Even mature democracies struggle with the issue of fake news. On January 1, 2018, Germany announced that it would begin to enforce a law, known as NetzDG, requiring social media sites to remove hate speech and fake news within 24 hours or face fines of up to 50 million Euros. In March 2018, the European Commission’s High Level Group on fake news and online disinformation issued a report concluding that although disinformation may not necessarily be illegal, it nevertheless is harmful to democratic values. Although ostensibly eschewing “any form of censorship, either public or private,” it advocates greater self-regulation in the short term, with a long-range goal of developing a Code of Practices to encourage transparency, media literacy, diversity, the development of tools to “tackle” disinformation, and further research to monitor and assess the sources and impact of fake news. On the other hand, also in March, the Dutch Parliament voted to repudiate EUvsDisinfo.eu, a European Union website created by the East Stratcom Task Force in 2015 to report disinformation and fake news allegedly spread by Russian actors. Its Dutch opponents characterize it as a state publication that “passes judgments whether a publication in the free media contains the correct views or not. If your publication ends up in its database, you’re officially labeled by the EU as a publisher or disinformation and fake news.”
These examples illustrate how problematic it can be when governmental entities become arbiters of what is true and what is fake. As the Dutch critics argued, governments should be loath to interfere in freedom of the press because “it makes it impossible for the truth to emerge in the public debate.” This thinking was at the core of the seminal 1964 U.S. Supreme Court decision, New York Times v. Sullivan.
Constitutionalizing the Right to Be Wrong
The Sullivan case arose during the civil rights movement, involving a Montgomery, Alabama, public safety commissioner named L.B. Sullivan, who sued the New York Times after it published a fundraising advertorial that described law enforcement actions designed to discourage protests by activists such as Martin Luther King Jr. and his followers. Sullivan claimed that the ad, which made several factually inaccurate allegations about the Montgomery police, had defamed him personally, even though he was not identified by name or title.
In other words, Sullivan claimed the publication was fake news. He sought and won $500,000 in damages, without being required under Alabama law to prove that his reputation was actually harmed. But in a decision by Justice William Brennan, the high court reversed, concluding that under the First and Fourteenth Amendments, public officials like Sullivan could prevail in a libel suit only if they were also able to show not only falsity, but actual malice on the part of the publisher. This term of art is defined as knowledge that the statement was false, or proof that the publisher acted with reckless disregard for the truth. A showing of hatred or ill will, known as common law malice, is not sufficient to meet that test.
According to Justice Brennan, because some factual errors are inevitable even in the most careful news reporting, this protection is essential to avoid media self-censorship, to promote vigorous reporting on government and public officials, and to preserve our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”
In subsequent years, the First Amendment protection expanded to include lawsuits by public figures as well as government officials. Alleging falsity was not enough. No doubt this situation is what prompted Donald Trump, first as a candidate and then as president, to float the idea that the law should be changed.
“Open Up the Libel Laws”
At a rally in Fort Worth, Texas, in February 2016, Trump vowed, “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. We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got[ten] sued before.” In March 2017, he claimed in a tweet that “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?” And in October, he complained that it is “frankly disgusting the press is able to write whatever it wants to write.” He raised the issue again in January 2018, contending that “Our current libel laws are a sham and a disgrace and do not represent American values.”
Many would argue that existing libel laws are quintessentially American. Their sweeping protection of good faith errors, even when they harm a reputation, exceeds that of every other common law country, including Canada and the United Kingdom. This is why, in 2010, Congress passed the SPEECH Act, making foreign libel judgments unenforceable in the United States unless the legal standards in the other country offer at least as much protection to the defendant as the First Amendment. The statute was enacted to curtail libel tourism, where foreign nationals sue U.S. defendants in other nations’ courts where the standards of proof are less demanding.
Perhaps these less demanding standards might be precisely what Trump seeks to establish. In a meeting with the Washington Post’s editorial board in March 2016, Trump, after complaining about the “enormous” and “incredible hatred” demonstrated by the media, was asked what new standard he would propose, and he replied, “I want to make it more fair from the side where I am, because things are said about me that are so egregious and so wrong, and right now according to the libel laws I can do almost nothing about it.”
As frustrating as that might be for Trump, it is exactly Justice Brennan’s point. As a commentator in The Federalist observed, freedom of the press is “too important to allow public figures . . . to use the courts to silence the publications of things they didn’t like or that made them look bad.” This brings us to the heart of the matter: Is Trump really bothered by falsehoods or by truthful reports that make him “look bad”? Libel law in the United States is, as then-10th Circuit Judge Neil Gorsuch wrote in Bustos v. A&E Television Networks, “not about compensating for damage done to a false reputation by the publication of hidden facts. It’s about protecting a good reputation honestly earned.” Libel suits are intended to provide compensation to those whose reputations have been harmed as a result of false statements made with actual malice. By design, that is a very difficult standard to meet.
Focus on Truth, Not Fault
Trump’s musings remind me of proposals to reform libel law considered in the late 1980s and early 1990s. Driven by concerns about escalating punitive damages awards, and inspired by a 1987 study by University of Iowa professors concluding that most libel plaintiffs sue to vindicate their reputations, not for the money—a sentiment Trump echoed at his 2016 Texas rally, where he claimed “I’m not taking their [the media defendants’] money”—several prominent scholars, judges, and free press advocates argued for new approaches to libel law that would focus on truth or falsity, not fault.
