Journal of Technology Law & Policy Journal of Technology Law & Policy
Volume 27 Issue 1 Article 2
January 2022
Fake News and Intent to Distribute: How the FTC Can Stop the Fake News and Intent to Distribute: How the FTC Can Stop the
Spread Spread
Pete Love
University of Florida Levin College of Law
Follow this and additional works at: https://scholarship.law.u6.edu/jtlp
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Journal of
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: Vol. 27: Iss. 1, Article 2.
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99
FAKE NEWS AND INTENT TO DISTRIBUTE: HOW THE FTC
CAN STOP THE SPREAD
Pete Love
*
Abstract
The proliferation of fake news through targeted social media
disinformation campaigns originating in the United States and abroad
threatens the hallmark of a well-functioning democracy—“a well-
informed electorate.” This Note will describe the most damaging type of
fake news—knowingly false stories made with the intent to distribute in
return for advertising income. First, this Note will provide an overview
of fake news and explain why current legal frameworks are insufficient
to effectively deter the spread of fake news. Then, this Note will argue
that the Federal Trade Commission (FTC) has the authority to address
this issue and will recommend the FTC adopt a rule based on a theory of
intent to distribute. Finally, this Note will discuss how the proposed rule
will better equip the FTC to combat the proliferation of fake news and
deter its dissemination from the source—the author.
INTRODUCTION ..................................................................................... 100
I. THE FINANCIAL INCENTIVES AND PERILS OF FAKE NEWS ...... 103
II. EXISTING LEGAL AVENUES DO NOT PROVIDE
MEANINGFUL SOLUTIONS ....................................................... 107
A. First Amendment Limitations ......................................... 107
B. Tort Law Limitations ...................................................... 110
C. Section 230 ..................................................................... 112
III. MODELING INTENT TO DISTRIBUTE ........................................ 113
A. The Current Approach by the FTC ................................. 114
B. FTC Regulation .............................................................. 114
1. Enforcement ............................................................ 114
2. Rulemaking ............................................................. 116
3. Permissible Enforcement as Commercial
Speech ..................................................................... 118
a. Whether the Speech is Commercial ................. 119
i. Advertising Format ................................... 119
ii. Product Reference ..................................... 120
iii. Economic Motivation ............................... 120
* J.D., 2022, University of Florida Levin College of Law. I would like to thank Professors
Amy Stein and Clay Calvert for their guidance and encouragement throughout the writing process.
Also, thank you to my peers at Journal of Technology Law & Policy for their diligent work to edit
this Note.
100 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
b. Is the Speech False or Misleading? .................. 122
C. Modeling an FTC Rule on a Theory of Intent
to Distribute .................................................................... 124
1. Knowledge of Falsified Story ................................. 125
2. Knowingly “Authored” ........................................... 126
3. Intent to Distribute .................................................. 127
i. Quantity .................................................... 127
ii. Cash or Value............................................ 128
iii. Behavior .................................................... 129
iv. Network Engagement ............................... 130
v. “Tools of the Trade” ................................. 131
vi. Multiple Types of Evidence ...................... 132
CONCLUSION ......................................................................................... 132
INTRODUCTION
The rapid rise of user technology and social media has ushered in an
era of unprecedented access to information, revolutionized the process of
information distribution, and dramatically changed the landscape of news
media.
1
By 2019, 93% of American adults received at least some news
from online sources.
2
Additionally, recent survey data has shown that
52% of Americans prefer to obtain their news from digital sources while
only 35% preferred television and 5% preferred print publications.
3
The
transition to digital media dominance has been so rapid that the truth
cannot keep up. The 2016 U.S. presidential election illustrated the
prominence of misinformation and falsehoods being presented as fact
(“fake news”) and the deleterious effects of such fake news on voters.
The impact of this phenomenon was so profound that Oxford University
Press selected “post-truths” as its 2016 word of the year.
4
The prominence
of fake news has not abated since the 2016 election. To wit, a 2019 poll
conducted by the Pew Research Center found that Americans believe fake
1
. Darrell M. West, How to Combat Fake News and Disinformation, BROOKINGS (Dec.
18, 2017), https://www.brookings.edu/research/how-to-combat-fake-news-and-disinformation/
[https://perma.cc/WE3D-499L].
2
. Digital News Fact Sheet, PEW RSCH. CTR. (July 23, 2019), https://www.pewresearch.
org/topics/state-of-the-news-media/ [https://perma.cc/BC7Q-38RG].
3
. Elisa Shearer, More Than Eight-In-Ten Americans Get News from Digital Devices, PEW
RSCH. CTR. (Jan. 12, 2021), https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-
in-ten-americans-get-news-from-digital-devices/ [https://perma.cc/6TMB-D5CM].
4
. Word of the Year 2016, OXFORDLANGUAGES, https://languages.oup.com/word-of-the-
year/2016/ [https://perma.cc/B7UX-6BUM] (The term is defined as “denoting circumstances in
which objective facts are less influential in shaping public opinion than appeals to emotion and
personal belief.”).
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 101
news is a bigger problem than terrorism, climate change, and illegal
immigration.
5
Fake news threatens the existence of a well-functioning democratic
discourse built upon shared facts and truths supported by empirical
evidence.
6
In Buckley v. Valeo, the Supreme Court of the United States
noted that “democracy depends on a well-informed electorate. . . .” Judge
Wright of the D.C. Circuit further opined that “secrecy . . . dampens well-
informed public debate.”
7
This Note will argue, however, that it is not
secrecy which poses the direst threat to modern public discourse. It is,
instead, fake news, designed to reach as vast an audience as possible to
generate maximum advertising revenue for the author. Fake news
obliterates productive public discussion of meaningful issues and
jeopardizes the lifeblood of a democratic society: a well-informed
electorate.
Fake news is not a new phenomenon. Numerous examples of the
dissemination of falsified information can be seen throughout history,
8
including during the founding of the United States,
9
which impacted both
politics as well as issues and industries beyond the political realm.
10
However, while fake news is certainly not a new phenomenon, the advent
of the Internet and Internet-based services has drastically exacerbated the
detrimental effects of fake news to unprecedented levels. In contrast to
its historical modes of dissemination, fake news can now be circulated
around the world instantaneously by any individual with one retweet,
like, or share making it a much more ominous threat than before.
11
5
. Amy Mitchell et al., Many Americans Say Made-Up News Is a Critical Problem That
Needs To Be Fixed, PEW RSCH. CTR.: JOURNALISM & MEDIA (June 5, 2019), https://www.
journalism.org/2019/06/05/many-americans-say-made-up-news-is-a-critical-problem-that-needs
-to-be-fixed/ [https://perma.cc/JPA3-VL4V].
6
. Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy,
Democracy, and National Security, 107 CALIF. L. REV. 1753, 1777 (2019).
7
. Buckley v. Valeo, 424 U.S. 1, 49 n.55 (1976); Clark-Cowlitz Joint Operating Agency
v. F.E.R.C., 798 F.2d 499, 505 (D.C. Cir. 1986) (Wright, J., dissenting).
8
. “Fabricated, sensationalistic, and exaggerated stories have been pervasive throughout
Western societies for centuries.” Alan K. Chen, Free Speech, Rational Deliberation, and Some
Truths About Lies, 62 WM. & MARY L. REV. 357, 369 (2020). See also Jacob Soll, The Long and
Brutal History of Fake News, POLITICO (Dec. 18, 2016), https://www.politico.com/
magazine/story/2016/12/fake-news-history-long-violent-214535 [https://perma.cc/2ME7-NLU4]
(describing the importance of the printing press in the prominence of fake news in history).
9
. Chen, supra note 8, at 370 (“From the Founding Era until the twentieth century, fake
news stories were prevalent in the United States.”). Following the Revolutionary War, false
articles were published claiming George Washington was miserable during the war believing it
was a mistake, effectively convincing some members of the public that Washington was a British
loyalist. Id.
10
. Id. at 374.
11
. Id. at 375.
102 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
Due to the polarizing and problematic influence of fake news
campaigns,
12
many scholars have explored the phenomenon and
proposed a variety of solutions. Some propose that the immunity granted
by Section 230 of the Communications Decency Act should not extend
to online service providers that do not take steps to combat the issue of
fake news.
13
Others assert that Section 230 should be amended to include
notice and takedown procedures and provide an adequate tort remedy for
harmed parties.
14
Other scholars contend that courts offer the best avenue
for rectifying the problem, arguing the judicial standard used to
determine the constitutionality of proposed legislation targeting fake
news should be reduced from strict scrutiny to a more deferential version
of intermediate scrutiny.
15
While some have already explored the FTC’s
role in controlling fake news through its enforcement powers,
16
this Note
will draw lessons from an established body of law to propose a specific,
novel approach to stopping the spread of fake news.
This Note will focus on authors who knowingly create political fake
news stories with the intent to use the Internet as a forum for widely
distributing misinformation for personal financial gain.
17
While fake
news can mean many things, this Note defines fake news as unequivocal,
verifiable falsehoods that are intentionally passed off as accurate,
legitimate news.
18
Those who, via the Internet or social media, post
opinions or mistaken falsehoods, republish the fake news of another
12
. West, supra note 1. A false tweet during the Obama presidency wiped out $130 billion
of equity value in a single day. Molly Wood, One Problem with Fake News? It Really, Really
Works, MARKETPLACE (Aug. 27, 2018), https://www.marketplace.org/2018/08/27/one-problem-
fake-news-it-really-really-works/ [https://perma.cc/WV8C-LJWH].
13
. Danielle K. Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad
Samaritans § 230 Immunity, 86 FORDHAM L. REV. 401, 420 (2017) (CDA’s immunity provision
would be unavailable to operators only when they cannot make a cogent argument that they are
behaving reasonably to stop illegal activity).
14
. Lee K. Royster, Fake News: Potential Solutions to the Online Epidemic, 96 N.C. L.
REV. 270 (2017); Benjamin Volpe, From Innovation to Abuse: Does the Internet Still Need
Section 230 Immunity?, 68 CATH. U. L. REV. 597 (2019); Vanessa S. Browne-Barbour, Losing
Their License to Libel: Revisiting § 230 Immunity, 30 BERKELEY TECH. L.J. 1505 (2015); Emma
M. Savino, Fake News: No One is Liable, and That is a Problem, 65 BUFF. L. REV. 1101 (2017).
15
. Dallas Flick, Combatting Fake News: Alternatives to Limiting Social Media
Misinformation and Rehabilitating Quality Journalism, 20 SMU SCI. & TECH. L. REV. 375, 405
(2017).
16
. John Roberts, From Diet Pills to Truth Serum: How the FTC Could be a Real Solution
to Fake News, 71 FED. COMM. L.J. 105, 123 (2018); John Allen Riggins, Law Student Unleashes
Bombshell Allegation You Won't Believe!: “Fake News” as Commercial Speech, 52 WAKE
FOREST L. REV. 1313, 1336 (2017).
17
. Wood, supra note 12 (“a lot of the false news that spreads is not spread for political
reasons. It’s spread for economic reasons.”).
18
. Jessica Stone-Erdman, Just the (Alternative) Facts, Ma’am: The Status of Fake News
Under the First Amendment, 16 FIRST AMENDMENT L. REV. 410, 418 (2017). See also West, supra
note 1.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 103
author, or who otherwise do not intend to widely distribute false writings
online are not the focus of this Note. Additionally, parodies, such as those
published by The Onion, are not included in this Note’s definition of fake
news, as they are protected under the First Amendment
19
and are thus
legally distinguishable from the scope of fake news examined here.
