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Lies and Libel: Fake news lacks straightforward cure

Words matter. Just ask James Alefantis, owner of the Comet Ping Pong restaurant in Washington, D.C. Starting Nov. 5, Alefantis and the employees at his pizzeria received hundreds of death threats via texts, Facebook messages and Twitter. One of these informed Alefantis: “I will kill you personally.”

A month later, 28-year-old Edgar Maddison Welch walked into Comet Ping Pong with an AR-15 assault rifle and fired repeatedly.

Why were Alefantis and his employees targeted? Because of a lie that was preposterous on its face: The basement of Alefantis’ restaurant was the headquarters of a worldwide child sex slave ring run by Hillary Clinton and her former campaign manager, John Podesta.

There was never any evidence supporting this accusation. The restaurant doesn’t even have a basement. Never- theless, many reports of this “criminal conspiracy” were widely shared on social media and were pushed by Alex Jones on his widely syndicated radio show and his influential website, Infowars.

The news story was fake, but the consequences were all too real. Threats from the story’s believers frightened Alefantis and his employees, causing several to quit. The restaurant hired security personnel to guard concerts held there.

No one was shot by Welch. He had come to rescue children from supposed subterranean captivity yet discovered nothing but an ordinary restaurant. Welch later gave up peacefully to police. Former patrons of Alefantis’ restaurant, however, may think twice about visiting the family-friendly venue after an armed man was taken into custody there.

One might think, after suffering all this, Alefantis should have a legal remedy. He should be able to bring libel suits against Jones and other purveyors of the child sex slave lie. (In fact, Jones recently settled a lawsuit by the Chobani yogurt company for defamation and breach of the Idaho Consumer Protection Act after videos and social media posts, including a Twitter-circulated video that had the headline “Idaho Yogurt Maker Caught Importing Migrant Rapists.” Jones issued an apology on May 17; no other details were announced.)

But Alefantis has not sued. Nor has Comet Ping Pong, Clinton, Podesta or almost anyone defamed by the deluge of fake news stories in 2016.

Sidebar: Yesterday’s (Fake) News

Real Confusion

“In the last year, especially during the election, fake news became very pervasive,” says Larry Atkins, a journalist and adjunct professor at both Temple University and Arcadia University. This has not merely harmed people’s reputations; it has produced pernicious effects for U.S. politics and society. Fabricated news stories are causing a great deal of confusion about the basic facts of current issues and events, according to 64 percent of U.S. adults surveyed in December by the Pew Research Center, a nonpartisan research organization.

The confusion and misinformation caused by fake news is undermining America’s ability to govern itself, experts fear.

“Misperceptions are consequential. They have profound importance in our system of government because the people are charged with making choices based on information. People don’t have to be experts, but they have to have a foundation of knowledge,” says R. Kelly Garrett, an associate professor of communications at Ohio State University.

There may seem to be an obvious way to attack fake news: Sue for defamation. The plaintiffs might win huge awards, driving some purveyors of fake news out of business. Fear of libel suits might cause the creators of fake news to rethink their behavior and hew more closely to the truth.

Libel suits can raise tricky legal issues. Defendants may be protected by statute or beyond the reach of U.S. law. Plaintiffs may not want to sue for fear of further publicizing false charges. And in the end, would prosecuting libel suits be good public policy? To what extent would successful lawsuits help stamp out fake news?

The current occupant of the White House and his administration have adopted a broad definition of “fake news.” They label as fake any news story they argue is biased or inaccurate (usually when the story opposes an administration stance and often without offering any evidence of the story’s supposed bias or inaccuracy).

Thus, on Feb. 6, President Donald Trump tweeted: “Any negative polls are fake news.” On Feb. 17, he tweeted that ABC, CBS, NBC, CNN and the New York Times were “the FAKE NEWS media.”

The administration is misusing the term fake news, according to experts in journalism. Fake news is “deliberately and strategically constructed lies that are presented as news articles and are intended to mislead the public,” says Barbara Friedman, an associate professor at the University of North Carolina’s journalism school.

