What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble

The results and aftermath of the 2016 US presidential election have brought increased attention to the dynamics of the contemporary news and information ecosystem and how these dynamics affect citizen knowledge and political decision-making. A central tenet of the First Amendment is that more speech is an effective remedy against the dissemination and consumption of false speech. This article seeks to unpack the set of assumptions about the dynamics of the production, dissemination, and consumption of news that are embedded in the counterspeech doctrine. Specifically, this article argues that conditions, such as the structural and economic changes that have affected the news media, increased fragmentation and personalization, and increasingly algorithmically-dictated content dissemination and consumption, affect the production and flow of news in ways that may make it more difficult than it has been in the past to assume that legitimate news will systematically win out over false news.