INTRODUCTION

Democratic institutions rely upon the rule of law, and the rule of law depends upon rational analysis of public matters. ‘fake news’ undermines the rule of law as it derives its strength from appetitive and emotional responses in a manner that threatens both the rule of law and a political culture's willingness to trust in democratic institutions. Even worse, however, the phenomenon of ‘fake news’ creates an atmosphere in which political, media, and cultural elites can exploit fear about fake news in order to forward their own agenda and undermine democratic institutions in favour of political control by a dominant oligarchic elite. In this chapter, we place the ‘fake news’ concern in the context of media regulation in the US. Looking to so-called elite theory, we examine media ownership, reviewing the empirical research showing the elite nature of media ownership and control. We examine how the Internet disrupted this elite, creating ‘elite churn’ in the form of a new media oligarchy. We suggest that the ‘fake news’ phenomenon may simply be a justification for a power grab by this new Internet elite, which can leverage gaps in US media regulation. As such, calls to limit and regulate civic discourse to counter fake news on the Internet may be misplaced and may result in limiting free speech. Rather, the cure for fake news, which has always existed, is not to further empower this new elite. Instead, it is to promote consumer-oriented freedom on the Internet –perhaps combined with stronger antitrust enforcement– to allow a bottom-up corrective pressure.

DEFINING ‘FAKE NEWS‘

The term ‘fake news’ exploded into the public consciousness, at least in the US, during the presidential election of 2016 and its aftermath, and in the UK during the run-up to the 2016 referendum on EU membership. Despite the pervasiveness of the term, like many political and social concepts, the meaning of the term ‘fake news’ eludes consensus (as many supposedly meaningful terms in politics often do).