Fake news is different than biased news. “Biased news articles are not lying or misrepresenting facts,” says Atkins, author of the book Skewed: A Critical Thinker’s Guide to Media Bias. “They are cherry-picking quotes or facts to back up their position but think they are telling the truth. MSNBC will show a positive slant on Obamacare. Fox News will have a negative slant. Neither is fake news because both networks are just cherry-picking facts, not making stuff up.”

Inaccurate news stories are not fake. “News that isn’t well-sourced and that has unintentional mistakes in it isn’t fake news,” Friedman says. “That’s because providers of real news—unlike sources of fake news—strive for accuracy and work to correct their errors.”

And fake news isn’t a new phenomenon. (See sidebar, “Yesterday’s (Fake) News.”) “There has always been fake news. There has always been made-up stories and hoaxes, and some have circulated quite widely,” says economics professor Matthew Gentzkow of Stanford University, a research associate for the nonprofit National Bureau of Economic Research.

But today’s fake news is different because it typically does not come from established media organizations. Fake news now originates online from politically motivated groups or individuals just seeking to make a quick buck. They can quickly and cheaply create fake news and spread it to millions via social media.

A group of teenagers in the Balkan nation of Macedonia, for instance, was responsible for creating thousands of fake right-wing news articles, many of which went viral. When social media users clicked through to the teenagers’ phony news websites, the youths made money from online ads.

“In the past, there was no mechanism for some kid to make up a story and the next day it is seen by millions of people,” says Gentzkow. “Social media have changed things by making it much easier and faster to spread fake news. And it makes fake news financially profitable.”

As Seen on Facebook

Fake news is just a small fraction of all available news, but it has garnered quite a following on social media. In the last three months of the 2016 election, the top 20 fake news stories on Facebook generated more shares, likes and comments than did the top 20 news stories from mainstream media, according to an analysis by BuzzFeed.

During this time period, “fake news [on social media] was both widely shared and tilted in favor of Donald Trump,” with pro-Trump fake stories shared 30 million times and pro-Clinton fake stories shared 7.6 million times, professors Hunt Allcott of New York University and Gentzkow wrote in a study published Jan. 17, “Social Media and Fake News in the 2016 Election.”

“The extent to which fake news is part of social media is alarming,” says Rachel Davis Mersey, an associate professor of journalism at Northwestern University’s Medill school. “A frighteningly high extent of people are getting their news from social media.”

“Among millennials, Facebook is far and away the most common source for news about government and politics,” the Pew Research Center declared in a June 2015 report. “The younger you are, the more likely you are to get news from social media and to get your news only from social media,” Mersey says.

But reliance on social media isn’t limited to the young. Sixty-two percent of adults get some news there, and 18 percent do so often, according to a May 2016 Pew report. Moreover, 14 percent of Americans called social media their “most important” source of election news, according to Allcott and Gentzkow’s study.

Social media create significant political effects. Twenty percent of social media users report they modified their stances on social or political issues because of material they saw on social media, according to survey results published by the Pew Research Center on Nov. 7, 2016. Seventeen percent of those surveyed said social media helped change their views about a specific political candidate.

And that’s why it’s worrying that so much of the news on social media is fake.

 

Real Effects

Fake news has three main effects. First, it fools some people, causing them to believe in falsehoods. “We estimated that half the people who saw fake news stories believed they were true,” says Gentzkow.

These falsehoods are not limited to ridiculous stories of child sex slave rings. They harm people’s knowledge of important public matters.

“Before the election, 84 percent of people said there was disagreement over the basic facts of public issues. Fake news is driving this confusion,” says Michael Barthel, a Pew research associate.

Fake news also makes people uncertain about what facts to believe and which sources of information to trust. This has harmed the credibility of the mainstream media, which are already reeling under weak finances and a decadeslong conservative attack on the “lame-stream media.”

In 2016, Americans’ trust and confidence in the mass media “to report the news fully, accurately and fairly” dropped to its lowest level in Gallup polling history, with just 32 percent of respondents indicating they had at least a fair amount of trust in the media.

“It is pretty clear there is a crisis of credibility,” Gentzkow says.

