Discussion: New Lawsuit Reveals Challenges Of Taking ‘Fake News’ Peddlers To Court

It’s actually the other way around. If he says that something is his opinion, he’s protected. But as soon as he states that he did research and discovered something to be a fact (when he knows that to be false or just doesn’t care about whether it’s true) he is toast.

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You know, and this is just my opinion, if Soros really has hired as many people as the right, and right wing nutters claim wouldn’t that make him the largest employer in the US? Why are the true red blooded flag waving Congresscritters not investigating why there are no W-2s from Soros’ enterprises?

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There is no reason, in principle, why the common law cannot develop a tort to deal with the fabrication and dissemination and promulgation of false factual statements with the intention of weaponizing social media to destroy someone’s reputation or cause someone serious psychic distress or put them in personal danger. New media exist, and the law of torts has always developed along with changes in society and technology. Such a tort would belong in the family of wrongs that currently includes malicious falsehood and defamation.

That isn’t to cast doubt on the defamation case against Alex Jones. This seems pretty clear to me:

In one example, Infowars’ Alex Jones claimed in a video posted online that he “did research” and “confirmed” that Gilmore was a “high-level CIA” operative and “State Department insider with a long history of involvement in psy-ops.” Jones definitively stated that Gilmore helped orchestrate the chaos at Charlottesville and was paid $320,000 a year by Soros.

The primary publisher of such a statement should be held responsible, just as newspapers and book publishers are. There isn’t much to be done–at this point–about the retweeters or repeat publishers of the statement. And there is nothing to stop the courts from holding that the existence of social media–the existence of new, weaponized amplification media that the statement-maker seeks to exploit–is a highly aggravating factor in the calculation of damages. I would like to see a jury in this case order Jones and his primary publishers to pay exemplary damages in the $100 million dollar range.

It might be said that First Amendment rights are at issue here. They certainly are. But again, there is nothing to stop the common law from developing defenses against any new tort.

And by the way: there is no such thing as an “everybody is saying it” defense. On the contrary: defamation law famously provides that to even to say “I doubt that there is any truth in the rumor that X is [disgraceful conduct]” is effectively to publish the falsehood about X.

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I am glad that the Georgetown Law School’s Civil Rights Center has initiated this lawsuit. It may lay a foundation for attacking the Alex Jones’ of the world who dabble in fake conspiracies and falsehoods as a method to attract followers. In any event, it is a great opportunity to expose the lowlifes who publish this vile crap as part of their brand or business model. I am only sorry that plaintiff can’t request the Court to require the defendants to explicitly say that their “content” is fact free whenever they publish this shit.

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I read another article on this subject that the defendants had chosen to settle for money rather than have these cases taken to court so it seems to me that the grounds for litigation are legitimate and the only difference between this and past cases is that the plaintiff is refusing to settle. Furthermore if these right wing talkshow hosts know their accusations are going to release a horde of agitators upon protesters or other people who oppose the right wing views then it could easily be argued that their broadcasts are calculated to have a result that is Intimidating by causing danger and emotional stress to other persons.

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Agreed. At some point, this kind of behavior leaves the realm of expressing an opinion and becomes an act of intimidation designed to manipulate and silence others and should be subject to the body of law dealing with coercion. The question is how is it determined when and where that line is crossed.

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The extreme right wants to weaponize the First Amendment for its own purposes. Just as they believe the Second Amendment grants the unfettered right of Any Angry Asshole to buy whatever weapon he wants, whenever he wants, and for any reason he wants, so too do they believe the First Amendment should grant them – and only them – the right to spread whatever vile, putrid lies they want against whomever wanders into their demented and delusional crosshairs. But when they’re called on it, through words, logic or legal action, they go all victim snowflake.

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There is a bit of shouting FIRE in theater here. The question is, how close does it get.

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Any article that includes the line “according to Eugene Volokh, a First Amendment expert at the University of California at Los Angeles School of Law” is suspect.

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If Soros did not exist, these RW nuts would fictionalize someone like him – some dark and money figure – preferably Jewish – who is “behind” the flag-hating libruls who are stabbing our nation in the back and keeping it from greatness.
Propagandists know that they need a wizard pulling strings behind a curtain to be more effective.

