Fake news and the first amendment: Reconciling a disconnect between theory and doctrine

Clay Calvert, Stephanie Mcneff, Austin Vining, Sebastian Zarate

Research output: Contribution to journalReview articlepeer-review

11 Scopus citations


This Article analyzes calls for regulating so-called "fake news" through the lens of both traditional theories of free expression - namely, the marketplace of ideas and democratic selfgovernance - and two well-established First Amendment doctrines, strict scrutiny and underinclusivity. The Article argues there is, at first glance, a seeming disconnect between theory and doctrine when it comes to either censoring or safeguarding fake news. The Article contends, however, that a structural rights interpretation of the First Amendment offers a viable means of reconciling theory and doctrine. A structural rights approach focuses on the dangers of collective power in defining the truth, rather than on the benefits that messages provide to society or individuals. Ultimately, a structural rights conception illustrates why, at the level of free speech theory, the government must not censor fake news.

Original languageEnglish
Pages (from-to)99-138
Number of pages40
JournalUniversity of Cincinnati Law Review
Issue number1
StatePublished - 2018
Externally publishedYes

Bibliographical note

Publisher Copyright:
© 2018 University of Cincinnati College of Law. All rights reserved.


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