The mainstream media aren’t the only ones whose credibility has suffered. Intelligence agencies, scientists and many other experts are no longer seen as trust-worthy by many politicians and voters.

“It is harmful to assert you can only trust what the people on your side tell you. When high-profile political figures make these claims, as Trump repeatedly has, that is dangerous,” says OSU’s Garrett. “When we cast aspersions on all institutions that seek to gather and disseminate knowledge, how do we make public policy decisions?”

The third effect of fake news is that it widens the nation’s partisan divide, inflaming people’s fears and hatreds. “Fake news is ... making people double down on opinions they already have,” Mersey says.

As an example, Mersey also offers Pizzagate: “Opponents of Hillary may not believe Pizzagate occurred, but they nevertheless become more certain they don’t like her. It increases the intensity of their emotion,” she says. “Hillary supporters, who see Pizzagate as false, become more certain she is being unfairly attacked and become more strident in defense of her.”

Fake news creates a vicious circle. Such news stokes partisan division, which in turn leads people to believe only news that supports their views, which further heightens partisan division.

Sue Who?

For centuries, libel suits have been used against those who intentionally spread false accusations about others. And such suits could be brought against today’s purveyors of fake news. But anyone bringing such suits would face significant obstacles.

One obstacle is finding suitable defendants. There are many potential targets: Anyone who creates defamatory lies can be sued, as can anyone who repeats these lies.

But some defendants, like the Macedonian teenagers, are outside the country, so it may be difficult to enforce any U.S. court judgment against them.

Moreover, these teens—and many other potential defendants—often lack sufficient funds to justify bringing lawsuits against them.

“Bringing a libel suit isn’t inexpensive, and if a defendant doesn’t have deep pockets, it may not be worthwhile to bring suit,” says Shaina Jones Ward, a senior associate in the Washington, D.C., office of Levine Sullivan Koch & Schulz and a member of the ABA’s Forum on Communications Law.

Facebook’s pockets are plenty deep, as are those of YouTube, Twitter and Reddit. Such online media outlets, however, are protected by Section 230 of the Communications Decency Act of 1996. This federal statute declares that providers of interactive services are not liable for content posted by their users.

The intent is to protect free speech online. A contrary rule “would be like holding a mailman liable for defamatory content in a letter that he delivered,” says Robert P. Latham, a partner in the Dallas office of Jackson Walker and another member of the Forum on Communications Law.

That leaves a relatively small number of possible deep-pocket defendants. Financially successful websites, such as Infowars, that allegedly posted fake news could be targeted. So might famous and successful individuals allegedly responsible for fake news—people such as radio host Jones. Because of the First Amendment, however, it could be tricky to prove that any of these people or organizations committed libel.

Liable for Libel

In the landmark New York Times v. Sullivan decision, the U.S. Supreme Court held that the Constitution’s protections for freedom of speech and the press restrict the scope of libel law. The court declared that in order for a public official to obtain damages for a defamatory falsehood relating to the official’s conduct, the official must prove the defendant made the defamatory statement with “ ‘actual malice’—that is, with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.”

The high court subsequently read this First Amendment protection broadly in Gertz v. Robert Welch Inc. Actual malice was required in libel actions brought by a public official or a public figure if the allegedly defamatory article concerned an issue of public interest and concern.

Thus Clinton might well need to prove actual malice if she wanted to win a libel suit against Infowars and its creator, Jones. As the Democratic candidate for president, former Secretary Clinton was a public figure, and the assertion that she masterminded a child sex slave ring certainly merited public concern.

Law professor William McGeveran of the University of Minnesota notes that to satisfy the first part of the actual malice standard, a plaintiff must prove the defendant knew the statement was false but published it anyway. Showing this state of mind is often impossible, which is why plaintiffs usually rely on the second aspect: Did the defendant act with reckless disregard for the truth?

“‘Reckless disregard’ allows one to infer intent by the defendant’s disregard of objective evidence,” Ward says. “The plaintiff can show many sources had debunked the story before its publication, or that the sources for the story were not trustworthy.”

