96 N.C. L. Rev. 270 (2017)
In every state in the United States, slander, libel, or defamation laws protect individuals’ reputations from destruction by false statements. Why then, do the subjects of fake news stories who suffer reputational and—in some cases—actual harm, not sue under state defamation law? After all, using the “Pizzagate" story as an example, it was published with no concern for the accuracy of the statements made within it, and it substantially harmed the restaurant, its owner, and the Clintons. Yet neither the Clintons, the store, nor the owner ever brought suit against the authors of the story or the websites through which it was disseminated.
Despite the desire to protect the reputations of private citizens, much of the case law regarding defamation demonstrates courts’ hesitancy in making it easier for plaintiffs to recover in defamation lawsuits. While it may at first seem to be unproblematic to attack purveyors of fake news articles containing defamatory content, it is important to recognize that strengthening defamation law may place increased restrictions on publications, thereby impacting the freedom of speech guarantee within the First Amendment. Expanding laws regulating online defamation is likely to have a “chilling effect” on freedom of speech. Chilling free speech has been a constant concern for courts in libel and defamation cases.