Misinformation: Does the First Amendment Need An Update?

By Tim Feran

The first amendment protects our freedom to say virtually anything with very few restrictions. But when that freedom is abused, do we need new rules?

When the nation's founders wrote the First Amendment to the Constitution in the late 1700s they could never have imagined the internet, the rise of social media and the misinformation that spreads on it.?

Does that mean the First Amendment needs a rewrite?

A panel of experts in history, law and journalism discussed that topic on Oct. 5, 2022, at the Columbus Metropolitan Club's forum, "Misinformation: Does the First Amendment Need An Update?" the fourth in the club's "Democracy in Crisis" series.

Panelists were Andrew Alexander, former Washington Post ombudsman and currently Scripps Howard Visiting Professional at Ohio University; David Stebenne, Professor of History and Law, Department of History, The Ohio State University; Eddith Dashiell, Professor and Director, E.W. Scripps School of Journalism, Ohio University; and moderator Mike Thompson, Chief Content Director, WOSU Public Media.

"Today we get to blame the media," Thompson said, as the audience chuckled.

His facetious comment drew a serious response from the panelists, who sought to draw a distinction between social media and traditional, professional reporters -- and how important the First Amendment has been and continues to be.

"The more I learn about it the more I'm in awe of the First Amendment and how visionary it was," Alexander said.

"Journalists don't deliberately share misinformation," Dashiell said. "There's a big difference between social media and traditional media."?But because misinformation on social media is posted side by side with stories by news organizations, that can create the impression that both are equivalent.

"One problem is the total volume of information is so overwhelming," Stebenne said.

"The problem is that, with the internet, the story goes around the world in seconds," Alexander said. "So there's no simple remedy to the problem of misinformation." Moreover,?"the core problem is that ideology has become a business model," as social media and news channels recognize that controversy engages and enlarges their audience.

A partial answer may be in the spread of news literacy, he said.

Every May, Reporters Without Borders releases a ranking of countries' press freedom records in the previous year. The rankings consistently place such countries as Norway, Finland, Denmark and Sweden at the top, while the United States ranked 32nd in the most recent report.

The reason why Nordic countries rank high? "Because news literacy is taught in schools," Alexander said.?

Dashiell cautioned that news literacy does not mean teaching "that X news station is wrong or right."

In fact, news literacy is described by the nonpartisan education nonprofit News Literacy Project as, "the?ability to determine the credibility of news and other information and to recognize the standards of fact-based journalism to know what to trust, share and act on."

"To what degree should government regulation be used to address the problem?" Stebenne said. "How do we create an environment that is child and family friendly?"?The Supreme Court will decide whether social media should be penalized for allowing falsehoods on their websites, he said.

On October 3, the court agreed to decide?whether social media platforms may be sued for what users post on their sites.?While a 1996 law said that online companies aren't liable for transmitting materials supplied by others, a new argument against the law says that the platforms forfeit such shielding when their algorithms recommend content, new connections or target ads to users.

So, while teaching news literacy may be part of the solution, "it's a very complicated problem to solve," Dashiell said. "I don't know the answer. But in today's?environment I would be very, very wary of revising the First Amendment. If we did, we might not end up with a First Amendment."