Additionally, parodies are reasonably understood as not describing actual
facts or events,
20
whereas for-profit fake news is written and disseminated
to be reasonably believed.
This Note will argue that the FTC possesses authority under the FTC
Act to combat commercialized fake news as an unfair, deceptive practice
affecting commerce. The FTC should use its rulemaking authority to
develop a regulation imposing civil fines against authors of
commercialized fake news. Such a regulation should be modeled after the
construction of federal criminal possession with intent to distribute
statutes and analogized to the methods of proving intent to distribute
found within a well-developed body of existing case law.
Part I will narrow the focus of this Note and explain why knowingly
falsified fake news stories–intentionally designed to be widely distributed
online for the personal financial gain of the author–constitutes the most
damaging form of fake news. Part II will provide a snapshot of the current
legal framework available to combat fake news and demonstrate why it
ultimately fails to sufficiently discourage the brand of fake news that is
the focus of this Note. Finally, Part III will examine a well-established
body of law to draw comparisons to the issue at hand and suggest
developments that can improve our collective ability to discourage fake
news while more effectively empowering the legal system to seek redress
for the harms fake news causes.
I. THE FINANCIAL INCENTIVES AND PERILS OF FAKE NEWS
Before analyzing the problems posed by fake news in more depth, one
must understand the origin of fake news and why it is so prevalent in
modern society. Though there are many reasons why individuals may
fabricate stories about political or public figures, writers of widely
disseminated fake news stories are most often primarily motivated by
personal economic gain.
21
Websites which display, publish, or promote
fake news commonly make money through pay-per-click advertising
networks such as Google Adsense.
22
An advertiser will agree to a fee that
is paid to the network (Google) for every click their advertisement
19
. Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 57 (1988).
20
. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158 (Tex. 2004).
21
. Royster, supra note 14, at 274.
22
. Joshua Gillen, Punditfact: How Clickbait Ads Make Money for Fake News Sites, TAMPA
BAY TIMES (Oct. 5, 2017), https://www.tampabay.com/news/perspective/punditfact-how-
clickbait-ads-make-money-for-fake-news-sites/2339879/ [https://perma.cc/N7K5-M64L].
104 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
receives. The network will then share a portion of that fee with the
publisher of the fake news website.
23
Anyone can make a website, display
ads on it through an advertising network, and create fake content to lure
internet traffic to their website.
24
The more a fake news story is shared,
the more Internet traffic will be driven to the advertiser’s site and, in turn,
the more money the fake news author can net from advertising clicks.
25
In short, fake news authors are incentivized to write their stories to be
widely believed and shared, such that the fake news is spread to as many
people as possible—maximizing the author’s advertising revenue by
sowing confusion and discord.
Because fake news authors design their stories to be believable, a vast
majority of the public are unable to differentiate real news from fake
news.
26
A poll conducted by Buzzfeed revealed that 75% of American
adults who read a fake news headline believed it,
27
in addition, a survey
conducted by YouGov showed 96% of Britons could not differentiate
fake news from factual reports.
28
Consider Jestin Coler, the owner of Disinfomedia.
29
He oversees
twenty to twenty-five fake news authors who write for his various
websites, earning a profit through advertising.
30
Coler admitted to
receiving between $10,000 and $30,000 a month from knowingly
publishing fake news,
31
yet he insists fake news did not sway the 2016
23
. Id.
24
. Abby Ohlheiser, This is How Facebook’s Fake-News Writers Make Money, WASH.
POST (Nov. 18, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/11/18/this-
is-how-the-internets-fake-news-writers-make-money/ [https://perma.cc/9YCL-Q95M].
25
. Id.; See Wood, supra note 12 (“if false news spreads farther, faster, deeper and more
broadly than the truth, then it incentivizes producers of false news to produce more false news in
order to earn more advertising revenue.”).
26
. Elisabeth Perlman, Fool’s Gold: Remove the Financial Incentive of Fake News,
VERDICT (Feb. 15, 2017), https://www.verdict.co.uk/fools-gold-remove-financial-incentive-fake-
news/ [https://perma.cc/6ZLE-3JNJ].
27
. Craig Silverman & Jeremy Singer-Vine, Most Americans Who See Fake News Believe
It, New Survey Shows, BUZZFEED NEWS (Dec. 6, 2016), https://www.buzzfeednews.com/article/
craigsilverman/fake-news-survey#.vhYMPe78W [https://perma.cc/PD2Q-AMKL].
28
. Jessica Goodfellow, Only 4% of people can distinguish fake news from truth, Channel
4 study finds, THE DRUM (Feb. 6, 2017), https://www.thedrum.com/news/2017/02/06/only-4-
people-can-distinguish-fake-news-truth-channel-4-study-finds [https://perma.cc/WF58-AGGB].
29
. Laura Sydell, We Tracked Down a Fake-News Creator in the Suburbs. Here’s What We
Learned, NPR (Nov. 23, 2016, 3:31 PM), https://www.npr.org/sections/alltechconsidered/2016/
11/23/503146770/npr-finds-the-head-of-a-covert-fake-news-operation-in-the-suburbs [https://
perma.cc/U9DB-PTQJ].
30
. Id.
31
. Id. Paul Horner, a fake news writer, makes $10,000 per month and Macedonian
teenagers can make up to $5,000 per month. Ohlheiser, supra note 24. A fake news share from a
person within the Trump campaign earns a fake news author as much as $10,000 in extra revenue.
Id.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 105
election.
32
Research, however, suggests otherwise. In fact, in the three
months leading up to the 2016 election, fake news received more
attention (shares, comments, likes) than real news on Facebook.
33
Consequently, one study linked this rise in fake news attention to a
defection of voters who formerly supported Barack Obama away from
Hillary Clinton.
34
Publication of fake news significantly impacts voter
opinion, with a well-informed electorate becoming misguided.
Fake news is able to disseminate rapidly and receive widespread
attention and acceptance in large part due to social media. As just one
example, a fake news story published by Disinfomedia, claiming that a
FBI agent involved in leaking Hillary Clinton’s emails was killed,
received 1.6 million views in just ten days.
35
Some fake news stories are
even shared by political figures, which serves to validate the fake news’s
source in the public’s eyes, thereby helping fake news garner further
acceptance.
36
Not only does the proliferation of fake news seriously affect voter
opinion, it also affects society in other dangerous ways. For example, one
of Coler’s falsified stories that claimed Colorado food stamp recipients
were using benefits to buy marijuana resulted in proposed legislation in
the Colorado House banning such activity.
37
More famously, on
December 4, 2016, Edgar Maddison Welch fired three shots inside Comet
Ping Pong, a Washington, D.C. pizzeria, after he traveled 350 miles from
Salisbury, North Carolina, to investigate a fake news story which claimed
32
. Sydell, supra note 29.
33
. Savino, supra note 14, at 1102. Craig Silverman, This Analysis Shows How Fake News
Stories Outperformed Real News Stories on Facebook, BUZZFEED NEWS (Nov. 16, 2016,
4:15 PM), https://www.buzzfeednews.com/article/craigsilverman/viral-fake-election-news-
outperformed-real-news-on-facebook [https://perma.cc/4Q2P-46H3] (In the three months leading
up to the 2016 election, the top 20 fake news stories received 8.7 million comments, likes, shares;
the top 20 news articles from the mainstream media (19 major news outlets combined) received
only 7.3 million, a decline from 12 million earlier that year).
34
. Richard Gunther, Paul A. Beck & Erik C. Nisbet, Fake News May Have Contributed to
Trump’s 2016 Victory (Mar. 8, 2018), https://www.documentcloud.org/documents/4429952-
Fake-News-May-Have-Contributed-to-Trump-s-2016.html [https://perma.cc/F5AW-HLQ2].
35
. Sydell, supra note 29.
36
. Ohlheiser, supra note 24. Eric Trump and Corey Lewandowski, Trump’s then-
campaign manager, shared one of Paul Horner’s fake news stories that the Amish were
committing their vote to Donald Trump. Sally French, This Person Makes $10,000 a Month
Writing Fake News, MARKETWATCH (Nov. 18, 2016, 3:27 AM), https://www.marketwatch.com/
story/this-person-makes-10000-a-month-writing-fake-news-2016-11-17 [https://perma.cc/4BBE
-VUKU]. Lewandowski shared another one of Horner’s fake news stories which falsely described
a person was paid $3,500 to be a Trump protester. Caitlin Dewey, Facebook Fake-News Writer:
‘I Think Donald Trump is in the White House Because of Me,’ WASH. POST (Nov. 17, 2016, 6:00
AM), https://www.washingtonpost.com/news/the-intersect/wp/2016/11/17/facebook-fake-news-
writer-i-think-donald-trump-is-in-the-white-house-because-of-me/ [https://perma.cc/TYB7-Z5
AK].
37
. Sydell, supra note 29.
106 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
that Hillary Clinton was involved in a child sex-slave ring run in Comet
Ping Pong’s basement.
38
Despite the intense media coverage and
ubiquitous consensus that the story was fake, a poll conducted by
YouGov between Dec. 17-20, 2016 found that 46% of Trump supporters
believed that leaked Hillary Clinton campaign emails discussed
pedophilia and human trafficking.
39
Even Edgar Maddison Welch,
following the incident and his subsequent arrest, refused to dismiss the
claims he set out to investigate as false.
40
The criminal and potentially
deadly actions of Welch were inspired by the publication of a fake news
story, illustrating the dangerous ramifications fake news poses to our
democracy and to anyone enjoying a slice of pizza.
Following the 2016 election, advertisement networks expressed their
intent to combat the issue of fake news. Google told Reuters that it would
restrict ads on sites that “misrepresent, misstate, or conceal information
about . . . the publisher’s content . . . .”
41
Yet, a 2019 study by the Global
Disinformation Index, which examined 20,000 websites that published
misinformation, found that Google provided AdSense services to 70% of
these websites and accounted for 37% of their revenue, $86 million
annually, more than any other advertisement company.
42
Networks such
as Google and Facebook profit greatly from fake news,
43
thus they are
likely to be resistant to adopting policies that effectively combat the
issue.
44
The impact of fake news authorship and the “existential threat” it
poses to democracy requires a reexamining of current legal frameworks
38
. Adam Goldman, The Comet Ping Pong Gunman Answers Our Reporter’s Questions,
N.Y. TIMES (Dec. 7, 2016), https://www.nytimes.com/2016/12/07/us/edgar-welch-comet-pizza-
fake-news.html [https://perma.cc/98LW-SQAG].
39
. Kathy Frankovich, Belief in Conspiracies Largely Depends on Political Identity,
YOUGOV (Dec. 27, 2016), https://today.yougov.com/topics/politics/articles-reports/2016/12/27/
belief-conspiracies-largely-depends-political-iden [https://perma.cc/ZZZ4-8C73].
40
. Goldman, supra note 38.
41
. Daniel Funke, Susan Benkelman & Cristina Tardáguila, Factually: How
Misinformation Makes Money, AM. PRESS INST. (Sept. 26, 2019), https://www.americanpress
institute.org/fact-checking-project/factually-newsletter/factually-how-misinformation-makes-
money/ [https://perma.cc/B5KW-7HXA].
42
. Id.
