Fake is not covered by the Constitutional Freedom of Speech and Expression

Basis of Freedom of Expression

The philosophical basis of freedom of expression was eloquently stated by Justice

Holmes in Abrams v. U.S.1 thus:

When men have realized that time has upset many fighting faiths, they may come to
believe, more than they believe that the very foundations of their own conduct, that the
ultimate good desired is better reached by a free trade in ideas- that the best of truth is the
power of the thought to get itself accepted in the competition of the market; and truth is the
only ground upon which their wishes safely can be carried out. That, at any rate, is the theory
of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day
we have to wager our salvation upon some prophecy based upon imperfect knowledge. While
that experiment is part of our system I think we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught with death, unless
they so imminently threaten immediate interference, with the lawful and pressing purposes of
the law that an immediate check is required to save the country.

In the case of Terminiello v. City of Chicago, the US Supreme Court through Justice
Douglas, declared:

The vitality of civil and political institutions in our society depends on free
discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon2, it is only through
free debate and free exchange of ideas that the government remains responsible to the
will of the people and peaceful change is effected. The right to speak freely and to
promote diversity of ideas and programs is therefore one of the chief distinctions that
set us apart from totalitarian regimes.

Accordingly, a function of free speech under our system of government is to invite

dispute. It may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger.

According to the Supreme Court in Diocese of Bacolod v. COMELEC3 there are

several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression. The first pertains to what is referred to as “deliberative
democracy” which would include the right of the people to participate in public affairs,
including the right to criticize government actions. The second considers free speech as
1
250 US 610, Justice Holmes dissenting opinion p. 250 U.S. 631.
2
299 U.S. 353, 365, 81 L.ed 278, 284, 57, S. Ct. 255
3
G.R. No. 205728
being “under the concept of a market place of ideas”, and should therefore, be
“encouraged”. A third theory provides that free speech likewise “involves self-expression
that enhances human dignity. This right is “a means of assuring individual
self-fulfillment,’ among others.” A fourth theory considers free expression as “a marker
for group identity.” Fifth, the Bill of Rights, free speech is included, supposed to ‘protect
individuals and minorities against majoritarian abuses perpetrated through the framework
of democratic governance.’ Lastly, free speech must be protected under the safety valve
theory. This provides that nonviolent manifestations of dissent reduce the likelihood of
violence.” In this regard, the Court explained that a “dam about to burst…resulting in the
‘banking up of a menacing flood of sullen anger behind the walls of restriction’ has been
used to describe the effect of repressing nonviolent outlets. In order to avoid this situation
and and prevent people from resorting to violence, there is a need for peaceful methods in
making passionate dissent. This includes ‘free expression and political participation’ in
that they can ‘vote for candidates who share their views, petition their legislatures to
[make or] change laws … distribute literature alerting other citizens of their concerns and

In Schenck v. United States, 249 U.S. 47 (1919), it was held that if speech was
intended to result in a crime, and there is clear and present danger that it actually will
result in a crime, the First Amendment does not protect the speaker from government
action.
 Fake news (also known as junk news, pseudo-news, or hoax news) is a form
of news consisting of deliberate disinformation or hoaxes spread via
traditional news media (print and broadcast) or online social media.

Fake news is news, stories or hoaxes created to deliberately misinform or deceive

readers. Usually, these stories are created to either influence people’s views, push a
political agenda or cause confusion and can often be a profitable business for online
publishers. Fake news stories can deceive people by looking like trusted websites or
using similar names and web addresses to reputable news organisations.

Types of Fake News4

There are differing opinions when it comes to identifying types of fake news.
However, when it comes to evaluating content online there are various types of fake
or misleading news we need to be aware of. These include:

1. Clickbait
These are stories that are deliberately fabricated to gain more website visitors and
increase advertising revenue for websites. Clickbait stories use sensationalist
headlines to grab attention and drive click-throughs to the publisher website,
normally at the expense of truth or accuracy.

2. Propaganda
Stories that are created to deliberately mislead audiences, promote a biased point of
view or particular political cause or agenda.

3. Satire/Parody
Lots of websites and social media accounts publish fake news stories for
entertainment and parody. For example; The Onion, Waterford Whispers, The Daily
Mash, etc.

4. Sloppy Journalism
Sometimes reporters or journalists may publish a story with unreliable information or
without checking all of the facts which can mislead audiences. For example, during
the U.S. elections, fashion retailer Urban Outfitters published an Election Day Guide,
the guide contained incorrect information telling voters that they needed a ‘voter
registration card’. This is not required by any state in the U.S. for voting.

5. Misleading Headings

4
Explained: What is Fake News?, lifted from https://www.webwise.ie/teachers/what-is-fake-news/ last accessed
December 9, 2019
Stories that are not completely false can be distorted using misleading or
sensationalist headlines. These types of news can spread quickly on social media
sites where only headlines and small snippets of the full article are displayed on
audience newsfeeds.

6. Biased/Slanted News
Many people are drawn to news or stories that confirm their own beliefs or biases
and fake news can prey on these biases. Social media news feeds tend to display
news and articles that they think we will like based on our personalised searches.