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I’d love to see the “People are saying …” line replaced by a more honest and verifiable “I read 2 tweets …”. But at the base of any campaign against “fake news” is who determines what is fake? An attempt to impose “fine lines” is an invitation to frivolous lawsuits where any statement can be disputed, cost the speaker a lot of money, and end in “Oh, sorry, my bad.”

I especially frown on the idea that we should hold authors responsible for what those who respond to their work might say. That would pretty much end comment sections like this.

Of course any policing of content would not get at what I consider the main problem with the news I read, that the news is slanted by selecting what will be covered and how it will be covered, and stories that don’t support “the narrative” just never get written or published. So ANTIFA may threaten those attending a lecture, go into the hall and disrupt the proceedings, even sabotage the PA or spray unknown substances on the audience, but we just won’t report that, we’ll only report that a half-dozen “alt-right” people showed up and stood on the other side of the street “looking menacing”.

I miss the days when reporting was even-handed, provided context, put things in perspective, and was more fact than opinion; but I don’t see any way to legislate that.

Malkovich!

This is good. “I’ll fight to the death for your right to say it” should not extend to “I’ll fight for your right to incite the death of another.”

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The 1st Amendment is not an absolute right any more than the 2nd is. Extremes such as shouting fire in a crowded theater or buying a case of grenades are exemplars, not limits. The British have a better handle on this than we do I think: If you say something in public you can be required — not asked, required — to justifify its validity and, failing that, be found guilty of libel.* Wacky conspiracy theories get you nowhere except possibly referral to a mental health professional before sentencing.

But beyond that there is the level of discourse and standards of truth in debate necessary to maintain a democracy or, for that matter, a civilization. We are facing a tsunami of bullshit with concomitant doubts about what is true and fake news is only the tip of the iceberg; e.g.,

For all categories of information — politics, entertainment, business and so on — we found that false stories spread significantly farther, faster and more broadly than did true ones.

…despite concerns about the role of web robots in spreading false stories, we found that human behavior contributed more to the differential spread of truth and falsity than bots did. …

Some notion of truth is central to the proper functioning of nearly every realm of human endeavor. If we allow the world to be consumed by falsity, we are inviting catastrophe.

A modern technological and democratic society unwilling to accept empirical facts, logic, or science as essential arbiters of policy decision is not likely to stay technological for very long much less democratic. Extreme epistemic skepticism is an invitation to a chaos in which policy and law has no more meaning than the opinion of nearest person with sufficient power to execute it and that, IMHO, is the future we are facing unless fake news and its allies are attacked much more seriously and systematically.

ETA: *but see @midnight_rambler note below WRT British libel law (thanks)

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That’s not how defamation works though. You don’t have to know that it’s a lie, only promote it with malice and reckless disregard for the truth, which seems pretty evident in Jones’ case. And that’s only for public figures, Gilmore can presumably use the lower standard for non-public people.

Expanding culpability to followers is more difficult, but IMO shutting down the sources is more important.

@tindalos: the problem with British libel laws is that truth is not an absolute defense there. You can sue someone for publishing defamatory information (i.e. something unsavory you don’t want out there) even if it’s true. That’s partly how people like Jimmy Saville got away for so long even though “everybody knew” about him.

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No W-2s, because all liberals are undocumented immigrants, and Soros pays them in cash.

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And one key to dealing with this crap lies in the truth stated above. As I understand it, for an alleged “news outlet” to be held liable for their slanders, one must show malicious intent. It is clearly obvious that the hucksters of this vomit they call news are intending to smear people that they do not like so as to make money. That sure sounds like "malicious intent " to me.

I wonder if maybe a judge would be much more open to awarding substantial non-economic damages in a defamation case like this. Georgetown Law’s Civil Rights Center might be able to show both that the subjects of Jones’ diatribes are often subjected to harassment, threats, etc., and that Jones is aware that this often happens.

What Jones is doing is a pretty good fit for reckless endangerment, but it would be tough to meet the criminal standards of guilt (initially, at least – I think a case could be built up over time by a determined organization), especially with many of the threats and implied threats delivered over the internet.

And the RWNJ think that they would like these jobs that “illegals” are taking from them, hmm.

Yeah, it might be hard to go after the followers themselves, since you’d be asking to find them liable for being stupid enough to think Jones is a reliable source, but it doesn’t seem like it would be hard to show that Jones - acting maliciously and recklessly - knew that people would believe him and act accordingly, and therefore should be punished more harshly.

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