Fake news is a scourge upon the media landscape. While it’s certainly not a new phenomenon, the partisan divide in modern day America is certainly ramping it up to obnoxious levels. Satire based publications such as The Onion write fake news in a more or less obvious attempt at social commentary (“The play’s the thing / Wherein I’ll catch the conscience of the King.” – Shakespeare, Hamlet). While certain elements of our society might be so out of touch with pop culture as to take Onion articles seriously (to humorous effect), deliberate misinformation is a whole other animal. Unlike satire, it is not about social commentary. It’s about misleading, manipulating through confirmation bias, and creating doubt.
Variously attributed to such purveyors of wisdom as Mark Twain and Winston Churchill (but most likely a paraphrase of Charles Spurgeon), there’s a truism that states,“A lie gets halfway around the world before the truth has a chance to get its pants on.” Similarly, there’s Brandolini’s Law, or the Bullshit Asymmetry Principle: “The amount of energy needed to refute bullshit is an order of magnitude bigger than to produce it.” If Isaac Newton had been studying fake news instead of physics, one can imagine he’d come up with a few rules like these. (If you’ve ever tried to debunk your ol’ Uncle Bob’s political memes on Facebook, you know what I mean.) Those who strive towards factual reporting and cleaning up misinformation necessarily limit themselves by maintaining standards to which the pushers of fake news do not hold themselves. This was less of a big deal when one could pretty easily tell the difference between reputable reporting and the sort of tabloid sensationalism that was most often found in the supermarket checkout next to the candy and gum display.
It was also less scary when people espoused conspiracy theories in private, but fake news is starting to have increasingly real-world effects. You’ve probably heard of “Pizzagate,” where an idea was hatched from a few references to pizza in the Clinton emails released by Wikileaks, lovingly nursed in the trollish underbelly of the internet into a full-blown conspiracy concerning a pedophilia dungeon under a Washington, D.C. pizzeria, leading to a man with an actual gun firing among families on a Sunday afternoon, in a comical-if-it-weren’t-horrible attempt to free these (not real) child sex slaves from the basement of a building that had no basement. I applaud the man’s initiative as far as investigating the fake news he read on the internet, but I wish he’d just used critical thinking skills (perhaps someone else’s).
These days, with even the President-Elect tweeting links to fake news, anyone can become the object if the bait is juicy enough. What can you do if, one day, the fake news is about you? There may be some recourse under defamation law. In an interview with NPR’s Audie Cornish, Derigan Silver, a professor of media, First Amendment and Internet law at the University of Denver, had some tips.
While the First Amendment protects speech, especially unpopular or political speech, it doesn’t always follow that the public is going to recognize untrue speech as being untrue, nor will they necessarily do the proper research before sharing or re-tweeting. Fake news can harm the reputations of real people. People writing or spreading it can be held accountable for defamation, assuming those individuals can be tracked down. The right to free speech, just like any other right, comes with attendant responsibilities. As Silver stated in his interview, “The reason we have freedom of expression is not because truth will always win, but because without freedom of expression, truth has no chance of winning whatsoever.”
A defamation suit is possible; however, it may not be quite as satisfying as Benjamin Franklin’s “freedom of the cudgel,” which is worth an extensive quotation from one of my favorite Founders:
“My proposal then is, to leave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu. Thus, my fellow-citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, and puts his name to the charge, you may go to him as openly and break his head. If he conceals himself behind the printer, and you can nevertheless discover who he is, you may in like manner way-lay him in the night, attack him behind, and give him a good drubbing. Thus far goes my project as to private resentment and retribution. But if the public should ever happen to be affronted, as it ought to be, with the conduct of such writers, I would not advise proceeding immediately to these extremities; but that we should in moderation content ourselves with tarring and feathering, and tossing them in a blanket.
“If, however, it should be thought that this proposal of mine may disturb the public peace, I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation.”
If only, eh?