentially truthful and beneficial information, leaving us only with state-sanctioned dominant narratives that may or may not be truthful themselves.

For anyone really paying attention, the last 12 months have revealed increasingly terrifying Ministry of Truth levels of censorship of any and all opposing scientific/medical views regarding all public health measures related to CV-19 i.e., masks, society-wide lockdowns, and available/existing treatment protocols for CV-19 vs. mRNA gene therapies.I have watched in horror, for example, as the scientists behind the Great Barrington Declaration -- Sunetra Gupta (Oxford), Jay Bhattacharya (Stanford) and Martin Kulldorff (Harvard) or even Stanfords Scott Atlas have had their reputations tarnished, their motives questioned, and their opinions silenced, simply for expressing opinions critical of the dominant narrative regarding society-wide public health responses. In the U.S., of course, it has largely become politicized along party lines, which is a tragedy in my opinion, as we as a society only benefit from hearing all medical and scientific viewpoints when dealing with unprecedented/unchartered public health measures that have affected society so drastically and so devastatingly.

As an attorney and professor focusing on First Amendment issues, I am sure you are well aware of the importance of allowing intelligent debate and opposing viewpoint discourse to take place on issues crucial to the public.Labeling an opposing view fake news in order to ban it or intimidate/harass its disseminator because it legitimately questions a dominant narrative on public health or any other dominant narrative is a slippery slope towards despotism.The model statute banning fake news that your panel will discuss/analyze is fraught with ethical and legal minefields that one may not see clearly enough when one is currently in agreement with the particular dominant narrative, but which can become an obvious tool for tyranny when one is not.

In any event, I am reaching out with the hope that you will consider/discuss the problems with using this public health/mask example as an example of a demonstrably false statement, and that your panel will explore the very real ethical, legal, democratic, and societal dangers of labeling or trying to ban unpopular or anti-dominant narrative information as dangerous fake news.

Rita Barnett-Rose


I don't see it being an effective method, nor it bringing more trust or reliability to media outlets when they have consistently reported the same type of "fake news" saying it is a "first amendment right", yet injecting personal opinion, summation, and perspective while claiming these aspects as "facts" or "news", with most reporting being biased toward the entities of government wh ich has heavily vested amd invested interests in the media outlets to control content as well.

Harry Haggard


The material harm requirement of the model statute greatly narrows its potential scope, which to my mind is probably a good thing. Assuming hypothetically that this statute had been universally in effect over the past year, what fake news harms might have been subject to prosecution under its terms?

James Stark


"Free speech" that infringes on other people's rights or that may harm another person's civil rights, life, liberty, or their pursuit of happiness: IS NOT FREE SPEECH!



Hi! I love your Statute. I think sections 3(h)(i) and 3(h)(iii) could be easily circumvented. I have my own ideas for a statute to regulate fake news that uses Rule 10b-5 of the Securities Exchange Act of 1934 as a model, switching the words "in the sale of securities" with "in the dissemination of political ads." I also think Fox News, One America News, Brietbart News, and similar organizations use the word & quot;news" to represent themselves as what the constitution means by "press," when in actuality they are PR organizations that incidentally use "news" as a product. So they would qualify as BFNO's under your statute, but would be able to avoid its purpose. I think you could address the problem of misinformation by regulating the PR industry, which may seem tangential at first, but would actually address misinformation more directly.

Alex Berg



Lynn Rotzell


Remember that you yourself are the best secretary of your task, the most efficient propagandist of your ideals, the clearest demonstration of your principles, the highest standard of higher education that your spirit embraces and the living message of the high notions that you pass it on to others. Do not forget, also, that the greatest enemy of your noblest achievements, the complete or incomplete denial of the sublime id ealism that you proclaim, the discordant note of the symphony of good you intend to perform, the architect of your afflictions and the destroyer of your lifting opportunities - it's you.

Britney Horrzt


Trolling legitimate voices with intentional falsehoods, drowning out the truth with a sea of misinformation, attempting to mislead the public for financial gain, and intentionally trying to destroy political opponents with lies - none of these do anything to serve the interests and values underlying the First Amendment. The First Amendment protects our most sacred rights, but it has become a shield for the corrupt and insince re who use it to promote their intentional lies. Even though many recognize these threats to the First Amendment , few have offered solutions. Despite the many problems this model statute raises, it's a good first step in deciding what we can do to save the First Amendment by outlawing the aberrations some believe it protects.

Dan Taylor

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"Fake News" and the First Amendment - University of Dayton - News Home

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