In 1988, in a Harvard Law Review article, Judge Pierre N. Leval, then of the Southern District of New York, advocated creation of what he called the “no-money, no-fault” libel suit. Under Leval’s system, plaintiffs could sue to obtain a declaratory judgment of falsity. The fault requirements of Sullivan and its progeny would not apply, because, Leval claimed, “the sole purpose” of the Sullivan standard was to protect the press from crippling monetary awards. He also argued that these “no-money, no-fault” trials would be simpler, more efficient, less expensive, and would protect the media from inquiries into their news-gathering practices. They would provide plaintiffs with a far greater chance of vindicating their reputations, which is really what most of them want, he wrote.
Also in 1988, the Libel Reform Project at Northwestern University issued “the Annenberg Proposal.” Under the Annenberg model, a libel “victim” would have to request a retraction or opportunity to reply within 30 days of publication. If the defendant complied, any further legal action would be barred. If not, either the plaintiff or the defendant could compel any libel suit to be converted into a “no-fault, no-damages” declaratory judgment proceeding, where the only issue would be truth or falsity. A traditional suit for actual damages would remain an option, but only if the defendant agreed to it.
Neither of these proposals was adopted at the state level. However, in 1993, the Uniform Law Commission promulgated the Uniform Correction or Clarification of Defamation Act (UCCDA) making a correction/clarification request a prerequisite to a libel suit. Under the Uniform Act, if, after a correction or clarification was published, the case still went to trial, a prevailing plaintiff could recover only economic losses, not punitive damages. As of 2018, only North Dakota, Texas, and Washington had adopted the UCCDA.
Libel Reform Redux
Of course, President Trump cannot unilaterally “open up the libel laws” by executive fiat. Libel law consists of state, not federal, statutes, or judge-made constitutional or common law. But assuming Trump could persuade some state legislatures to adopt a version of the Annenberg or Leval proposals, would he be satisfied with a retraction or a declaratory judgment of falsity? Would he fit the Iowa study profile of the libel plaintiff who is seeking only vindication, not money?
I’m skeptical. Most media organizations have, of their own volition, corrected their mistakes in their coverage of Trump and his administration, such as when Time’s White House correspondent erroneously reported in January 2017 that the bust of Martin Luther King Jr. had been removed from the Oval Office. Yet, despite rapid and repeated digital corrections, Trump nevertheless condemned the story as “deliberately false reporting,” including it in the “Fake News Awards” list published in 2018. He didn’t seem appeased by corrections or apologies.
Perhaps Trump would prefer some version of the “no-money, no-fault” trial. Although proof of actual malice would be off the table in a “truth trial,” the reality is that even then, “[i]t is the reporter’s accuracy, integrity, professional reputation and standing that are ultimately at stake,” as litigator Don Reuben argued in the ABA Journal in April 1989. He contended that the Annenberg proposal would “chill the hell out of the working press, the reporter and editor” by making it easier for plaintiffs to prevail in court. He feared that corporate media would be tempted to embrace the “no-fault, no damages” option, abandoning First Amendment defenses and sacrificing the reporter in the name of expediency. If that was true in 1989, it is even truer in 2018, when economic constraints encourage news organizations to reduce their financial exposure as much as possible. With its potential humiliation of the news organization and journalists as a bonus, the “no-money, no-fault” trial might be an option that Trump would relish.
All this begs the question of whether courts are the best entities to determine the official version of “the truth.” Supporters of the Leval or Annenberg proposals asserted that the government has a legitimate interest in the accuracy, or inaccuracy, of media reports. This view is shared by many government officials and institutions around the world. Numerous studies posit that fake news affected voter choices in the 2016 election, in the Brexit referendum, and other political campaigns, posing a fundamental threat to democratic institutions. Logically, governments would have a duty to protect audiences from fake news. Yet, both the executive and legislative branches might be perceived as self-interested if they tried to evaluate truth or falsity. The courts may be the best alternative.
But they would be the best of a bad lot. However independent they may be, courts are still instrumentalities of the government. As First Amendment scholar Zechariah Chafee wrote, “We must always be careful not to assume that the findings of a tribunal on a controversial issue are THE TRUTH.” The marketplace of ideas is imperfect but essential to facilitate the search for truth. Government can control and manipulate the flow of information about itself and its actors, so any determination of truth or falsity that fails to recognize the fundamental and coextensive right of the citizen to criticize without fear of sanctions or retribution—what Justice Brennan called “the central meaning of the First Amendment”—is flawed. A free and independent press, not a single leader or a government-run “Truth Tribunal,” is the best means to ensure an informed citizenry, and to hold institutions and individuals to account. And that’s not fake news.
Jane E. Kirtley is the Silha Professor of Media Ethics and Law at the Hubbard School of Journalism and Mass Communication at the University of Minnesota, where she directs the Silha Center for the Study of Media Ethics and Law and is an affiliated faculty member at the Law School. She was a Fulbright Scholar at the University of Latvia in 2016 and the executive director of the Reporters Committee for Freedom of the Press from 1985 to 1999.