43
. David Kirkpatrick, Questions Linger Over How Much Ad Revenue Fake News
Generates for Facebook, MARKETING DIVE (Nov. 28, 2016), https://www.marketingdive
.com/news/questions-linger-over-how-much-ad-revenue-fake-news-generates-for-facebook/431
149/ [https://perma.cc/K7GH-VUQD] (suggesting that fake news could have accounted for up to
half of Facebook’s ad revenue in the months leading up to the 2016 election). Both Google and
Facebook could lose revenue if they shut down fake news sites – Facebook benefits whenever
something goes viral, regardless if it’s true or not. Ohlheiser, supra note 24. See also Perlman,
supra note 26 (noting Facebook financially benefits from hosting fake news platforms).
44
. Peter Cohen, Does Facebook Generate Over Half of Its Ad Revenue From Fake News?,
FORBES (Nov. 25, 2016), https://www.forbes.com/sites/petercohan/2016/11/25/does-facebook-
generate-over-half-its-revenue-from-fake-news/?sh=4cdef9e8375f [https://perma.cc/MGJ6-XH
29].
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 107
in order to provide meaningful policies to remove fake news from our
democratic society.
45
II. EXISTING LEGAL AVENUES DO NOT PROVIDE
MEANINGFUL SOLUTIONS
Despite the risks associated with fake news, current legal frameworks
do not provide viable pathways to effectively prevent the widespread
dissemination of fake news by authors seeking commercial gain. This
section will explore three obstacles that currently prevent the legal system
from effectively combating fake news. To begin, Part A will discuss the
First Amendment protections given to speech and how they stymie efforts
to control fake news through legislation. Next, Part B will show why
expanding defamation law is not a viable solution and how the current
state of defamation law fails to provide adequate incentives for those
harmed to bring suit. Finally, Part C will discuss how Section 230 of the
Communications Decency Act protects social media from liability and
accountability by not requiring Internet service providers to implement
any measures to combat fake news.
A. First Amendment Limitations
The First Amendment to the U.S. Constitution promotes the free
exchange of ideas, no matter how unpopular or offensive.
46
The robust
Free speech protections in the United States, as discussed below, block
efforts to control fake news through the legislative process and
complicate efforts to seek remedies through defamation law. These
protections are especially robust in cases concerning political speech,
which enjoys the strongest protection under the First Amendment.
47
Political speech enjoys heightened protections because it is essential to
public discourse.
48
Accordingly, the First Amendment seeks to prevent a
majority government from suppressing the views of the minority.
49
Unlike some other countries, the United States has failed to adopt
legislative measures to control fake news, largely because the First
Amendment bars Congress from passing any law “abridging the freedom
45
. Eric Clemons, Why Fake News Campaigns are so Effective, KNOWLEDGE@WHARTON
(Oct. 3, 2018), https://knowledge.wharton.upenn.edu/article/build-fake-news-campaign/ [https://
perma.cc/N24M-YDRC].
46
. JP Perry, Defamation and the First Amendment: Protecting Free Speech While
Promoting Accountability Under Trump, 21 CUNY L. REV. 259, 259 (2018).
47
. R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our
First Amendment decisions have created a rough hierarchy in the constitutional protection of
speech. Core political speech occupies the highest, most protected position . . . .”).
48. Riggins, supra note 16, at 1316.
49
. Id.
108 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
of speech, or of the press.”
50
Under Supreme Court jurisprudence, any
law that restricts speech based on its content is subject to judicial strict
scrutiny.
51
Strict scrutiny review of a content-based law requires the
government to demonstrate that the law is necessary to serve a
compelling state interest and is narrowly drawn to achieve that interest.
52
Additionally, the Supreme Court in Brown v. Entertainment Merchants
Ass’n established that the government must show a direct causal link
between the regulated speech and the problem to be solved.
53
Consider a bill proposed in 2017 by California assembly member Ed
Chau as an example of the difficulties in combatting fake news through
legislation.
54
Chau attempted to amend The California Political
Cyberfraud Abatement Act to combat the spread of fake news by adding
Section 18320.5, which read:
It is unlawful for a person to knowingly and willingly make,
publish or circulate on an Internet Web site, or cause to be
made, published, or circulated in any writing posted on an
Internet Web site, a false or deceptive statement designed to
influence the vote on either of the following:
(a) Any issue submitted to voters at an election.
(b) Any candidate for election to public office.
55
The proposed amendment was met with immediate backlash, with
opponents calling it “obviously unconstitutional” under the Supreme
Court’s case law.
56
Concerns about the amendment regarded its potential
to allow public officials to rampantly hurl criminal accusations at each
other and how the amendment would affect satire and parody, as well as
who would have the power to determine what was is and is not “fake
50
. U.S. CONST. amend. I.
51
. Roberts, supra note 16, at 113. “Content-based laws are defined as those targeting
speech based on its communicative content.” See supra note 50. Any legislative measure adopted
by a state or the federal government that attempts to limit fake news would be considered a
content-based law.
52
. Id. at 113-14. See Annie C. Hundley, Fake News and the First Amendment: How False
Political Speech Kills the Marketplace of Ideas, 92 TUL. L. REV. 497, 504 (2017) (explaining that
content-based laws rarely survive strict scrutiny).
53
. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011).
54
. Dave Mass, California Bill to Ban “Fake News” Would be Disastrous for Political
Speech, EFF (Mar. 27, 2017), https://www.eff.org/deeplinks/2017/03/california-bill-ban-fake-
news-would-be-disastrous-political-speech [https://perma.cc/6V7C-M5FJ].
55
. Cal. Political Cyberfraud Abatement Act, sec. 18320, AB 1104 § 18320.5,
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1104 [https://
perma.cc/T5E7-CJXL].
56
. Mass, supra note 54.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 109
news”?
57
Ultimately, the bill was removed from its scheduled committee
hearing at the last minute and was never adopted.
58
Although this
proposed, content-based amendment seemingly offers a compelling state
interest—protecting against attacks designed to sway an election—it
would almost certainly fail a court’s strict scrutiny analysis.
First, California would need to prove a direct causal link between
“false and deceptive statements” and actual influence upon the outcomes
of elections.
59
Second, the state would need to demonstrate that the
influence on elections is not simply “small and indistinguishable from
effects produced by other media.”
60
This would be difficult to prove
beyond anecdotal and ambiguous evidence
61
because there are many
factors that influence voters, and research points in both directions.
62
Even if the government could demonstrate a direct causal link between
fake news and harm to election results, it would then also need to prove
the law was narrowly drawn to achieve the interest.
In addition to proving this causal link, the “narrowly tailored” prong
of strict scrutiny requires that the government use the least restrictive
method possible for achieving its asserted compelling interest of
regulating fake news.
63
This would require the government to prove the
ineffectiveness of three alternative, less-restrictive means of preventing
voters from being misled by fake news: counter speech,
64
education, and
self-regulation. These approaches are viable alternatives to legislation
criminalizing fake news and would likely be found by a court to be
effective means for achieving the state’s interest. The foregoing analysis
57
. Id.; Becket Adams, California Takes Another Swing at First Amendment, WASH.
EXAMINER (Mar. 31, 2017, 6:08 PM), https://www.washingtonexaminer.com/california-takes-
another-swing-at-the-first-amendment [https://perma.cc/783F-AJMF].
58
. David Kravets, Alternative Facts Alert: Proposed Legislation Bans Fake News,
ARSTECHNICA (Mar. 28, 2017), https://arstechnica.com/tech-policy/2017/03/alternative-facts-
alert-proposed-legislation-bans-fake-news/ [https://perma.cc/9NYW-VYA4].
59
. Brown, 564 U.S. at 786.
60
. Id.
61
. Clay Calvert et. al., Fake News and the First Amendment: Reconciling A Disconnect
Between Theory and Doctrine, 86 U. CIN. L. REV. 99, 110 (2018).
62
. Compare Krysten Crawford, Stanford Study Examines Fake News and the 2016
Presidential Election, STAN. NEWS (Jan. 18, 2017), https://news.stanford.edu/2017/01/18/
stanford-study-examines-fake-news-2016-presidential-election/ [https://perma.cc/XPY6-F55Q]
(finding that the impact of fake news may not have had an impact on the outcome of the election),
with supra note 34 (finding that, due to the very narrow margin of victory in 2016, may have had
an impact on the outcome of the election.).
63
. U.S. v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000) (“If a less restrictive alternative
would serve the Government’s purpose, the legislature must use that alternative.”). When a less
restrictive means is offered to a content-based restriction, the burden shifts to the government to
show the ineffectiveness of the proposed less restrictive means. Calvert et al., supra note 61.
64
. Infra note 165.
110 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
of Section 18320.5 illustrates why legislation designed to restrict fake
news faces a steep uphill battle in court.
65
False reporting statutes are the closest that a legislative body in the
United States has come to taking action against misinformation. Such
statutes limit the circulation of false reports of criminal activity or natural
catastrophes to the public.
66
False reporting statutes are constitutionally
permissible because certain categories of “low-value”
67
speech fall
outside of First Amendment protection.
68
Although these statutes have
been codified in state legislatures for many years, they are seldom used
in the context of online speech.
69
This is because the Supreme Court in
Reno v. ACLU held that the Internet is a modern-day forum for Justice
Holmes’ marketplace of ideas theory of free expression
70
and determined
that there is “no basis for qualifying the level of First Amendment
scrutiny . . . to this medium.”
71
B. Tort Law Limitations
Expanding the types of remedies available under tort law to include
those arising out of harms caused by fake news publication is not a
feasible option. Defamation is an existing cause of action that allows an
individual to recover for reputational harm caused by another’s false
speech.
72
Defamation laws, however, exist in tension with the First
Amendment, especially in the context of fake news.
73
Strengthening
defamation laws may place increased restrictions on publications, thereby
“chilling” free speech, something courts are likely to oppose.
74
An
individual’s reputational rights harmed by the spread of fake news are far
outweighed by the interests of Free Speech in the modern public forum
of the Internet.
75
65
. Playboy, 529 U.S. at 818 (“It is rare that a regulation restricting speech because of its
content will ever be permissible.”).
66
. Louis W. Tompros, Richard A. Crudo, Alexis Pfeiffer & Rahel Boghossian, The
Constitutionality of Criminalizing False Speech Made on Social Networking Sites in a Post-
Alvarez, Social Media-Obsessed World, 31 HARV. J.L. & TECH. 65, 82 (2017).
67
. Those categories include: “incitement, libel, obscenity, defamation, speech integral
to criminal conduct, fighting words, child pornography, fraud, true threats, and speech presenting
some grave and imminent threat the government has the power to prevent.” Id. at 89.
68
. Speech that falls within these categories is typically subject to rational basis review, a
highly deferential standard under which a law is almost always upheld. Id.
69
. Id. at 82.
70
. False or otherwise misleading speech must be allowed to compete unrestrained with
other speech, which false speech can be tested and refuted. Id. at 87.
71
. Reno v. Am. C.L. Union, 521 U.S. 844, 870 (1996).
72
. Perry, supra note 46, at 259.
73
. Id.
74
. Royster, supra note 14, at 274.
75
. Id. at 287.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 111
In the case of New York Times Co. v. Sullivan, where an Alabama
public official, L.B. Sullivan, sued the New York Times, the Supreme
Court considered for the first time the constitutionality of common law
defamation. The Court concluded that state defamation laws are limited
by the First Amendment’s protection of political speech, holding that, to
succeed on a claim of defamation, a public official plaintiff must prove
actual malice—that the defamatory statement at issue was known by the
defendant to be false or was published by the defendant with reckless
disregard for its truth or falsity.
