Fake News: A Legal Research Analysis

Introduction

“I believe,” argued Mark Zuckerberg at a Senate Hearing, “we need a more active role for governments and regulators.”[1] Zuckerberg, the CEO of Facebook, has testified in front of Congress multiple times in regard to the prominence and dissemination of fake news. He urges regulation, asking for help from the government as he drowns in public outcry, outcry for change not just from Facebook, but holistic change to address the growing impact of fake news. Addressing fake news, however, is complicated as it pertains to the right to freedom of expression and speech, or more broadly the First Amendment. First Amendment issues inherently bring with them extra scrutiny, not just legally but publicly as well, and finding a way to regulate fake news will require a balancing act of deciding what’s more important, truth or freedom.

While fake news has become a household term, does anyone really understand what it means? There is a lot of confusion surrounding the topic, which adds to the difficulty of finding possible solutions. An important question that remains unanswered is how to define the term. Fake news takes many forms, from a misleading headline to a completely falsified story, one narrow definition will inevitably leave out some aspects of an increasingly complex issue.

One definition can be understood as “knowingly false statements of fact,” wording pulled from the Supreme Court case Garrison v. Louisiana,[2] an often-cited case in examining fake news and other forms of false statements. However, branching off from false statements, fake news can morph into many shapes, blurring the decision-making process to finding a new approach.

The first section of the analysis portion, Relevant Case Law, provides some legal precedent for addressing fake news. Supreme Court and Circuit Appellate Court opinions have addressed knowingly false statements, and this analysis evaluates how those cases translate into the sphere of fake news. From this basic understanding of the legal background, Section Two, Definition and Harm, uses case law and studies to break down fake news into definable parts and builds a scope of harm. Finally, previously mentioned case law is further discussed, and new remedies are introduced to solve, or more likely, mitigate the problem.

Analysis

Relevant case law

The District Attorney for the New Orleans Parish, Jim Garrison, held a press conference where he attacked the conduct of the Parish’s District Court judges. Under Louisiana state defamatory laws Garrison was convicted of defamation, the decision was then confirmed by the State Supreme Court. The federal Supreme Court then picked up the case, Garrison v. Louisiana,[3] hearing out Garrison’s argument that the statute infringes on the First Amendment.[4]

Referencing New York Times v. Sullivan,[5] Justice Brenna writes in the majority opinion, that claims “made with knowledge of its falsity or in reckless disregard or whether it was false or true,” are subject to criminal and civil remedy. However, Brenna continues to argue that truth is often fluid in matters of public concern, with “erroneous statements” being inevitable in free debate. After all, the country holds a “profound national commitment” to free debate. But with proof of awareness of falsity, there is room to regulate without infringing on the First Amendment.[6] Even with that said, it’s clear in Brenna’s writing it is very difficult to define the line when false speech should become unprotected speech.

According to the court in this case, calculated falsehoods would fall on the side of unprotected speech. The opinion also interestingly highlights how, in the political age of their time, 1964, politicians were wielding deliberate lies more successfully than the framers could have imagined. And despite the lower courts’ interpretations of the attacks on the judges as personal, the Court went as far as to say, “speech used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution.”[7] Why? Because under the precedent of Chaplinsky v. New Hampshire,[8] valueless speech is not protected, and the Court argued knowingly false statements as valueless, hence not protected.

The Louisiana statute in question would still be struck down unanimously because it punished all false statements, not just those that were knowingly false. But there was a clear acknowledgement that knowingly false speech is exempt from protection.

Decades later in 2010, a new case of calculated falsehoods was brought in front of the 9th Circuit, rising to the Court of Appeals. Xavier Alvarez pleaded guilty to saying he was a Medal of Honor recipient, violating the Stolen Valor Act which made it illegal to utter such false claims as they have the ability to damage the award’s reputation.[9]

The Court would rule the Stolen Valor Act violated the Free Speech Clause of the First Amendment. “While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.” The fear of unprotecting all false statements, that both the Supreme Court in Garrison held and now the 9th Circuit courts in Alvarez, would permit legal ramifications for “lying about one’s height, weight, age, or financial status on Match.com or Facebook.”[10]

Giving the government the ability to decide on what truths can be told is a clear overreach and interference with free speech. Meaning, in order for there to be justifiable means to regulate such speech, winning would require passing the strict scrutiny test that accompanies content-based restrictions. The government argued that the Act’s target was “well defined” and “narrowly limited,” wording found in Chaplinsky, could allow “an exemption to ordinary rule.”

But the Court did not think the government had the right to determine which lie or falsity was more important than another. In response, the government claims that promoting truth in turn promotes the free marketplace of ideas. The fault in that is “in nearly every case, an isolated demonstrably false statement will not be considered ‘necessary’ to promoting core First Amendment values,” giving the government the chance to vastly overreach.[11] Instead of improving the marketplace of ideas, the Court ruled that regulating such false statements would inhibit freedom of expression and speech. The Supreme Court would later go to affirm that decision in a 6-3 vote.

