Legal Realities of Fake News and Its Consequences
By Debra Bruno
December 13, 2016
For many in D.C.'s legal community, fake news was the domain of the tabloids they saw in the grocery store checkout line: Who was abducted by aliens? Which celebrity has gained 100 pounds? Who is getting divorced for shocking reasons?
Then came Sunday, December 4, and a man from North Carolina showed up with a rifle at D.C.'s Comet Ping Pong pizza restaurant because he had read about an alleged child sex trafficking ring engineered by Hillary Clinton and John Podesta, the former chair of Clinton's presidential campaign. Just like that, fake news became far more sinister and terrifying.
Edgar Maddison Welch, 28, didn't shoot anyone, although he did allegedly shoot a doorknob in his search for supposedly hidden children. But the fact that he and many others believed a bizarre story tied to fake news organizations has raised some important questions.
What happens when faith in the marketplace of ideas is undermined? What is protected speech? Should government regulate Internet service providers who might help to amplify language that could present a "clear and present danger" to someone? Who is liable when there is violence?
There are no easy answers, of course. Fake news has been around for generations, but what's new is the speed at which it can be disseminated.
In addition to the First Amendment, of course, the landmark 1964 U.S. Supreme Court case, New York Times Co. v. Sullivan, established the standard for actual malice in speech—the person or organization publishing information had to know it was false or act in "reckless disregard" of its truth or falsity.
Nevertheless, the claims leading up to the incident at Comet Ping Pong could be construed as defamation, says Danielle Citron, a University of Maryland law professor. The actual malice standard could be met by clear and convincing evidence, she says, adding that the idea of a lawsuit is wildly hypothetical since Clinton is unlikely to bring one.
Laura Handman, a Davis Wright Tremaine LLP partner and litigator who has handled numerous libel and First Amendment matters, says that defamation law does provide a remedy for fabricated news. There could be real claims of harm, for instance, from businesses that suffered damages—and those lawsuits could serve as a cautionary tale, she adds.
As for other solutions, Handman says it's probably beyond the capability of Google or Facebook to investigate everything that's posted, and doing that could affect the sites' protection under Section 230 of the Communications Decency Act, which gives them immunity to liability from information provided by others.
Nevertheless, some of the Internet service providers have taken up this question. In a November 19 post on Facebook, founder Mark Zuckerberg detailed what his company was doing about "misinformation." Zuckerberg said Facebook is considering better ways for people to report links as false and is exploring ways to label some stories with a warning and to examine its policy on advertising. "We're looking into disrupting the economies with ads policies" that make it more clear that Facebook bans advertising from fake news sites, he wrote. Google also said it would ban advertising from fake news sites.
Twitter and other platforms should think about what it could do to, for instance, highlight verified sources in its feed and possibly even bury and filter fake news, says Citron, who wrote the 2014 book, Hate Crimes in Cyberspace. That book, which deals with cyber-harassment and stalking, also argues that there are practical and legal ways to punish online harassment.
In the case of Comet Ping Pong, Citron says, it would be tough to get a prosecutor to bring criminal action against the author of that fake news. "I hope we are going to see prosecution of the people who bring the guns" to places like a pizza parlor, she says, "but I'm hoping we don't see prosecution of the purveyors of fake news. The First Amendment is too important."
Instead, she says, "I hope platforms [like Facebook and Google] think hard about ways to use technology to make much more salient news from verified authenticated sources that deserve our sense of public trust."
Those credible news organizations must be valued, Citron adds. "These debates about false news are undermining our democracy. You can't decide the democracy you want based on utter and sheer falsehoods. That's not a meaningful choice."
Neil Richards, a Washington University Law professor who specializes in privacy, First Amendment, and information law matters, says that putting the onus on Internet service providers misses the point.
"The problem is that the way human beings in our democracy are consuming information is arguably broken," he says. The "eco-system of junk" that is circulating serves commerce, not rational thought.
One solution is for the United States to adopt a policy that funds credible news sites, the way England supports the BBC while maintaining a "broad firewall between news content and political interference," he says.
While the "law can only do so much," Richards says, the fact that to "'shrink belly fat with one weird trick' is morally or legally equivalent to a scandal with the presidency" is a huge problem.
Citron cites the Civil Rights Movement of the 1960s, covered by The New York Times and protected by a High Court battle. Once again, she argues, "we're in a new battle about speech and ideas. I think it's at the core of our democracy."
"In limited circumstances, a legal remedy might be the answer," Handman says. "But in general the answer is more speech, calling out when things are false."
Debra Bruno is a freelance journalist who writes for the Wall Street Journal, the Washington Post, and Washingtonian Magazine. She lived in China for three years and has worked at Legal Times, Roll Call, and other publications.