76
A public official suffering reputational
or political harm from fake news may well be able to prove knowing
falsity or reckless disregard. So, why has the nation not seen public
figures such as Hillary Clinton, as per the fake news stories mentioned in
Part I,
77
sue in response to such particularly damaging fake news
stories?
78
Defamation fails to provide sufficient incentives and policy options to
adequately engage the problem of fake news. The significant time and
costs required to bring a defamation lawsuit serve to make defamation
litigation a non-option for many parties who may have faced injury due
to fake news. First, due to anonymity on the Internet and the difficulty
and cost of identifying the source of an online story, it can be onerous to
locate defendants against whom to bring a claim.
79
Second, litigating a
libel suit is both time consuming and expensive for plaintiffs. While
perhaps most public officials could handle the costs, the defendant is
unlikely to possess the deep pockets necessary to pay damages if a verdict
is returned for the public official. Those parties that do have the fiscal
resources to justify the costs of litigation—Facebook, Google, and
YouTube, for instance—are already protected from liability with the
immunity provided by Section 230 of the Communications Decency Act
(discussed below). Third, and most important, it would be detrimental to
the public official to keep the false allegations within the public’s
attention for months or years during the lawsuit.
80
Proving actual malice,
though possible, is arduous and would involve depositions and perhaps
testimony in court from the public official, exposing them to unwanted
publicity and perhaps damaging their reputation more than the lawsuit
can repair the original injury.
81
76
. Jennifer Benedict, Deafening Silence: The Quest for a Remedy in Internet Defamation,
39 CUMB. L. REV. 475, 480 (2009).
77
. Goldman, supra note 38.
78
. Steven Seidenberg, Lies and Libel: Fake News Lacks Straightforward Cure, A.B.A.
(July 1, 2017), https://www.abajournal.com/magazine/article/fake_news_libel_law [https://
perma.cc/6NMG-47D8].
79
. Royster, supra note 14, at 274.
80
. Seidenberg, supra note 78.
81
. Id.
112 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
C. Section 230
The Communications Decency Act (CDA) was originally adopted to
prevent minors from accessing sexually explicit material on the Internet
by making it illegal to expose them to obscene or indecent content.
82
Following the signing of the Act into law by President Bill Clinton, it was
immediately challenged by the ACLU for violating the First
Amendment.
83
In 1997, the Supreme Court struck down the majority of
the law as an unconstitutional restriction of free speech in the case of
Reno v. ACLU.
84
Only one provision survived—Section 230.
85
Congress
included Section 230 in the CDA in response to the paradox created by
the lower court decisions in Stratton Oakmont, Inc. v. Prodigy Services,
Co. and Cubby, Inc. v. CompuServe, Inc.
86
Under these rulings, Internet-
based companies that filtered the content available on their platforms
would be held liable under common law publisher liability, while those
companies that ignored problematic posts escaped liability altogether.
87
However, the broad interpretation of Section 230 creates freedom from
liability for Internet service providers for any defamatory material
published on the providers’ websites, regardless of whether or not they
exercise editorial control of their website’s content.
88
The provisions in
Section 230 grant Internet service providers broader protection from
defamation liability than what is granted to television and print
broadcasters.
89
Some proposed solutions to the fake news problem call
for amending the protections of Section 230 to require more
responsibility from online service providers in combatting fake news.
One such proposed solution is to impose a modified version of
common law distributor liability, which would hold Internet service
providers, including social media websites, responsible for the fake news
which they know is posted to their platforms.
90
Another proposition
82
. Sara Ziegler, Communications Decency Act of 1996 (1996), FIRST AMENDMENT
ENCYCLOPEDIA (last visited Nov. 30, 2020), https://www.mtsu.edu/first-amendment/article/
1070/communications-decency-act-of-1996 [https://perma.cc/CZ92-HFA9]; Ambika Doran &
Tom Wyrwich, Section 230 of the Communication Decency Act Turns 20, LAW360 (Sept. 7,
2016, 12:27 PM), https://www.law360.com/articles/836281/section-230-of-the-communications-
decency-act-turns-20 [https://perma.cc/Q8P4-2CHM].
83
. Ziegler, supra note 82.
84
. Reno, 521 U.S. at 844.
85
. Benedict, supra note 76, at 484.
86
. Andrea Butler, Protecting the Democratic Role of the Press: A Legal Solution to Fake
News, 96 WASH. L. REV. 419, 431–32 (2018); Doran & Wyrwich, supra note 82.
87
. Butler, supra note 86, at 432
88
. Id. at 434. In Zeran v. American, the court reasoned that Congress intended the CDA to
shield both publishers and distributors. Id. at 433. This, in effect, continues to shield websites that
curate or promote certain postings to users. Id.
89
. Id. at 433.
90
. Id. at 435.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 113
would suggest adding a reasonableness standard to Section 230 by
requiring that reasonable steps be taken by Internet service providers to
combat certain types of content in return for immunity from liability.
91
However, imposing increased responsibility on content forums,
considering the immense amount of activity on the most popular
websites, simply shifts the burden to those who are not responsible for
the original content. Furthermore, social media giants now are taking
steps to better police their forums
92
and are likely to comply with the
reasonableness standard suggested. But there is speculation that fake
news authors will simply adapt to the new community standards to retain
their revenue streams.
93
III. MODELING INTENT TO DISTRIBUTE
Rather than create new laws that would have to survive strict scrutiny
or grapple with Internet service providers and their immunity from
liability under Section 230, the issues surrounding fake news should
instead be handled by an agency that currently possesses the means and
authority to do so—the FTC.
94
Regulation by the FTC has drawn recent
attention as a possible solution to curb the dissemination of fake news.
However, the FTC’s current approach to the fake news issue does not
serve the same interest that is necessary to provide a comprehensive
solution to the focus of this Note. The FTC directs the majority of its
resources towards the exchange of commodities. FTC regulation combats
“posting misinformation about a product, and then selling the
product . . .,” whereas the “consumers” of a fake story have not purchased
such a “product” in the traditional sense.
95
The dissemination of fake
news is thus currently outside of the scope of the FTC’s concern. But,
because fake news generates revenue for the author, the FTC should
consider the dissemination of fake news to be a type of fraudulent
commercial activity, which would be under the purview of the FTC’s
authority. With this approach, FTC regulation, modeled after a theory of
an intent to distribute, can provide a solution for fake news most
detrimental to society.
Part A will explain the current approach being taken by the FTC, Part
B will explain the authority of the FTC and why fake news falls within
the scope of their authority, and Part C will discuss why the FTC should
91
. Citron & Wittes, supra note 13, at 419.
92
. Instagram and Facebook introduce features to combat fake news and bullying,
MARKETING TECH (Dec. 17, 2019), https://www.marketingtechnews.net/news/2019/dec/17/
instagram-facebook-features-combat-fake-news-and-bullying/ [https://perma.cc/8STN-HPB5].
93
. Ohlheiser, supra note 24.
94
. Roberts, supra note 16, at 112.
95
. Stone-Erdman, supra note 18, at 429.
114 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
adopt a rule modeled after statutory intent to distribute and impose civil
fines in order to provide a meaningful solution to fake news.
A. The Current Approach by the FTC
In FTC v. Leadclick Media, LLC, the Second Circuit held that “a
defendant may be liable for deceptive practices that cause a consumer
harm if, with knowledge of the deceptive nature of the scheme, he either
participates directly in the practices or acts or has authority to control
them.”
96
Leadclick Media, LLC participated in and controlled “fake news
websites” that drove Internet traffic to an online retailer.
97
This assertion
of the FTC’s authority, in bringing this action against Leadclick Media,
demonstrates the Commission’s potential to effectively discourage the
dissemination of fake news, which similarly involves moving Internet
traffic for commercial gain.
B. FTC Regulation
Generally, the FTC may prosecute any inquiry necessary to carry out
its duties and is authorized to investigate the business, conduct, and
practices of any person engaged in, or whose business affects,
commerce.
98
The FTC accordingly has two meaningful ways to combat
fake news: Section 5(a) enforcement and rulemaking under Section 18.
1. Enforcement
FTC enforcement must be preceded by an investigation.
99
The FTC
may conduct any investigation necessary to carry out its duties and gather
information concerning the business or practice of any person,
partnership, or corporation engaged in or whose business affects
commerce, except certain financial institutions.
100
Under Section 9 of the
FTC Act, the FTC may use subpoenas to compel testimony by the
witnesses of all documentary evidence relating to any matter under
investigation.
101
Additionally, under Section 6, the Commission can force
business entities to answer specific questions about themselves.
102
Following an investigation, the Commission has the authority to initiate
96
. Fed. Trade Comm’n v. Leadclick Media, LLC, 838 F.3d 158, 169 (2nd Cir. 2016).
97
. Id.
98
. A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement,
and Rulemaking Authority, FTC (Oct. 2019), https://www.ftc.gov/about-ftc/what-we-do/
enforcement-authority [https://perma.cc/X5L6-CMSP] [hereinafter A Brief Overview].
99
. Id.
100
. Id.
101
. Id.
102
. Id.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 115
an enforcement action using either administrative or judicial processes if
it has “reason to believe” the law is being violated.
103
Section 5(a) states that “unfair or deceptive acts or practices in or
affecting commerce . . . are . . . declared unlawful.”
104
Deceptive
practices involve a material misrepresentation, omission, or other
practice that is likely to mislead a consumer acting reasonably under the
relevant circumstances.
105
Unfair practices are those which cause, or are
likely to cause, a substantial injury to consumers that is not reasonably
avoidable by consumers themselves and is not outweighed by
countervailing benefits to consumers or competition.
106
The fake news at issue in this Note falls well within the authority of
the FTC, given that such fake news is classifiable as a deceptive practice
and might, in fact, be considered an unfair practice as well for the
following reasons. First, the advertising revenue generated by these fake
news stories should unquestionably be considered commerce. Section 44
of the FTC Act defines commerce as including “commerce among the
several states.”
107
The dissemination of fake news reaches all corners of
the United States, and the authors collect revenue based on clicks
(engagement with fake news) that transverse state lines.
108
Next, the
nature of the scheme employed by fake news authors is deceptive because
the authors materially misrepresent fabricated content as legitimate news
stories, target vulnerable consumers,
109
and generate click revenue
through the consumer’s false and misled belief that the content of the
author’s website and stories are accurate.
110
Additionally, the for-profit
103
. Id.
104
. Id.
105
. Id.
106
. Id.
107
. Fed. Trade Comm’n v. Pointbreak Media, LLC, 376 F. Supp. 3d 1257, 1282 (2019).
108
. Callum Borchers, How the Federal Trade Commission could (maybe) crack down on
fake news, WASH. POST (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.com/news/the-
fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/
[https://perma.cc/KV36-J6US] (Acknowledging that fake news websites are engaged in
commerce in that they sell advertisements).
109. Certain demographics of Internet users are more vulnerable to believe and share fake
news. Older users of social media (above 65 years and older) may be more vulnerable to believing
fake news because they have less experience using the Internet and, generally, are more trusting.
Paula Span, Getting Wise to Fake News, N.Y. Times (Sept. 11, 2020), https://www.nytimes.com/
2020/09/11/health/misinformation-social-media-elderly.html [https://perma.cc/7GUR-FE7C]. In
addition, older users are targets because they tend to be more likely to vote in elections. Id. Fake
news authors can also use targeted advertising based on user’s ideologies. A University of
Colorado Boulder study found that users on the most extreme ends of both sides of the political
spectrum were responsible for more than half of the fake news stories circulated in their study.