A year later in 2011 a similar case, 281 Care Committee v. Arneson, was heard in the 8th Circuit.[12] This time the facts of the case dealt with knowingly false speech in regard to a ballot initiative. The plaintiffs, three Minnesota advocacy groups, were opposing a school ballot initiative that was attempting to increase funding. They argued that the state’s Fair Campaign Practices Act prevented them from being able to speak as freely as they would hope on the issue.

The challenged provision was cited in the majority opinion and stated, “A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material . . . with respect to the effect of a ballot question, that is designed or tends to . . . promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.”

After being publicly accused of spreading such false information, 281 Care Committee challenged the statute’s legality. The district courts would side with Minnesota, however, the appellate court saw things differently. To establish injury in a First Amendment challenge, one does not have to show they were actually prosecuted, “rather, the plaintiff needs only to establish that he would like to engage in arguably protected speech, but that he is chilled from doing so by the existence of the statute.” The court explicitly recognized that their goal was “to exaggerate, and to make arguments that are not grounded in facts,” but it was arguably political, therefore, protected speech.[13] And the plaintiffs were able to show that their outreach lowered considerably after the accusations.

Furthermore, the courts interpreted the case as a content-based restriction, facing the test of strict scrutiny, requiring a compelling state interest and a narrow view on how to achieve their goal. In contrast, the defendants, the Minnesota government, argued that such knowingly false speech is valueless making it exempt from First Amendment Protection. The District courts referenced Garrison in their assertion of false speech as unprotected, what was not mentioned in their defense though was the fact that Garrison dealt with defamation. Not only is defamation already unprotected, it requires an impact on someone’s private interests. Therefore, the appellate courts decided that the Supreme Court’s precedent did not acknowledge false speech alone as unprotected. They also claimed at the appellate level, they had no jurisdiction to set such precedent.

False statements of fact have a history of being deemed valueless by the Courts, further cemented in Gertz v. Robert Welch Inc.,[14] and even Hustler Magazine, Inc. v. Falwell.[15] Yet in recent years, Appellate courts have been distancing themselves from this idea, claiming regulation of falsity a slippery slope toward First Amendment violations. The only way for fake news to find its way under the federal regulation is for a new way to determine what is undoubtedly false, or for a new means to define the term.

Definition and Harm

If fake news were able to be narrowly defined with aspects of knowingly false statements, there would be a chance to pass a strict scrutiny test. While difficult, it would be possible. But with academics, experts, and the public alike all struggling to garner an understanding of what fake news truly is, legal action will be slow to come. It’s hard to even define the problem of fake news as a whole, nevertheless, create a holistic definition.

In today’s sense of the phrase, fake news holds aspects of disinformation, misinformation, malinformation, and even propaganda. It can include information used to influence public opinion, it may simply twist the context of a story, or may make false connections with headlines or photos. Sometimes it’s completely false, sometimes it’s not.[16] Fake news can even be considered satire or parody, but in terms of legal ramifications humor has precedent removing liability, see Sullivan, nor is satire thought of as an influence on the fake news epidemic. Further muddying the water is how sporadic and fast fake news can move, while older “fake” news campaigns had to rely on slower means of dissemination.[17]

Everyone seems to agree that fake news always contains aspects of intentional or knowingly false statements. But the Courts have interpreted that definition as too broad to pass the strict scrutiny test needed for limitations on the First Amendment. Absent a better definition, there will be limited legal recourse. Unfortunately, as of today fake news remains too broad to narrowly define.

But does the harm of fake news not call for harsher and more immediate action? Especially when one considers how quickly and drastically the news is changing. The advent of the internet has changed not only how people get their news, but also how they consume it. For example, today easily digestible lists and an irrational focus on hate catch the most interest, garnering the most clicks. And with the loss of advertising and increasing corporate ownership of media companies, emphasis on monetizing articles through clicks and traffic is building.[18]

Articles are given their own unique URL as well, allowing them to be easily shared. “This put stories, rather than papers, in competition with one another” and placed an emphasis on the “raw buzz” of a story or how many clicks it generates.[19] The problem is only going to get worse as advertising and content continue to dissolve into each other. In other words, the writing of an article is advocating for a specific agenda, meant to illicit reactions from a specific crowd.