“Courts also look at the inherent improbability of the [defamatory] statements,” says Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida.

Public figures vilified by outrageous fake news stories could thus have a reasonable probability of proving reckless disregard. “Hillary Clinton would have a good shot at winning a libel suit against Alex Jones,” Calvert asserts.

Public vs. Private

Not all libel plaintiffs need to prove actual malice. The Constitution permits a private individual to win a libel suit by merely showing the defendant acted negligently in publishing the defamatory statements, the Supreme Court held in Gertz.

This would help Alefantis and his restaurant, Comet Ping Pong, should they wish to sue. Neither was famous prior to the fake news stories. (In March, Jones publicly apologized to Alefantis and his business neighbors, but not Clinton or Podesta.)

Private individuals, however, can sometimes be deemed “limited-purpose public figures,” requiring them to prove actual malice. “Ordinary people get sucked into public affairs and become limited-purpose public figures all the time,” says McGeveran. “People who commit crimes or are wrongfully accused of crimes by police” would fall into this category, he says, because crimes are matters of public concern.

One might argue, therefore, that Alefantis and his restaurant were limited-purpose public figures since they were caught up in allegations that a major party presidential candidate was committing a heinous crime.

That is a somewhat tenuous argument, however, because in Pizzagate, the police made no accusations of criminal activity. The accusations came only from highly partisan private entities, such as Jones and Infowars.

“It looks like the matter of public concern was totally fabricated,” McGeveran says. “So for the people who created these stories, the actual malice standard shouldn’t apply.”

The situation may be different for those who simply reposted or retweeted the fake news stories. “I see an argument for considering Pizzagate to be a matter of public concern, at least for those people who repeated it thinking it was true,” says McGeveran. He concedes this argument would “test the boundaries about what is a matter of public concern, but the libel doctrine is set up to give a great amount of leeway on that.”

To be guilty of libel, a defendant must have made a false statement of fact, including an opinion that implies incorrect facts. However, opinions, hyperbole, satire and imaginative invective are all protected by the First Amendment and beyond the reach of libel law.

This could be used to defend purveyors of fake news. “Defendants could argue the stories about Pizzagate were imaginative expression, not meant to be taken literally—that no reasonable person would take those stories literally,” says Calvert. “The court would look at whether Alex Jones was presenting the stories as real news. If those stories purported to be factual, no matter how outrageous they were, they would be actionable.”

At What Cost?

Should a purveyor of fake news be found guilty of libel, the financial consequences could be severe. The defendant would be on the hook for three different types of damages:

• Special damages compensate the plaintiff for quantifiable financial harm. In the case of Alefantis and Comet Ping Pong, for instance, the special damages could include lost business and the costs arising from added security and hiring replacement employees.
• General damages compensate for harm to the plaintiff’s reputation. These damages can be fairly large.
• Presumed or punitive damages “are where the big money comes from,” Calvert says. Punitive damages, however, can be difficult to get. If the libel involves a matter of public concern, a plaintiff must prove the defendant acted with actual malice. Some states, such as Massachusetts, have adopted an even tougher rule. They have statutes forbidding all punitive damages in libel suits.

The final obstacle to suing purveyors of fake news for libel is the costs of bringing such suits. Those costs go beyond those of litigation.

Suing for libel can harm the plaintiff’s reputation by bringing the false charges to wider public attention. As the trial drags on, the false allegations can be spread by the media for months, perhaps years. Even if the plaintiff wins the suit, much of the public will remember the charges and forget the trial result.

This may be the main reason why no libel suits have been brought against purveyors of recent fake news.

“Why would Hillary Clinton want to file a libel suit in which she would have to have her deposition taken and give more publicity to the Pizzagate story?” Calvert asks.

This may also explain why Alefantis declined to make any comment for this article; he presumably wants to put the Pizzagate allegations behind him.

Still, not suing may make sense for those traduced by fake news, but it may be a bad result for American society. Such libel suits could help stanch the flood of fake news, “especially if one of these cases results in a large monetary award,” says Ward. A large judgment could put a fake news site out of business and make others think twice about engaging in fake news.