Who Shares the Most Fake News? New Study Sheds Light, CU BOULDER TODAY (June 17, 2020),
https://www.colorado.edu/today/2020/06/17/who-shares-most-fake-news-new-study-sheds-light
[https://perma.cc/HG23-5XNK].
110
. Roberts, supra note 16, at 112.
116 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
dissemination of fake news should additionally be considered unfair
under Section 5(a), as legitimate news organizations rely on, and compete
for, the same advertising revenue that fake news websites garner through
fraud. Legitimate news organizations are thus injured by fake news
stories, and there is no countervailing benefit from the confusion and
injury that fake news causes.
111
Thus, because of the nature and ubiquity
of fake news, and the lack of any countervailing benefit to its existence,
the FTC should undertake a rulemaking procedure in lieu of individually
adjudicating claims against purveyors of fake news.
2. Rulemaking
Under Section 18 of the FTC Act, the FTC is authorized to develop
rules which “define with specificity acts or practices which are unfair or
deceptive acts or practices in or affecting commerce” within the meaning
of Section 5(a)(1) of the Act.
112
Section 57a(b)(3) requires the FTC to
believe that any unfair or deceptive practices which the FTC seeks to
address through rulemaking occur commonly and are “prevalent.”
113
Finally, once a rule is promulgated, anyone who violates said rule while
possessing actual or fairly implied knowledge that their practice is unfair
or deceptive is liable for civil penalties.
114
However, any person that
violates a rule, regardless of intent, is liable for any injury which the
violation caused to consumers, a lesser penalty than the civil penalty
noted above.
115
The FTC has the requisite rulemaking authority to develop a rule
regarding the authoring and distribution of for-profit fake news because,
as argued in the prior section, such a practice (1) is deceptive due to the
inherent falsity of the stories that are disseminated to generate advertising
revenue and (2) affects commerce, given that these revenue-driven fake
news stories unfairly compete for advertising dollars with truthful content
produced by authentic news organizations. The FTC currently regulates
deceptive advertising under 15 U.S.C. § 52 (a).
116
The FTC’s authority
under this section should be interpreted to also provide it with the ability
111
. Claire Atkinson, Fake News Causes ‘Irreversible Damage’ to Companies – and Sink
Their Stock Price, NBC NEWS (Apr. 25, 2019), https://www.nbcnews.com/business/business-
news/fake-news-can-cause-irreversible-damage-companies-sink-their-stock-n995436 [https://
perma.cc/VA3L-QSGU].
112
. A Brief Overview, supra note 98.
113
. 15 U.S.C. § 57a(b)(3). “The Commission may use rulemaking to address unfair or
deceptive practices or unfair methods of competition that occur commonly, in lieu of relying
solely on actions against individual respondents.” A Brief Overview, supra note 98.
114
. A Brief Overview, supra note 98.
115
. Id.
116
. “[P]erson, partnership or corporation to disseminate, or cause to be disseminated, any
false advertisement . . . having an effect upon commerce of food, drugs, devices, services or
cosmetics.” 15 U.S.C. § 52(a).
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 117
to regulate fake news. Congress has given the FTC expansive authority
to regulate false advertising as commercial speech because of its tendency
to mislead the public.
117
Fake news distributed to generate advertising
revenue, just as with false advertising, is knowingly false, is disseminated
for economic gain, and has a tendency to mislead the public. Furthermore,
fake news should fall within the FTC Act’s broad delegation of regulating
authority to address “practices that the Commission determines are
against public policy for other reasons.”
118
Rulemaking is an appropriate
step by the FTC because fake news is a prevalent problem, recently
becoming more impactful than real news on social media.
119
By issuing
a rule, the FTC will establish an industry-wide, bright-line standard
regarding what constitutes improper practices, such as the act of profiting
from the dissemination of fake news.
120
An FTC rule will provide clarity
about the narrow scope of the rule thereby assuaging concerns about a
chilling effect on free speech.
121
Additionally, a regulation adopted by the FTC would provide the most
effective method of combatting fake news because it is likely to survive
a constitutional challenge. This is due to the fact that the regulated content
(fake news) would constitute commercial speech, and the regulation
would therefore be subject to a lower standard of judicial scrutiny than
are regulations targeting core political speech. Additionally, because fake
news is, by definition, false and misleading speech it would fail the first
facet of the Central Hudson test and would thus be stripped of any First
Amendment protection.
122
Further, by attaching civil fines to the clearly
defined unlawful practice of knowingly writing fake news with the intent
117
. Amanda Z. Naprawa, Don’t Give Your Kid That Shot!: The Public Health Threat Posed
by Anti-Vaccine Speech and Why Such Speech Is Not Guaranteed Full Protection Under the First
Amendment, 11 CARDOZO PUB. L. POL’Y & ETHICS J. 473, 507 (2013).
118
. Fed. Trade Comm’n v. Ind. Fed’n of Dentists, 476 U.S. 447, 454 (1986).
119
. Silverman, supra note 27; Peter Dizikes, Study: On Twitter, False News Travels Faster
Than True Stories, MIT NEWS (Mar. 8, 2018), http://news.mit.edu/2018/study-twitter-false-news-
travels-faster-true-stories-0308 [https://perma.cc/Q24Q-PGRG] (finding that fake news stories
are 70% more likely to be retweeted than true stories and spread faster, deeper, and more broadly
than true stories). An Oxford University study of 22 million tweets in the final weeks before the
election found that on average for every story produced by a professional news organization, one
polarizing story was produced from a nonprofessional news organization. Denise Clifton, Fake
News on Twitter Flooded Swing States That Helped Trump Win, MOTHER JONES (Sept. 28, 2017,
1:00 AM), http://www.motherjones.com/politics/2017/09/fake-news-including-from-russian-
sources-saturated-battleground-states-trump-barely-won/ [https://perma.cc/2J8S-NNY3].
120
. Riggins, supra note 16, at 1326.
121
. Richard Schmidt, Jr. & Robert Clifton Burns, Proof or Consequences: False
Advertising and the Doctrine of Commercial Speech, U. CIN. L. REV. 1237, 1290 (1988).
122
. Roberts, supra note 16, at 121. See also Naprawa, supra note 117, at 507 (“[W]here the
commercial speech is false or inherently misleading, the First Amendment does not provide even
a residual level of protection and the Central Hudson test does not even apply.”).
118 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
to distribute for monetary gain through pay-per-click advertising, the
FTC would discourage fake news by stopping the spread before it starts.
3. Permissible Enforcement as Commercial Speech
Commercial speech is poorly defined by the courts.
123
The Supreme
Court in Central Hudson Gas & Electric Co. v. Public Service
Commission of New York, in recognizing the commonsense distinction
between commercial speech and other varieties of expression, defined
commercial speech simply as “expression related solely to the economic
interests of the speaker and its audience.”
124
The Court also defines
commercial speech as that which “does no more than propose a
commercial transaction.”
125
Although truthful commercial speech concerning lawful goods and
services is protected by the First Amendment,
126
such speech still
receives less protection within the hierarchy of speech values than
political expression, partly because truthful commercial speech is
economically motivated instead of politically driven.
127
Economically
motivated commercial speech is more easily verifiable by its
disseminator and is less likely than noncommercial speech to be chilled
by proper regulation.
128
Furthermore, the government’s legitimate
interest in protecting consumers from commercial harms allows for
commercial speech to be subject to greater government regulation than
noncommercial speech.
129
In Central Hudson,
130
the Supreme Court held
that the government may ban commercial speech that is more likely to
deceive than inform, and that First Amendment protection for
commercial speech exists only if the speech is neither false or
123
. Kerri A. Thompson, Commercial Clicks: Advertising algorithms as Commercial
Speech, VAND. J. OF ENT. & TECH. L. 1019, 1034 (2019); J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 31:139.25 (5th ed. 2021).
124
. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557,
561 (1980).
125
. U.S. v. United Foods, 533 U.S. 405, 409 (2001).
126
. The First Amendment applies to commercial speech because it not only serves the
economic interests of the speaker, but also because advertising disseminates information and
assists consumers. Central Hudson, 447 U.S. at 561–62.
127
. Riggins, supra note 16, at 1313; R.A.V., 505 U.S. at 422 (Stevens, J., concurring)
(“commercial speech . . . [is] regarded as sort of second-class expression . . . ”). Second-class in
comparison to core political speech.
128
. Kasky, 27 Cal. 4th at 962.
129
. Sorrell v. IMS Health Inc., 564 U.S. 552, 579 (2011).
130
. Cent. Hudson Gas, 447 U.S. at 566. In Central Hudson, the Supreme Court established
a four-part test to determine the constitutionality of a regulation of commercial speech: (1) Does
the speech concern illegal activity or constitute false or deceptive advertising that is not protected
by the First Amendment? (2) Is the government’s restriction justified by a substantial government
interest? (3) Does the restriction advance the government’s interest? (4) Is the regulation no more
expansive than necessary to achieve the interest? Id.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 119
misleading.
131
By failing to define commercial speech narrowly,
however, courts have afforded themselves flexibility in future
commercial speech cases to adapt to changing technological
advancements.
132
Inherent in the commercial speech doctrine are two
threshold determinations: (1) deciding if the speech is, in fact,
commercial, and (2) if the speech is commercial, then determining if it is
either false or misleading.
133
Fake news falls well within these threshold determinations inherent in
the doctrine of commercial speech.
a. Whether the Speech is Commercial
Because the degree of protection afforded by the First Amendment
depends on whether speech is commercial or non-commercial, the
aforementioned initial determination requires classifying the expression
at issue as either commercial or non-commercial. The Supreme Court in
Bolger v. Young Drugs Products Corp. identified three relevant
considerations when deciding whether speech is commercial: advertising
format (the extent the speech at issue is an advertisement), reference to a
particular product, and economic motivation.
134
These factors are not
necessarily dispositive, but the existence of all these characteristics
within a given publication strongly supports the conclusion that the
publication at issue constitutes commercial speech.
135
i. Advertising Format
“Advertising” does not need to take the format of a person directly
offering a good or service to a target audience.
136
Moreover, the fact that
a certain expression discusses matters of public concern does not prevent
that expression’s categorization as commercial speech.
137
The ultimate
purpose of the type of fake news discussed in this Note simply serves as
a vessel for misleadingly connecting consumers with advertisements,
motivated by the author’s self-serving economic interest.
138
The
131
. Riggins, supra note 16, at 1320; Va. State Bd. of Pharm. v. Va. Citizens, 425 U.S. 748,
771 (1976) (holding the State may regulate commercial speech which is false, deceptive,
misleading, or which proposes illegal transactions).
132
. Riggins, supra note 16, at 1321. Kerri A. Thompson, Commercial Clicks: Advertising
Algorithms as Commercial Speech, VAND. J. ENT. & TECH. L. 1019, 1034 (1980) (stating that
commercial speech is not limited to traditional advertisements); Zauderer v. Off. of Disciplinary
Couns. of Supreme Ct. of Ohio, 471 U.S. 626, 637 (1985) (casting doubt upon the precise bounds
of the category of commercial speech).
133
. Riggins, supra note 16, at 1321.
134
. Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1116 (9th Cir. 2021).
135
. Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 958 (9th Cir. 2012).
136
. Kasky, 27 Cal. 4th at 960.