In addition to this, articles on the internet can be further monetized by promotion through advertising networks such as Google AdSense, Media.net, or Amazon Associates.[20] Content distributors use algorithms within their sites that use search engines and social media platforms to know what specific news to promote to consumers. Fake news publishers even rely on website domains that are just a slight variation or spinoff of real news sites.[21] Consumers are expected to be savvier than ever, distinguishing between what they think is real and fake. The changing landscape of journalism is removing the traditional barriers and gatekeepers that once sieved out unethical reporting, allowing for the exponential growth of fake news. A Stanford economics study found by analyzing a database of fake news articles published during the 2016 campaign, how many times the stories were shared on social media. The 38 million shares they looked at then translated into 760 million page visits, or nearly three visits per adult.[22]

The impact of the growing influence of fake news on people and politics is still under debate. Many argue it had a major impact on the 2016 election, while others, such as the Stanford study, claim there is no clear correlation between Trump’s win and support from fake news. But the study did conclude that as fake news rises in prominence, trust in mainstream media is falling.[23]

When an article appeared on Twitter accusing a pizza shop in Washington D.C, Comet Ping Pong, of hosting a child sex abuse ring that involved top officials like Hilary Clinton, “Pizzagate” began. The story quickly made its way across Twitter and was picked up by multiple platforms, legitimizing the reporting. Edgard Maddison Welch was particularly appalled by the news so he decided to take things into his own hands. Welch broke into the shop holding a rifle and revolver, eliciting terror from those present.[24] While no one was hurt, the systems in place allowed for false news to reach Welch’s computer and resulted in action, action that very well could have ended with the loss of life.

Possible Solutions

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” said Donald Trump at a Texas Rally in 2016. It is “frankly disgusting,” he went on, “[that] the press is able to write whatever it wants to write.”[25] Trump’s rhetoric embodies the exact reasons why the Court feared handing the government a role in determining truth. In the hands of the government, the power will inevitably turn political.

But not all agree. Judge Bybee, who wrote the dissent in the Alvarez decision stood behind the precedent that valueless speech may be regulated, but when referencing Garrison and later Gertz Bybee pulled precedent from defamation cases. Which, when talking about false statements being unprotected, they are talking in terms of defamation, inherently already unprotected. Similar qualifications can be found in the Alvarez and 218 Care Committee cases as well, the former dealing with false speech and the latter being directly connected to a ballot initiative.

If attempting to weed out false narratives as narrowly as those associated with ballot initiative reaches into the First Amendment, then it seems unlikely a narrow enough definition of fake news will ever warrant restrictions. It will always be too close to infringing on the First Amendment.

There are some current civil legal actions that can be taken to mitigate fake news. For instance, defamation cases give someone the right to seek rewards, but they need to prove more than false claims, they also have to show harmed reputation. Defamation cases often require heavy burdens of proof. They do offer a possible route, however. Take Leonard Pozner, father of the youngest victim from Sandy Hook, who was awarded $450,000 after a book was written claiming the Sandy Hook massacre a government hoax and that Pozner helped fake his son’s death.[26]

When thanking the jury following the case, Pozner pointed out “[the author] has the right to believe that Sandy Hook never happened,” but his award was a symbol that there is also a specific “right of victims like myself and my child to be free from defamation, free from harassment and free from the intentional infliction of terror.”[27] After everything Pozner went through, he still recognized the right for these men to say what they want, but when it crossed the line into harassment, it was no longer an issue of free speech but defamation.

Intentional Infliction of Emotional Distress (IIED) offer another route for particularly extreme cases of fake news. An IIED must be in response to conduct that was intentional, extreme, and caused severe emotional distress.[28] This can cover some fake news stories, but very few.

Realistically, addressing the issue will take lots of smaller steps, mitigating from multiple angles. Older remedies such as simply giving a wider access to resources, the right to reply, or media transparency are no longer enough, and labeling fake news as unprotected isn’t an option either. But what if there was a way to define parts of fake news as commercial speech or advertising, giving the Federal Trade Commission (FTC) means to oversee practices through deception and truth in advertising regulations? Commercial speech also “affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”[29]

There is an argument to be made that fake news is written strictly to go viral, a monetized click. Furthermore, algorithms are often feeding what type of content a consumer receives, attempting to maximize the reader’s attention.[30] These algorithms have the ability to show importance, and bots can trick them into exaggerating the relevance of a fake news article. A reader doesn’t even have to seek out a fake news article to come across one, instead the content is pushed towards them like a form of advertising.

Any “advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence.”[31] This gives the FTC the right to use legal action, provide both consumer and business education, which is important in building media literacy and fair practice methods, and issue policy guidance.

However, if fake news were to be defined as knowingly false commercial statements, it would still fall far short from encompassing all fake news, and still require some party deciphering fake news stories guised as real ones. That leaves a need for enforcement at the lower levels. Media literacy programs should be built into school curricula, educational services must be given to content providers as well.[32] Education may help, but it will only do so much. The real target needs to be aimed at the methods of distribution rather than the content itself. This means a lot more effort from the distributors themselves.

