“Fake news” is a term that has been around for centuries, but the it became especially popular when President Donald Trump used it to attack news networks like CNN and the New York Times. His recent use of the term has brought the term and the broader question of information sources into public debate, although the term has many meanings.
Andrew P. Bridges of Fenwick & West LLP thinks that the use of the term “fake news,” as opposed to references to “lies”, relies on the word “news” as part of Trump’s effort to discredit and weaken major news organizations.
“News organizations have long acted as exposers of matters that governments want to hide and as counterweights to the enormous power of the organs of government. Their power to embarrass political leaders is unacceptable to the same degree that those political leaders demonstrate authoritarian tendencies,” Bridges explained in a recent interview with Inside Counsel.
Trump has used the phrase to carry out four strategies, according to Bridges. First, he has animated his populist base to discount the most powerful corrective of political abuses in favor of an impression-based politics of reaction. He has publicly accused the mainstream media of being his political opposition while ignoring the support that the mainstream media gave him. Second, by blasting news organizations over fake news he has diverted attention from the fact that his political rise rested upon a pattern of lies.
Third, he has promoted a lack of confidence in news organizations that enhances the power of his direct-to-voter communications on Twitter. And fourth, he and others have promoted a false equivalence between objectivity by suggesting that objectivity requires taking no position on controversial topics.
Bridges categorized sources of information that people have called fake news into eight groups, including: sources of independent reporting that aspire or claim to be objective, sources of commentary and opinion, those who repackage journalism of others with their own rhetorical amplification, propaganda, fake news sites.
The problem with fake news has grown for many reasons. “The Internet has empowered anyone who wants to become a publisher and to develop an audience. Barriers to entry are extremely low, with no capital investment, previous reputation, reporting or editing resources, or advertising necessary,” he explained. “That has led to a profusion of information sources that compete for the public’s attention. That competition has led to attention-getting activities such as teasing labels or headlines, provocative statements or images.”
Today, Internet advertising models favor material that attracts attention. The models also provide a business model for those who curate material that comes from other sources. In addition, social dynamics have fed a competitive appetite for attention and confirmation by one’s social circle through likes, shares, retweets, or favorites -leading people to post items that will attract attention of, and appeal to their social circle.
“Traditional news media have occasionally committed errors in reporting and editing that have undermined trust. These errors have provided fuel to those who want to attack freedom of the press generally or elements of the press…,” he explained. “Mistakes happen, and reputable news sources investigate and disclose their own mistakes and invite public criticism of their work. Members of the press, and media institutions, are intensely competitive, and they often hold each other to account for lapses and errors.”
Some politicians, broadcasters and publishers, attack specific news sources in a political effort to undermine their influence, according to Bridges. Some of them cast their attacks as on the mainstream media when they are using some mainstream media to attack other media outlets. Some politicians promote an environment where citizens do not trust any sources of information and where citizens believe that knowledge is nothing but a position or a political construct.
Publishers and online service users in the U.S. have protections against lawsuits, according to Bridges. First, they both have protections under the First Amendment, particularly against suits brought by public figures. The First Amendment forbids prior restraints, and case law under it sets a high standard of proof to obtain damages in many cases.
Second, providers or users of interactive computer services have immunity from most types of claims, especially including defamation claims. Third, many jurisdictions have anti-SLAPP laws that require a plaintiff to make a showing of probable success at the beginning of a case, providing for appeal of denials of motions to strike under anti-SLAPP provisions.
To protect speech, the First Amendment protects even false speech by both people and organizations, so that close calls do not lead to legal disputes and risks of punishment. But the First Amendment does not protect all false speech - laws relating to perjury, fraud, false advertising, trademark and copyright infringement, and threats can apply to types of false speech, but claims under those laws must meet several elements beyond mere false statements.
“It does not apply to non-governmental enforcement, so actions by private persons to limit speech – private censorship such as by online platforms -- may lawfully occur,” he said. “It is when the government attempts to suppress expression – including through judicial action in cases brought by private parties -- that the First Amendment kicks in.”
There should be consequences for significant lies, misrepresentations, and negligence, but in many cases the consequences should be reputational and not legal. Existing laws and legal frameworks provide a satisfactory way of targeting wrongful falsehoods.
He said, “It is abhorrent, however, for political figures to threaten reporters or news organizations with retribution for perceived slights or alleged falsehoods, as Donald Trump has done. Our Constitution and the rule of law demand that the press be fully free to report on matters of political and social importance, and threats to punish, or to revoke privileges for, adverse commentary.”
Use of courts to fight deception has always been an option. It would erode free-speech protections, and increase abuses by powerful and rich litigants, to alter the careful balance that courts have struck. Private parties may engage in moderation on their own facilities and platform if they desire – for whatever lawful reason they choose.
“They may believe that their brands are harmed by an association with certain types of behavior by their customers. In that respect, they are no different from a restaurant that may decide not to admit patrons who are drunk, who wear unsuitable clothing, or who disturb other patrons,” he said. “It all relates to the customer experience, business environment, nature and quality of service, and reputation they want to create, as well as to the types of customers they wish to attract.”
There is a reputational danger, however, when an online platform holds itself out as a guarantor of truth. It does not usually have an investigatory, fact-finding competence.
Online platforms usually should not be held legally responsible for policing matters that are not in their competence, such as allegations of defamation, copyright and trademark infringement, publicity violations, securities violations or other fraud.
The greatest challenge lies in the amount of information and communications that we all have exposure to. “Those who wish to mitigate the problem of lies on the Internet would do well to start by examining their own statements, posts, and retweets by applying critical faculties to information they receive and by supporting and strengthening the most reliable, knowledgeable, independent, and objective sources of news today,” said Bridges. “And friends don’t let friends spread ‘fake news.’”