An MSNBC reporter suggested Monday that the federal government should help decide which news stories are real and which are "fake news," after both parties left the last election angry about the fake stories that hurt their respective candidates.
MSNBC's Chief Legal Correspondent Ari Melber said the Federal Trade Commission, which is charged with protecting consumers, could be used to help quash sham stories.
Melber said that to get the FTC involved, "fake news" should instead be viewed as "fraud news," which would make it not a question of free speech, which is heavily guarded by the First Amendment, but rather a question of commercial speech and protecting consumers.
Melber said the FTC has spent years shutting down operations that offer deceptive information about products, like weight-loss products. This framework could be applied to businesses that peddle fraudulent news, he said.
"The FTC's recent actions against fraud news proprietors typically targeted a two-step practice: They posted misinformation about a product, then sold the product," Melber wrote. "In fraud news, however, the political misinformation is the product. And, it's free" for readers with the support of paid ads or when people share their personal information.
"An FTC framework for fraud news would treat these readers as 'consumers,' and target the websites for deceptive acts against them," Melber added.
The proliferation of fake news is a growing issue. It spread like wildfire during the 2016 election, thanks in large part to sharing on social media. For example, one story from the "Denver Guardian," a fake news outlet, purported that an FBI agent suspected of being involved in the Hillary Clinton campaign email leak was found dead from an apparent murder-suicide.
Some social media outlets, like Facebook, have taken steps to stem the tide of fake stories.
The phenomenon has led to politicians on both sides of the aisle to complain that these misleading stories have been damaging. Both Clinton and former President Barack Obama blamed fake news, in part, for Clinton's loss in the presidential election.
President Trump has made it a habit to bash what he calls "fake news" outlets for critical reports about him, and has in some cases has been vindicated, like when a Time journalist misreported (then retracted and apologized) that the Martin Luther King bust had been removed from the Oval Office.
But the idea that the government agency should be the arbiter of news legitimacy is a sensitive topic that make some people nervous.
Howard Beales, former director of the FTC's Bureau of Consumer Protection, told the Washington Examiner that faux political news is likely fully protected under the First Amendment, and that "any FTC attempt to police 'fake news,' other than when used to sell products, would likely fail, and would embroil the Commission in endless political controversies."
"The Commission would be exceedingly unwise to take such a step," he added.
Another former FTC official told the Washington Examiner a more appropriate route would be to have private sector mediators that could review content and offer a seal of approval, similar to how the Parents Television Council awards TV programs its "PTC Seal of Approval" for offering family-friendly content. Melber's proposal for government oversight, the official said, would pose some tricky First Amendment issues.
Melber also proposed a way the FTC could tiptoe around the conundrum of protecting free speech.
"To follow First Amendment precedents, the framework could limit the FTC to only regulating posted articles — not seeking prior restraints against future articles — and to only regulate businesses devoted to fraud news," he said.
Having the FTC subdue fake news operations would not only keep its hands off legitimate journalists, Melber argued, but would still protect the right of citizens to "lie" when discussing politics.
"There is no 'ministry of information' in American government, and the Constitution forbids government efforts to stifle the free press," Melber wrote. "Fake news may remain a slur against legitimate news organizations, but an FTC framework patrolling businesses devoted to fraudulent and deceptive practices would not ensnare any real news organization."
"A focus on deceptive businesses would also keep the government away from meddling with actual journalists or citizens exercising their right to lie while engaged in politics," Melber said.