137
. Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 68 (1983).
138
. Id. at 65.
120 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
advertising format of both traditional commercial speech advertisements
and fake news successfully markets goods and services to consumers and
generates a profit through consumer engagement.
139
The sole and
insignificant distinction between these two formats is their commercial
subject. The commercial subject of a traditional advertisement is a good
or service, whereas the commercial subject of a fake news article is the
advertisement itself, veiled by a fabricated news story which is intended
solely to disseminate the advertisement to more consumers. Hence, just
like a traditional advertisement, the essential function of fake news is to
propose a commercial transaction. This, in turn, should favor a finding
that such fake news is commercial speech. The idea that fake news would
be able to escape the reach of the commercial speech doctrine because of
an insignificant difference in the advertising format of its commercial
expression, as compared to more traditional advertisements, is
impracticable.
ii. Product Reference
The failure to reference a specific product is a relevant consideration
in the commercial speech determination, but it is far from dispositive
where expression other than product advertising is concerned.
140
In
Jordan v. Jewel Food Stores, Inc., the Seventh Circuit held that an
advertisement by Jewel-Osco that did not contain a single word about a
specific product was nonetheless properly characterized as commercial
speech because the dominant, implicit commercial function of the
message was to promote the Jewel-Osco brand in the mind of
consumers.
141
Similarly, fake news will likely not contain any specific
reference to a particular product or service. However, as in Jewel Food
Stores, the implicit commercial purpose of the expression of fake news is
to serve the overall economic purpose of the author. Just because the
expression within fake news publications fails to include a specific
reference to a particular good or service does not necessarily mean that it
is properly characterized as non-commercial speech.
iii. Economic Motivation
“Economic motivation” implies that a given expression is intended to
lead to commercial transactions and that the target audience is composed
139
. Matthew LoBello, The Journalism Licensing Program: A Solution to Combat the
Selective Exposure Theory in Our Contemporary Media Landscape, 36 CARDOZO ARTS & ENT.
L.J. 509, 535 (2018).
140
. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 519 (7th Cir. 2014).
141
. Id. at 518 (In this case, a former basketball player brought suit against Jewel Food Stores
when the defendant ran an advertisement congratulating the plaintiff on his induction into the
basketball hall of fame.).
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 121
of individuals who will engage in such transactions.
142
Not all types of
economic motivation will support a finding of commercial speech. For
example, a mere incidental economic benefit, without more, will not
support a finding of commercial speech.
143
The focus of the inquiry is
instead on whether the speaker had an adequate economic motivation,
such that an economic benefit was their primary purpose for speaking.
144
The main incentive for fake news is economic profit for the author; if the
fabricated fake news story spreads farther and faster than the truth, more
advertising revenue will be generated for the producer.
145
The false
statements of fact within fake news only serve the speaker’s economic
interest, providing no benefit to the public. This primary economic
motivation for the publication of fake news favors a finding that fake
news is commercial speech.
Considering the foregoing factors, fake news, which ultimately
amounts to false statements of fact imitating real news stories with the
purpose of deceptively disseminating the fake news to as many
consumers as possible for the sole purpose of maximizing the speaker’s
economic gain, should unquestionably be found to constitute commercial
speech. “Such speech becomes more like ‘the offspring of economic self-
interest’ and ‘is a hardy breed of expression that is not particularly
susceptible to being crushed by overbroad regulation.’”
146
In Ariix, LLC
v. NutriSearch Corp., the Ninth Circuit found that when a speaker
profited from actively misleading the public about their purported
objectivity, they “drowned the public trust for economic gain” and,
therefore, their speech was commercial in nature.
147
Similarly, fake news
actively misleads the public in order to promote the economic interest of
the speaker and is the type of speech that “society has little interest in
protecting . . . under the mantle of the First Amendment.”
148
Hence, after
making the determination that the type of fake news at issue does
constitute commercial speech, the inquiry then moves on to the
aforementioned second determination: whether such commercial speech
is false or misleading.
142
. Kasky, 27 Cal. 4th at 961.
143
. Ariix, 985 F.3d at 1117.
144
. Id.
145
. Wood, supra note 12.
146
. Ariix, 985 F.3d at 1119 (quoting Cent. Hudson Gas, 447 U.S. at 564 n.6).
147
. Id.
148
. Id.
122 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
b. Is the Speech False or Misleading?
False and misleading commercial speech is not entitled to any First
Amendment protection.
149
Fake news publications are intentionally false
and misleading, often imitating reputable news organizations to make the
fake news story look credible to the consumer, driving up Internet
distribution and revenue for the author.
150
This clearly fits into the
Central Hudson definition of expression which is based solely upon
misleading, false, deceptive commercial speech, which is within the reach
of State regulation.
151
The fact that fake news is often linked to important
issues of public debate
152
does not rescue the expression from a
determination that it constitutes commercial speech within the reach of
State regulation.
153
Because fake news is intentionally false and
misleading commercial speech, any effort by the government to regulate
and prevent its dissemination would be permissible.
154
In addition, the regulation of fake news would also comport with the
policy considerations that have shaped the doctrine of commercial
speech. In Virginia State Board of Pharmacy v. Virginia Citizens, the
Supreme Court stated that when an expression is made, freedom of
speech protects both the speaker and the right of the recipient to receive
the expression.
155
The Court elaborated that in the context of commercial
speech, both individual consumers and society as a whole have a keen
interest in the free and clean flow of commercial information so
consumers may make intelligent and well-informed decisions.
156
The
Court, in Zauderer v. Office of Disciplinary Counsel of Supreme Court of
Ohio, reflected on the Virginia decision and opined that the extension of
First Amendment protection to commercial speech is justified principally
by the “value to consumers of the information such speech provides.”
157
149
. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 518 (7th Cir. 2014). Commercial
speech that is not misleading or does not concern unlawful activity may be regulated if the
government can satisfy the three prongs of “intermediate” scrutiny review: (1) the government
must assert a substantial interest in support of its regulation, (2) the government must demonstrate
that the restriction on commercial speech directly and materially advances that interest, and (3)
the regulation must be “narrowly drawn.” Accord Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624
(1995).
150
. LoBello, supra note 139, at 534.
151
. Friedman v. Rogers, 440 U.S. 1, 9 (1979).
152
. Bolger, 463 U.S. at 68.
153
. Id. (holding that the informational pamphlets at issue describing family planning and
venereal disease can, and in this case do, constitute commercial speech despite expression
concerning current public debate).
154
. Zauderer, 471 U.S. at 638 (“States and the Federal Government are free to prevent the
dissemination of commercial speech that is false, deceptive, or misleading . . . .”).
155
. Id. at 756.
156
. Va. State Bd. Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763–65
(1976).
157
. Zauderer, 471 U.S. at 651.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 123
The position taken by the Supreme Court in Virginia State Board of
Pharmacy v. Virginia Citizens, is supported by Alexander Meiklejohn’s
theory of democratic self-governance. Meiklejohnian theory holds that
speech should be protected to facilitate the “voting of wise decisions.”
158
More particularly, Meiklejohn argued that the “minds of the hearers” take
precedent over the speaker’s rights and that speech which mutilates the
thinking process of the hearers is rightfully suppressed—it is not essential
that everyone shall speak.
159
Fake news, as defined in this Note, does not facilitate the voting of
wise decisions and mars the thinking process of the recipients of the
speech in the community. By writing verifiably false stories and imitating
genuine news publishers, fake news authors target communities or
demographics with the intent to distribute falsehoods in order to reap
significant monetary returns on the back of misinformation and confused
minds of the victims. This is the type of expression which the theory of
democratic self-governance posits would rightfully be suppressed.
According to Meiklejohn, there should be no obstacle to suppressing the
unfair and irresponsible transmission of information that mutilates the
thinking process of the community and leads to the voting of unwise
decisions.
In conclusion, under Central Hudson a court should find that for-
profit fake news falls outside of the scope of protection which the First
Amendment affords to commercial speech. Fake news should be
considered commercial in nature because it is expression which does no
more than propose the commercial transaction of clickbait advertising,
160
motivated solely by the economic benefit of the speaker. After defining
the expression as commercial, a court would consider whether the speech
is afforded any protection by the First Amendment.
161
For commercial
speech to receive such protection, it must be neither false nor misleading
and it must pertain to a lawful good or service.
162
Thus, there is no
constitutional objection to the suppression of commercial speech that
does not accurately inform the public, because the government “may ban
forms of communication more likely to deceive the public than inform
it.”
163
Fake news clearly falls into the category of deceptive and false
commercial speech because fake news stories and articles are composed
of intentionally false statements that generate economic benefit to the
158
. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 25
(1948).
159
. Id. at 25–26.
160
. Perlman, supra note 26 (Aptly described by Ben Edelman, associate professor at
Harvard Business School, “You want to read it. It sounds so good you can’t help but click on it,
hence the term clickbait.”).
161
. Bolger, 463 U.S. at 69.
162
. Id. at 68–69.
163
. Cent. Hudson Gas, 447 U.S. at 563 (1980).
124 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
speaker by deceiving the public. In addition, fake news contravenes the
policy notion underlying the commercial speech doctrine—the
audience’s right to receive truthful information in order to make better
consumer-based, economic choices.
164
Fake news consists of no-value,
false statements that do nothing to inform the public or promote the
facilitation of information. Therefore, fake news is properly categorized
and regulated under the commercial speech doctrine.
It is important to remember that the definition and scope of fake news
in this Note narrowly focuses on fake news that is created and
disseminated to generate significant commercial activity through
clickbait advertising. The argument made here does not infringe upon the
notions of a marketplace of ideas
165
and counterspeech
166
that the First
Amendment is built upon. Individuals are free to express their views on
matters of public concern on the vast public forum of the Internet without
inhibition, but when their expression constitutes no more than
commercial activity that is deceptive and misleading and serves no other
purpose than to serve the economic interests of the speaker, then the
commercial speech doctrine rightfully intervenes and allows such speech
to be suppressed due to its harmful impact.
C. Modeling an FTC Rule on a Theory of Intent to Distribute
Modeling a rule on a theory of intent to distribute will: (1) focus the
regulation on fake news that is properly under the purview of FTC
authority; (2) create a bright-line rule disincentivizing a prevalent
practice; and (3) inform the Commission of specific theories of proof that
have already been developed in an analogous body of law. An analogy
164
. Zauderer, 471 U.S. at 651 (1985) (“Because the extension of First Amendment
protection to commercial speech is justified principally by the value to consumers of the
information such speech provides . . . .”).
165
. Calvert et al., supra note 61, at 131 (John Stuart Mill’s marketplace of ideas is arguably
the most prominent theory to shape the United States’ tradition of free speech. The theory
promotes an uninhibited, open free exchange of ideas. Mill’s opposed the suppression of opinion.
Such a process of uninhibited debate will ultimately promote the discovery of truth). Here, the
marketplace of ideas theory would protect non-commercial expression of opinion, any
suppressive measures taken in response to the fake news as defined by this Note would not
infringe upon such non-commercial opinion expression.