A common possible solution is attacking the bots, who autonomously promote fake news stories by generating traffic. Building traffic pushes a story closer to the top of a sites’ algorithms, more likely reaching a viewer’s screen. Targeting these promotional strategies, bots and algorithms, will lessen the economic incentive of fake news and limit its reach.

Mark Zuckerberg, CEO of Facebook, has heard the public outcry for change and in testimonies in front of the U.S Congress he has outlined proposed policy changes within their company to also disrupt the economic incentive of the stories, as well as new tools to identify fake news. Success has been limited, and Zuckerberg has urged for the government to intervene. But legally it appears the only route the government truly has is to build legislation that would help establish the lower level solutions. There is no direct attack option.

Conclusion

The United States values freedom, people expect freedom, and they fear losing freedom. Fake news unfortunately has little breathing room between regulation and infringing on the First Amendment, exactly why the Courts do not want all knowingly false statements unprotected. In order to place restrictions on protected speech, the government must be able to show a compelling state interest and have a narrowly tailored means of attaining that goal. Unfortunately, there is no consensus on how to define “fake” news. What people can agree on is the fact that there is a problem. The solutions are not going to come from the Court, who fear by ruling false statements as unprotected speech, they open the gates for immense governmental overreach.

It may seem inherently wrong to legally allow lying, but keeping the free marketplace of ideas in tact has taken precedence over fighting the issue of fake news. With the government handcuffed, stuck behind the barriers of protected speech restrictions, change will have to come from the content distributors, the consumers, and some sort of independent third party that can help implement technological defenses.

[1] Spencer Kimball, “Zuckerberg Backs Stronger Internet Privacy and Election Laws: 'We Need a More Active Role for Governments'.” CNBC.COM(31 Mar. 2019), at www.cnbc.com/2019/03/30/mark-zuckerberg-calls-for-tighter-internet-regulations-we-need-a-more-active-role-for-governments.html.

[2] 379 U.S. 64 (1964)

[3] 379 U.S. 64 (1964).

[4] "Garrison v. Louisiana." OYEZ.COM. (Nov 20, 2019) at www.oyez.org/cases/1964/4

[5] 376 U.S. 254 (1964).

[6] 379 U.S. 64 (1964).

[7] Id.

[8] 315 U.S. 568 (1942).

[9] U.S. v. Alvarez, 617 F.3d 1198 (9th Cir. 2010).

[10] 617 F.3d 1198 (9th Cir. 2010).

[11]Id.

[12] 638 F.3d 621 (8th Cir. 2011).

[13] 638 F.3d 621 (8th Cir. 2011).

[14] 418 U.S. 323 (1974).

[15] 485 U.S. 46 (1988).

[16] Andrei Richter, Fake News and Freedom of the Media, THE JOURNAL OF INTERNATIONAL MEDIA & ENTERNTAINMENT LAW VOL. 8 (2018).

[17] Id.

[18] Jill Lepore, Does Journalism Have a Future, NEWYORKER.COM. (June 25, 2019) at https://www.newyorker.com/magazine/2019/01/28/does-journalism-have-a-future

[19] Id.

[20] David Klein and Joshua R. Wueller, Fake News: A Legal Perspective, THE JOUNRAL OF INTERNET LAW, VOL. 20 (April 2017).

[21] The Information Society Project, and The Floyd Abrams Institute for Freedom of Expression. Fighting Fake News. 2017, Fighting Fake News.

[22] Hunt Allcott and Matthew Gentzkow, Social Media and Fake News in the 2016 Election, JOURNAL OF ECONOMIC PERSPECTIVES, VOL. 31 (2017).

[23] Id.

[24] Merrit Kennedy, Pizzagate' Gunman Sentenced To 4 Years in Prison, NPR.COM. (June 22, 2017) at https://www.npr.org/sections/thetwo-way/2017/06/22/533941689/pizzagate-gunman-sentenced-to-4-years-in-prison

[25]Jane Kirtley, Getting to the Truth: Fake News, Libel Laws, and ‘Enemies of the American People, AMERICAN BAR ASSOCIATION at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/getting-to-the-truth/

[26] Emily Rueb, Sandy Hook Father Is Awarded $450,000 in Defamation Case, NYTIMES.COM. (Oct. 16, 2019) at https://www.nytimes.com/2019/10/16/us/sandy-hook-defamation.html

[27] Id.

[28]David Klein and Joshua R. Wueller. Fake News: A Legal Perspective.

[29] United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)

[30] Andrei Richter, Fake News and Freedom of the Media, THE JOURNAL OF INTERNATIONAL MEDIA & ENTERNTAINMENT LAW VOL. 8 (2018).

[31]Federal Trade Commission, Truth in Advertising. FTC.gov at https://www.ftc.gov/news-events/media-resources/truth-advertising

[32] Fighting Fake News, 2017.