The Regulation of Misinformation and Disinformation on Social Media
By: Lucy La Fond
Social media is the Silk Road of the 21st century. Ideas and opinions are being exchanged at an unprecedented speed. Because of this, many people are becoming increasingly concerned about the amount of false information present on social media. To combat this false information, American lawmakers should pass educational and preventative laws to regulate the spread of misinformation on social media, but not pass any additional laws to regulate the spread of disinformation. The spread of disinformation on social media should be challenged as defamation in court. These approaches are backed by years of precedent such as the media literacy bill H.R.6971 and the defamation cases Carroll v. Trump (2022) and Beauharnais v. Illinois (1952).
Misinformation is the "inadvertent spread of false information without intent to harm…" while disinformation is "...false information designed to mislead others and is deliberately spread with the intent to confuse fact and fiction" (Palfrey 2025). Intent is the differentiating factor in deciding what is misinformation versus what is disinformation. Misinformation, because it is unintentional, falls under the First Amendment's freedom of speech protections. If a crime is lacking intention, the punishment is lesser, or it is not considered a crime at all. Misinformation shouldn't be considered a crime, because if the government begins to regulate the spreading of accidental falsehoods, or genuine but misguided statements, they are violating the First Amendment. Disinformation, on the other hand, is within the government's jurisdiction to prosecute because it is intentionally malicious.
Instead of creating laws to prosecute those who spread misinformation, preventive media literacy laws should be created to educate people about the spread of misinformation. The better people are at recognizing misinformation, the less it spreads. Media literacy training has been shown to improve people's ability to pick out misinformation in news headlines by 26.5% (Guess et al. 2020), and it is defined as "the ability or skills to critically analyze for accuracy, credibility, or evidence of bias the content created and consumed in various media, including… social media" (Dictionary.com n.d.). The Stanford History Education Group (2016) found that high schoolers and middle schoolers in particular are highly susceptible to false information spread through social media, and many places around the country have begun to create media literacy laws and programs geared towards them. In 2018, California passed their media literacy law that required the state government to provide schools with online media literacy tools, and Illinois has, as of 2022, required some form of media literacy classes to be offered at high schools (Middlemass and Sanchez 2022). In 2022, Representative Donald S. Beyer, Jr. of Virgina introduced H.R.6971, also called the Educating Against Misinformation and Disinformation Act, which "establishes a commission and requires other activities to support information and media literacy education and to prevent misinformation and disinformation" (Congress n.d.). Laws like these are what America needs to use to stop the spread of misinformation online.
Disinformation, because it is used intentionally to confuse or cause harm, can be challenged in court using pre-existing defamation laws and precedents. Defamation is defined as "the act of communicating to a third party false statements about a person that result in damage to that person’s reputation" (Britannica 2025). It is almost impossible to create laws that directly address specific topics of disinformation, such as election conspiracies or vaccine disinformation, because the American public is so split on issues like these. The only topics of disinformation that could be regulated by specific laws are ones that the general public agrees are false, such as the flat-Earth conspiracy. Though, these topics, whether misinformation or disinformation, tend to not be harmful to the public, and therefore aren't the ones worth regulating. Furthermore, when the topic in question is particularly polarizing, it is not the government's place to dictate what people can and cannot say. That is the job of juries in court. This is why, to combat disinformation, lawyers need to take advantage of existing defamation laws and precedent. In 2019, columnist E. Jean Carroll published excerpts from her upcoming memoir, in which she accused then-president Donald Trump of raping her in 1996. Trump denied the accusation and called Carroll a liar, claiming that she was making up the story to sell her book. Because of Trump's backlash, Carroll began to receive hate mail and death threats. She filed a lawsuit against Trump after he left office, and the jury found him liable for sexually abusing and defaming her. Carroll was awarded over $88 million in damages over the course of two trials (Bekiempis 2024; Harris 2024). The jury, in finding that Trump had sexually abused Carroll, proved that he had defamed her, thus making this case an excellent example of how defamation laws can be used to combat disinformation.
Using defamation to fight disinformation can apply to a defamed group of people as well as a singular person. If someone replies to or comments on a social media post with defamation and disinformation, even if it's vague and they don't name the original poster in their response, they are still defaming the original poster and therefore can be held accountable. In cases where there is no specified target of the defamation, group libel precedent from cases such as Beauharnais v. Illinois (1952) can be applied. In Beauharnais v. Illinois (1952), the court upheld that it is "unlawful to defame a race or class of people," forming the basis for hate speech laws and group libel today (Legal Information Institute n.d.).
Misinformation and disinformation have no place on social media, but it's not the government's job to punish misinformation, because then it would be violating Americans' First Amendment rights. Instead, it is clear that misinformation needs to be dealt with preventatively using media literacy education, and that lawyers should use existing defamation law to fight disinformation in the courtrooms. This way precedent is adhered to and the American public, along with their First Amendment rights, is protected.
Bibliography
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