166
. In Whitney v. California, Justice Brandeis articulated the premise of counterspeech: “If
there be time to expose through discussion the falsehood and fallacies, to avert the evil by process
of education, the remedy to be applied is more speech, not enforced silence.” Lynne Tirrell, Toxic
Misogyny and the Limits of Counterspeech, 87 FORDHAM L. REV. 2433, 2445 (2019). The doctrine
of counterspeech is an outgrowth of the marketplace of ideas theory. Philip M. Napoli, What If
More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the
Filter Bubble, 70 FED. COMM. L.J. 55, 61 (2018). The doctrine of counterspeech implores the
preferred remedy to a feared injury is to add more speech, rather than censor speech, to the
metaphorical marketplace of ideas. Robert D. Richards & Clay Calvert, Counterspeech 2000: A
New Look at the Old Remedy for “Bad” Speech, 2000 B.Y.U. L. REV. 553, 553–54 (2000).
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 125
will be drawn to the federal drug enforcement statute, 21 U.S.C.
§ 841(a)(1), which states:
“Except as authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally-- (1) to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance . . . .”
167
Under existing legal doctrine, to establish a defendant’s possession
with an intent to distribute the government must prove the defendant (1)
knowingly (2) possessed the drug in question, and (3) intended to
distribute.
168
Knowingly possessing a controlled substance can be
established by actual possession or constructive possession.
169
A person
who, although not in actual possession of a substance, has both
knowledge of its presence and control over it either directly or through
another person, is in constructive possession of it.
170
1. Knowledge of Falsified Story
It is important that the suggested regulation over fake news governs
only intentionally written falsehoods, thereby distinguishing fake news
made with the intent to distribute from sloppy journalism and
misinformed opinions.
171
Similarly, to sustain a conviction for possession
with intent to distribute, the government must, as the first required
element of their claim, demonstrate that the defendant had knowledge of
the existence of the contraband at issue.
172
However, suspicious behavior
by itself, without proof of the defendant’s knowledge of the contraband
at issue, is not enough to support a conviction of possession with intent
to distribute.
173
Similarly, the FTC should be required to show that a distributor of
fake news knew that the story at issue was false. This requirement should
be easy to meet when considering fake news as a type of “controlled
substance” in question. Authors of fake news knowingly write falsehoods
to target specific audiences to generate an emotional response and thus
increase the likelihood the reader will share the story, generating more
website traffic and revenue for the author. One can imagine, however,
167
. U.S.C.A. § 841(a)(1).
168. U.S. v. Ramirez-Maldonaldo, 928 F.3d 702, 707 (8th Cir. 2019).
169
. U.S. v. Mangual-Garcia, 505 F.3d 1, 11 (1st Cir. 2007).
170
. U.S. v. Peebles, 883 F.3d 1062, 1068 (8th Cir. 2018).
171
. Riggins, supra note 16, at 1316.
172
. U.S. v. Gasper, 524 F. App’x 514, 516 (11th Cir. 2013) (the government must prove:
(1) knowledge; (2) possession; and (3) intent to distribute).
173
. U.S. v. Torres, 604 F.3d 58, 66 (2d Cir. 2010) (holding defendant did not have
knowledge of narcotics where defendant had been paid to pick-up packages, which contained
narcotics hidden inside cabinets within the packages, and government proffered no evidence
showing that the defendant took part in any conversation informing him of the presence of
narcotics).
126 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
that purveyors of fake news would claim that they were unaware that a
story was false and that they did not intentionally write a false story.
However, this is an issue that the courts are equipped to address. Such
a state-of-mind requirement already exists in the context of defamation
law, where a fact finder must determine whether a message was published
with actual malice. Here, the FTC should be required to show that such
fake news was made with “knowledge that it was false or with reckless
disregard of whether it was false or not.”
174
Knowledge can be proven by
circumstantial evidence, records, or a cooperating witness.
175
In its
enforcement action of the rule, the court can make a determination of
whether the FTC met the standard, similar to a finding under an actual
malice standard.
2. Knowingly “Authored”
The second element in proving possession with intent to distribute is
possession itself. In the context of fake news, possession is analogous to
authorship of the fake news story. Just like possession, authorship could
be proven through “actual authorship” or “constructive authorship.”
176
A
showing of actual authorship would require proof that the fake news story
was written by the author against whom the claim was brought. This
could be proven by records, such as emails, showing that the defendant
was the one who wrote a story, or by a witness who has first-hand
knowledge the defendant actually wrote the story. Alternatively, the FTC
could show constructive authorship by demonstrating that the person
against whom the claim is brought had (1) knowledge that the fake news
story was being written and (2) control over the story, either directly or
through another person.
177
Constructive authorship is an important theory
of possession, especially considering the business-like structure of for-
profit fake news and the difficulty technology poses to proving a direct
link between the author and an article.
178
Consider, once again, Jestin Coler. As the owner of Disinfomedia,
Coler managed “employees” who wrote fake news stories for the
company. Coler may not have written any fake news stories himself and
thus would not have been found to have the “immediate, hands-on
174
. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
175
. Torres, 604 F.3d at 66, 70 (holding that without records, a cooperating witness, or other
evidence, the government could not prove he had the knowledge necessary to sustain a conviction
of intent to distribute).
176
. Mangual-Garcia, 505 F.3d at 11.
177
. Peebles, 883 F.3d at 1068.
178
. Modern trends in remote work technology would allow authors to work independently,
removing the possibility of an eyewitness to corroborate. Additionally, the FTC would have to
prove an article was associated with an IP address that the person against whom the claim was
brought owned.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 127
physical possession”
179
of the fake news story required to prove actual
authorship. However, under a theory of constructive authorship, Coler
would be shown to have both (1) knowledge and (2) control over the fake
news stories. Coler could be shown to exercise control over the fake news
stories by evidence (emails, texts, recordings) showing that Coler made
decisions regarding the content or publications of certain stories, or that
Coler paid a person to write fake stories for Disinfomedia.
180
3. Intent to Distribute
The third element necessary to prove possession with intent to
distribute is a finding that the defendant acted with the specific intent to
distribute the controlled substance at issue.
181
Because of the subjective
nature of a person’s intent to distribute, “circumstantial evidence
182
alone
can establish the possession with the intent to distribute offense.”
183
Specific intent may be proven by circumstances surrounding the
defendant’s possession that give rise to a reasonable inference of their
intent to distribute or at least increase the probability that intent was
present. This theory of intent to distribute controlled substances is
analogous to a fake news author’s intent to distribute a story to as many
readers as possible to increase traffic and advertising clicks on their
websites. The following sections will explore in more detail how
circumstantial evidence and reasonable inferences can establish a fake
news author’s intent to distribute.
i. Quantity
Courts have held that “the intent to distribute can be solely established
by the quantity of drugs.”
184
“Intent to distribute may be inferred from
possession of . . . a quantity of drugs larger then needed for personal
use.”
185
Similarly, it may be possible to infer that an author possessed the
intent to distribute fake news if the author published a certain quantity of
fake stories within a given time frame.
179
. U.S. v. Padilla-Galarza, 886 F.3d 1, 5 (1st Cir. 2018) (quoting U.S. v. Guzman-
Montanez, 756 F.3d 1, 8 (1st Cir. 2014) (defining “actual possession”)).
180
. Id. (holding that the defendant exercised constructive possession “over an area” by
making mortgage payments on the house where a controlled substance was found).
181
. U.S. v. Heras, 609 F.3d 101, 106 (2d Cir. 2010).
182
. U.S. v. Patel, 370 F.3d 108, 113 (1st Cir. 2004) (“Circumstantial evidence asserts
something else from which the trier of fact may either (i) reasonably infer the truth of the
proposition or (ii) at least reasonably infer an increase in the probability that the proposition is in
fact true.”).
183
. U.S. v. Clark, 331 Fed. Appx. 670, 671 (11th Cir. 2009); U.S. v. Rodriguez, 993 F.2d
1170, 1175 (5th Cir. 1993).
184
. Peebles, 883 F.3d at 1068 (8th Cir. 2018); U.S. v. Savinovich, 845 F.2d 834, 838 (9th
Cir. 1988).
185
. U.S. v. Yancey, 228 F. Appx. 267, 269 (4th Cir. 2007).
128 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
Conversely, under current caselaw, a lesser quantity of controlled
substances, consistent with personal use, does not raise an inference of
intent to distribute, at least in the absence of additional evidence showing
intent.
186
The Fifth Circuit held that a man possessing 2.89 grams of
cocaine could not be found to possess with an intent to distribute as a
matter of law.
187
Similarly, a person who rarely distributed any fake
stories could not be found to have intended to distribute fake news. This
theory of proof would protect individuals who do not cause the sort of
widespread public harm that the FTC should prosecute.
ii. Cash or Value
Further, an “[i]ntent to distribute may be inferred from
the . . . price . . . of the drug possessed.”
188
In U.S. v. Peebles, the Eighth
Circuit affirmed the jury’s finding of possession with the intent to
distribute when police discovered one-quarter of a kilogram of a
controlled substance, worth $15,000 to $18,000.
189
Additionally, courts
have considered cash discovered with a controlled substance to be
sufficient circumstantial evidence to support a finding of intent to
distribute.
190
Courts often examine the value of the substance at issue or the
presence, or exchanging, of money to support a finding of intent to
distribute. After all, the impetus behind distributing controlled substances
is to make money—and the same is true of for-profit fake news. The FTC
can prove intent to distribute fake news for profit with evidence of the
amount of money that is being generated from advertising or the presence
of “cash” associated with those businesses. For example, consider the
revenue stream of Disinfomedia. Coler admitted that he received between
$10,000 and $30,000 per month by circulating knowingly fake stories
which he exerted actual or constructive possession over through his
ownership and managing of Disinfomedia and through his making of
186
. U.S. v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
187
. Id.
188
. Savinovich, 845 F.2d at 838 (holding that evidence of the resale value is probative of
intent to distribute).
189
. Peebles, 883 F.3d at 1068.
190
. Yancey, 228 F. Appx. at 269 (quoting U.S. v. Collins, 412 F.3d 515, 519 (4th Cir. 2005)
(“Intent to distribute can be inferred from, inter alia, the ‘amount of cash seized with the drugs.’”);
U.S. v. Stephens, 23 F.3d 553, 556 (D.C. Cir. 1994) (recognizing that possession of relatively
large amounts of cash may support a finding of intent to distribute); U.S. v. Maldonado, 108 F.3d
331 (5th Cir. 1997) (“Possession of drugs coupled with additional evidence such as large
quantities of cash may support an inference of intent to distribute.”); Skipper, 74 F.3d at 611
(stating a quantity of drugs consistent with personal use does not support a finding of intent to
distribute but can if augmented with additional evidence such as large quantities of cash); U.S. v.
Khondaker, 263 Fed. Appx. 693, 701 (10th Cir. 2008) (holding $2,300 in cash found near the
seized drugs gives rise to an inference of intent to distribute).
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 129
editorial decisions, effectively exercising control over the stories.
Disinfomedia’s monthly income is incredibly similar to the value of the
substance possessed in Peebles, which the court held was sufficient to
support a finding of intent to distribute. This level of income should thus
serve as sufficient evidence for the FTC to establish that Coler intended
to distribute fake news for profit.
As an alternative to showing the monthly “value” of fake news, the
FTC could use evidence of cash associated with either Jestin Coler or
Disinfomedia to prove intent to distribute. Courts often have held that the
presence of cash has been sufficient to show intent to distribute.
191
In
United States v. Stephens,
192
the court found that additional evidence of
$15,000 in cash seized along with a quantity of marijuana exceeding a
quantity for personal use was ample evidence to support a finding of
intent to distribute.
