Catholic University Journal of Law and Technology

Catholic University Journal of Law and Technology


Although “fake news” is as old as mass media itself, concerns over disinformation have reached a fever pitch in our current media environment. Online media outlets’ heavy reliance on user-generated content has altered the traditional gatekeeping functions and professional standards associated with traditional news organizations. The idea of objectivity-focused informational content has primarily been substituted for a realist acceptance of the power and popularity of opinion-driven “news.” This shift is starkly visible now: mainstream news media outlets knowingly spread hoaxes, conspiracy theories, and the like.

This current state of affairs is not some freak accident. The Supreme Court’s First Amendment jurisprudence has led us here. For example, the Court’s decision in Reno v. ACLU subjects government regulation of online speech to strict scrutiny review, hamstringing nearly any attempt at regulation (much less censorship) of online speech by the government. Similarly, content regulation of televised media is covered by the First Amendment’s capacious protections. And while broadcast media was once heavily regulated for content, the FCC’s adoption of deregulation resulted in the eventual repeal of a range of content limitations and requirements for licensees.

Designing a content-neutral scheme to regulate media content directly is not only a complex legal problem, but it is also likely a non-starter. State actors are (rightly) unable to censor or remove content based on the ideological leanings of the content, and media disinformation directly implicates political speech about controversial topics. In an era where cross-platform news media is ubiquitous, the legal status quo has effectively ensured media platforms have near-total discretion to control—or more accurately, not control—the truthfulness of disseminated content.

However, a market-based, bottom-up approach to content regulation could end-run the problems that plague government regulation of cable media. Industry research has suggested that cable “news” outlets generate more revenue from per-subscriber fees applied by cable companies than from advertising carried by those channels. In terms of cable news, per-channel costs are the highest costs in a monthly cable bill. This means that more than eighty million cable subscribers subsidize content that attracts fewer than two million viewers daily, including misinformation.

This paper posits “à la carte” cable packaging as a solution to the subsidy of disinformation. Currently, cable subscribers are forced to buy programming channels even when they would rather not. This is particularly troubling in the case of news information because subscribers who wish to receive some programming are forced to subsidize other news content that may be objectionable. The resulting system of reverse compelled speech means that news organizations keep their subsidy while advocating against the interests of those footing the bill. Eliminating this involuntary subsidy flips the status quo on its head by making trustworthiness part of the bottom line, incentivizing prudent news self-regulation in an entirely content-neutral manner.



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