ABSTRACT
In this essay, I raise the question of whether fake news—which I understand as false statements that are presented in the form of real news in order to mislead a target audience and are likely to be believed by the latter—should be subject to legal regulation. In particular, I am interested in political fake news published during the pre-election period. According to a strong U.S. judicial tradition, the regulation of mendacious political speech is unconstitutional, since it involves the imposition of content-based restrictions on a protected category of free expression. I discuss certain arguments in favour of this approach, which I do not find convincing in the case at hand. This conclusion combined with the threat fake news constitutes to conducting free and fair elections, provides us with strong prima facie reasons for making its publication and deliberate dissemination punishable by law, although more discussion and deliberation are needed before a final legislative decision is made.
