It's a complicated contention.
“Absent the existence of libel, Supreme Court precedents suggest that the First Amendment protects a citizen expressing lies or their version of fake news,” conceded Melber, who has a law degree from Cornell. “Political operatives have strong case law to defend deceptive assertions as protected speech, especially if they show that the lies are part of some wider expression, be it political, satirical or artistic.”
However, Melber added, “the court has ruled that some commercial speech, like advertising or communication concerned solely with business, gets less First Amendment protection than political speech.”
If the FTC and the court system could agree that fake news isn't really a form of political discourse but is, instead, a kind of commercial offering in which “the political misinformation is the product,” then perhaps the nation's consumer-protection agency could stop some of it, he says.
In an interview, Melber zeroed in on fabricated articles concocted by foreign click-bait artists as one example of the kind of content he thinks could be regulated. For example: BuzzFeed reported in November on a bunch of teenagers in Macedonia who did not care about U.S. politics but discovered that making up stories about Donald Trump was a good way to draw traffic and, as a result, generate ad revenue.
“A simple way to put it would be: If a site has even 10 percent political expression by Americans, the Supreme Court suggests it's protected,” Melber said. “But if a site is 100 percent Macedonian commerce and is fraudulently counterfeiting a protected American product, it may not have the protection of the First Amendment.”
David C. Vladeck, former director of the FTC's Bureau of Consumer Protection, said he shares Melber's frustration with fake news but is skeptical that the agency could combat it in the way the MSNBC correspondent suggests. Vladeck noted that the FTC has shut down sites that masquerade as news while selling tangible products, such as those acai-berry supplements; he doubts that fake news itself could be considered a product, however — especially if people do not pay to read it.
“The FTC's jurisdiction extends only to cases where someone is trying to sell something,” said Vladeck, now a law professor at Georgetown. “Fake news stories that get circulated or planted or tweeted around are not trying to induce someone to purchase a product; they're trying to induce someone to believe an idea. There are all sorts of First Amendment problems, apart from, I think, the insuperable jurisdiction problems, that the FTC would have.”
Vladeck said he recognizes that some fake news sites are engaged in commerce, in the sense that they sell advertisements, but those ad sales are based on real web traffic.
“The deception doesn't take place in the selling,” he said. “It just takes place as a door opener to get people on the page.”
As Vladeck sees it, false information is not the product; the product purchased by advertisers on fake news sites is exposure to the sites' visitors. In that case, he said, “the deceptive claim doesn't really relate to the product.”
Melber, however, is optimistic that fake news websites' commercial purposes could be enough to make at least some of them subject to FTC oversight.
“I think it's a worthwhile challenge to explore, rather than preemptively surrendering and saying, 'Well, if we can't stop all of it or some of it's protected speech for good reason, then nobody should do anything about it,' " he said.