193
For-profit fake news generates a significant amount
of money for the disseminators; the presence and exchange of cash
sufficient to prove intent to distribute under 21 U.S.C. § 841 (a)(1) should
similarly be sufficient to prove intent to distribute in the context of fake
news. For example, the FTC could show evidence in the form of bank
accounts held in the name of Disinfomedia, financial statements showing
the origin of deposits from AdSense, or payments made directly to Coler
or his writers from accounts associated with Disinfomedia.
iii. Behavior
Intent to distribute can also be proven by the defendant’s behavior.
194
In United States v. Foster,
195
an expert testified that traveling by train (in
an effort to keep luggage close by), purchasing a one-way ticket with cash
shortly before departure, carrying a beeper, using hard suitcases and
masking agents such as talcum powder (to contain drug odor), and
avoiding using their real name are all behaviors typical of drug
couriers.
196
The court held that expert testimony regarding the
defendant’s behavior was admissible as relevant circumstantial evidence
to prove the defendant knew and intended to carry under 21 U.S.C. § 841
(a)(1) because these behaviors made it more probable that the fact of
consequence was true.
197
191
. Id.
192
. Stephens, 749 Fed. Appx. at 179.
193
. “The intent to distribute can be inferred from a number of factors, including but not
limited to . . . the amount of cash seized with the drugs.” Id. (quoting Collins, 412 F.3d at 519).
194
. U.S. v. Foster, 939 F.2d 445, 451 (7th Cir. 1991); U.S. v. Lopez, 403 Fed. Appx. 362,
374 (11th Cir. 2010); U.S. v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008) (holding that
behavior, such as evidence of flight, is admissible to demonstrate consciousness of guilt and
thereby guilt itself).
195
. Foster, 939 F.2d at 451.
196
. Id.
197
. Id.
130 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
Under a similar theory, the FTC can support a finding of intent to
distribute through evidence that a fake news author: wrote fake news
stories under a pseudonym or published anonymously, established a
social media presence specifically targeting certain groups of people who
are likely to disseminate fake news, or took certain cyber security
measures to ensure anonymity in the conduct of their publication. Such
factors, even potentially developed through adjudication of many cases,
would establish the common behaviors and practices of individuals who
operate for-profit fake news publications. The FTC could use these
behaviors as circumstantial evidence to counter an argument by a
defendant who claims that they were unaware or lacked the intent to
disseminate fake news—just as the defendant in Foster attempted to
argue.
198
iv. Network Engagement
Participation in, and involvement with, distribution activity is not
alone sufficient to convict under current legal frameworks, but such
evidence is permissible in evaluating the totality of circumstances of the
charged offense.
199
In U.S. v. Lopez, the court ruled that evidence
showing the defendant arranged the sale of 211 kilograms of cocaine to
distributors was sufficient to demonstrate knowledge of the general scope
and nature of the conspiracy.
200
Next, the court in Lopez determined that
attending meetings and traveling frequently with coconspirators on
flights along with the evidence of arranging deals, was sufficient to
satisfy the totality of the circumstances test. Lopez shows that serving as
the entity that delivered the drugs into the network of distribution could
be used as circumstantial evidence to show the defendant was guilty of
intent to distribute. Similarly, a regulation could assign a heightened
degree of culpability, under a similar theory of intent to distribute, by a
showing that an author engaged with distribution networks to spread their
fake news story for financial gain.
Fake news authors are able to widely distribute their stories by
engaging with social media—the modern news distribution network—
and by targeting users through harvested data that reveals individuals who
are more likely to believe and share fake news stories.
201
A fake news
author who targets their audience—through data harvesting, political
ideology, or other means—and engages the specific distribution network
by placing their fake news story into those channels, should be said to
have intended to distribute. Additionally, the volume of activity of a fake
news author could be a factor supporting a finding of intent to distribute.
198
. Stevens, 749 Fed. Appx. at 179.
199
. Lopez, 403 Fed. Appx. at 374.
200
. Id. at 374–75.
201
. Clemons, supra note 45.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 131
If the author posts infrequently, then it is unlikely that they would have
acted with the requisite intent to widely distribute their falsehoods.
However, an author who posts with frequency would demonstrate their
intent to distribute by regularly attempting to attract the attention of
vulnerable consumers and make money from their promotion of the post.
v. “Tools of the Trade”
Equipment or materials that are “tools of the trade” are admissible as
evidence to allow for a reasonable inference that the defendant intended
to distribute.
202
Tools of the trade, items which are commonly used in
drug transactions, may be used to support an inference that a defendant
in possession of drugs intended to engage in such a drug transaction,
rather than to simply engage in personal use.
203
In U.S. v. Winder,
204
the
defendant did not dispute that he possessed and had knowledge of the
drugs found in the car he was driving at the time of his arrest, but he
nonetheless challenged the sufficiency of the evidence to prove intent to
distribute. The Tenth Circuit turned to the circumstantial evidence of
other key items located in the car: two firearms, ammunition, baggies,
and a digital scale. The Court held that the caselaw recognized these items
as “tools of the trade” and that they suggested the defendant was engaged
in distributing illegal drugs. Thus, the court ultimately affirmed the
conviction.
Similarly, the circumstances surrounding the operation of a purveyor
of fake news could be used to prove an intent to distribute. In furtherance
of the public policy concerns addressed by the proposed FTC
regulation,
205
the FTC can use, as evidence of intent to distribute, the
“tools of the fake news trade”—namely, Google AdSense accounts or
agreements, payments received from advertising networks, or websites
used to publish fake new stories and drive Internet traffic—to show
circumstances and “equipment” which demonstrates the defendant had
202
. Savinovich, 845 F.2d at 837 (holding that because scales are tools of the drug trade, they
are probative of intent to distribute); U.S. v. Billingsley, 160 F.3d 502, 506 (8th Cir. 1988)
(holding that cutting agent, scales, and wrapping supplies found in defendant’s apartment are
“tools of the drug trade” and are inconsistent with a finding of personal use, but rather are
indicative of intent to distribute); U.S. v. Brown, 7 F.3d 648, 656 (7th Cir. 1993) (holding weapons
found in conjunction with narcotics may be considered “tools of the trade” and support a finding
of intent to distribute); U.S. v. Espinoza, 684 F.3d 766, 779 (8th Cir. 2012) (holding evidence of
multiple guns and ammunition admissible as “tools of the trade” to prove intent to distribute even
when no drugs were found in the home).
203
. Savinovich, 845 F.2d at 837 (holding that because guns are used in many drug
transactions, it may reasonably be inferred that an armed possessor of drugs has more in mind
than personal use . . . Thus, guns seized from a defendant’s residence are admissible in trial for
intent to distribute).
204
. U.S. v. Winder, 557 F.3d 1129, 1138 (10th Cir. 2009).
205
. Ind. Fed’n of Dentists, 476 U.S. at 454.
132 JOURNAL OF TECHNOLOGY LAW & POLICY [Vol. 27
more in mind than personal use and intended to distribute fake news to
profit from a deceptive, unfair practice.
vi. Multiple Types of Evidence
Combinations of two, three, or more of the aforementioned types of
evidence have been held sufficient to establish intent to distribute in cases
where one of these types of evidence may not have been sufficient
alone.
206
The court may, for example, consider a certain quantity as
sufficient to prove intent to distribute when augmented by evidence of
distribution paraphernalia or “tools of the trade,” large quantities of cash,
or the value and quality of the substance.
207
In United States v. Shaw, the court found that possessing 0.89 grams
of cocaine, or approximately nine doses according to expert testimony,
was insufficient alone to establish intent to distribute.
208
However, the
defendant also possessed $1,776 in cash and a loaded pistol when the
cocaine was discovered.
209
The court ultimately held that the additional
evidence of a significant amount of cash and a loaded weapon—a “tool
of the trade”—was sufficient to infer an intent to distribute despite the
quantity of cocaine in possession being small.
210
In Shaw, the court thus
considered a combination of the types of evidence to make a finding of
intent to distribute.
Similarly, a court can examine a combination of the aforementioned
types of evidence (i.e., quantity, cash or value, behavior, and network
engagement) when making a determination as to whether a fake news
author intended to distribute knowingly false news stories in order to
profit from their targeted dissemination. Each inquiry should be fact-
specific, with the FTC bearing the burden of proof, just as the burden is
on the government under 21 U.S.C. § 841 (a)(1) to make a showing of
intent to distribute.
CONCLUSION
Gone are the days of reliance upon printing presses, distribution
centers, and delivery channels to place the news at your front door. There
now is greater freedom to distribute information because the Internet and
social media have empowered individual actors to inexpensively publish
statements within seconds.
211
Unlike traditional press distribution and
206
. Martin J. McMahon, Annotation, Sufficiency of Evidence that Possessor of Cocaine
Had Intent to Distribute It, so as to Violate 21 U.S. C.A. § 841(A)(1), 80 A.L.R. FED. 397 § II.3
(2004).
207
. Id.
208
. U.S. v. Shaw, 751 F.3d 918, 922 (8th Cir. 2014).
209
. Id.
210
. Id.
211
. Benedict, supra note 76, at 484.
2022] FAKE NEWS AND INTENT TO DISTRIBUTE 133
television broadcasting, the barriers to distribution on the Internet are
low—there is no publisher, editor, broadcaster, or cable operator to act as
a gatekeeper to the dissemination of information.
212
Anyone can establish
a legitimate-looking website, create a Google AdSense account, write
share-worthy falsehoods, and make money from the distribution of fake
news. Now that most people obtain their news online, social media has
become the main source of news for many.
213
Through these modern
channels of media consumption, the harms of fake news can be spread
instantaneously around the globe.
214
This recent, rapidly developing
phenomenon poses serious public policy concerns for a democratic
society.
The rulemaking authority of the FTC, this Note argued, provides the
best option for stopping the spread of for-profit fake news. By focusing
on for-profit fake news, action taken by the FTC is likely to survive a
Constitutional challenge because commercial speech receives no First
Amendment protection when it is inherently false or misleading. An
industry-wide rule promulgated by the FTC should clearly define what
constitutes improper conduct, so as to precisely and effectively
disincentivize the actions and consequences associated with
disseminating fake news.
The FTC should model its rule on a theory of criminal possession with
intent to distribute, while penalizing offenders with civil fines instead of
criminal prosecution. Possession with intent to distribute provides a
useful analogy to the for-profit fake news industry. By focusing on an
author’s knowledge of the falsity of the story, actual or constructive
authorship, and intent to distribute the falsehoods to as many people as
possible to maximize profit, the FTC’s focus will fall solely upon those
individuals who pose serious public policy concerns while also not
exceeding the scope of the FTC’s authority under the FTC Act.
Additionally, criminal possession with intent to distribute jurisprudence
is built upon decades of varying theories for proving the elements of
intent to distribute, many of which can be analogized to the issue of fake
news. Such possession with intent to distribute frameworks thus serves
as a strong foundation for the development of an FTC rule addressing the
fake news epidemic.
212
. Ed Cook, Everyone Now is a Publisher, MEDIUM (May 10, 2019), https://medium.com/
@edcook_1690/everyone-is-now-a-publisher-c7b4b1b0c1b7 [https://perma.cc/J9TV-C4LK].
213
. Nicole Martin, How Social Media Has Changed How We Consume News, FORBES
(Nov. 30, 2018, 4:26 PM), https://www.forbes.com/sites/nicolemartin1/2018/11/30/how-social-
media-has-changed-how-we-consume-news/?sh=22a1d68c3c3c [https://perma.cc/2BK8-YVAN].
214
. Chen, supra note 8, at 376.