Libel suits, however, can never single-handedly solve the problem of fake news because it is so easy to create fake news online. “Fake news is a moving target, and using libel to address it will be like playing whack-a-mole. Even if a plaintiff wins one suit, another piece of fake news will pop up,” Calvert says.

Other Remedies

Online companies, embarrassed by fake news’ use of their services, are striking back.

Google is terminating ad revenues to fake news sites, and it’s revising its software so that misleading articles will appear lower in its search results. If a top search result provides false or misleading information, users will sometimes be given the opportunity to flag the result as inaccurate.

And when a user searches for information on a highly disputed subject—for example: Was 9/11 a hoax?—Google is working to make the top result come from a fact-checking site such as PolitiFact or Snopes.

Facebook is banning fake news sites from displaying ads on its pages. It has introduced a system that searches for fake news items posted on the social network, and it allows users to mark them as fake. If a story’s accuracy is questioned by either method, the piece is examined by independent third-party organizations.

In the United States, the review is done by members of Poynter Institute’s fact-checking network, such as Snopes, PolitiFact or the Associated Press. In Europe, fact-checking is done by a variety of organizations, including the BBC (for posts in the U.K.), the Libération newspaper (for posts in France) and a group of German investigative journalists (for posts in Germany).

If a story is found to be false, it will be demoted in the news feed, labeled on Facebook as “disputed,” and users who attempt to share the story will be warned that its accuracy has been disputed by whatever organizations found it to be false.

It’s unclear how much impact all this will have, in part because it can take days before fact-checkers can declare a story is false. That gives plenty of time for a false story to spread.

Reputable news media also are fighting fake news and are more willing to label assertions as false or unfounded, or even as lies. They are collaborating to identify fake news and make the results freely available.

In Europe, a fact-checking collective has so far garnered 37 organizations, including the BBC, International Business Times, Bloomberg, Le Monde and Agence France-Presse. Le Monde has gone further, making Chrome and Firefox plug-ins that provide pop-up warnings when users view dubious stories.

The U.K. is opening a parliamentary investigation into how fake news is created and spread, how it affects democracy and how to combat it. The German government tabled a bill that would penalize social media if they fail to promptly block and delete fake news from their services. Penalties would reach up to 50 million euros ($54 million), and corporate officials could face fines of up to 5 million euros ($5.4 million).

The United States is unlikely to follow Europe’s lead, largely because the First Amendment constrains government action.

“It is extremely difficult to define in a clear way the boundary between fake news and alternative viewpoints,” says McGeveran. “You may know it when you see it, but it is a danger to impose limits on speech.”

According to experts, instead of prohibiting or punishing fake news, the government should better educate people to be more thoughtful consumers of news. Some schools are already teaching students about credible sourcing on social media. More needs to be done.

“I would love media literacy to be taught in schools as part of civics education,” Mersey says.

Friedman concurs: “The U.S. has never had robust education of media literacy as, say, Canada has. That lack of education contributes to people’s inability to distinguish between real and fake news.”

In the end, individuals need to put more effort into their own news consumption. A first step is to break out of political echo chambers and take a more cautious approach to the news.

“They need to be savvy analysts of any story that purports to be real news,” Calvert says. “They should think critically about the content they are reading, rather than just accepting it at face value.”

This is particularly important when people find congenial news articles. “One strategy Americans can use is to be aware of this: Recognize that if your emotional buttons are hit, you are less likely to deploy your critical-thinking skills,” says Garrett. “Before you share a link that says, ‘Trump is terrible’ or ‘Democrats are terrible,’ think carefully.”

Finally, people need to become more active in their support of truth. They should provide financial support to reputable news media and speak out when they come across fake news.

“Don’t be quiet when people are spreading misinformation. Don’t be nasty, but say the information is wrong,” says Garrett. “If a lot of people do that, it can be influential.”

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Steven Seidenberg is an attorney and freelance reporter in the greater New York City area.

This article appeared in the July 2017 issue of the ABA Journal with the headline “Lies and Libel: Fake news is just false, but its cure may not be so simple.”