Cass Sunstein's No Good, Horrible, Very Bad Idea For Using Defamation To Fight 'Fake News'

from the dude,-no dept

Cass Sunstein is a famous legal scholar, who is probably most well known for his book “Nudge” about design decisions that governments can take to influence better behavior. The last time we wrote about him was back in 2014 when he decided to write a Bloomberg column attacking free speech, by saying that free speech hurts public civility and democratic self-government. Specifically, he was attacking one of the most important 1st Amendment cases the Supreme Court has ever heard, NY Times v. Sullivan, which cemented very important 1st Amendment protections in defamation cases — such as establishing the “actual malice” standard to make sure that defamation law was compatible with the 1st Amendment.

Well, apparently things haven’t changed that much in six years. Sunstein is back, again in the pages of Bloomberg, to again attack NYT v. Sullivan, and to make a very, very poorly argued case for using defamation law to combat “fake news.” Before we get into the problems of the article, let’s just note that focusing on “fake news” in general remains a really dangerous proposition. Remember, the term originally became super popular with Hillary Clinton supporters in the runup to the 2016 election, to highlight some completely made up stories in support of Donald Trump. Of course, after the election, Trump and the Trumpist community turned the “fake news” cry right around and made it a rallying cry for any accurate news reports they didn’t like.

So even Sunstein’s basic framing here, that we need to attack fake news with the law, should worry people. It’s handing a tool to people who will twist it and abuse it to stifle accurate reporting they don’t like.

Misinformation and fake news are now threatening public health and endangering democracy itself. What might help contain the problem? Part of the answer lies in a very old remedy: the law of defamation.

While much of his article talks about possible defamation cases from two voting technology firms, Dominion and Smartmatic, who might have legitimate defamation claims (though it’s hardly a slam dunk) against some of the people and media organizations presenting insane conspiracy theories about their technology, Sunstein’s embrace of defamation law is both confused and dangerous.

Sunstein discusses the “actual malice” standard in NYT v. Sullivan, and starts out by making the correct point that most people misunderstand “actual malice” to mean the dictionary definition, rather than the Supreme Court’s definition. In truth, “actual malice” has nothing to do with “malice” (actual or not). For something to be actual malice it needs to be a statement that the speaker knew was false, or “with reckless disregard of whether it was false or not.” Unfortunately, this part is often misunderstood as well. “Reckless disregard” also has a legal definition that does not match the dictionary definitions of those words. And while Sunstein was correct about the “actual malice” part meaning something different than people think it does, he gets the “reckless disregard” part wrong.

Unfortunately, that term is misleading. The court?s standard did not require ?malice? at all. New York Times v. Sullivan rules that a speaker can be held liable for defamation if (a) she knew that what she was saying was false or (b) she acted with ?reckless indifference? to the question of truth or falsity. Even if a speaker sincerely thinks she is telling the truth, she is unprotected if it should have been obvious that she wasn?t ? if, for example, all of the reliable evidence suggested she was speaking falsely.

So, that’s half right, but the closing part is misleading. The standard for “reckless disregard” is not whether or not “it should have been obvious.” The legal standard for “reckless disregard” is that the person making the statement had serious doubts as to the truth of the statement, but they made it anyway. That’s very different than what Sunstein says above. Indeed, he says the opposite — that if the person “sincerely thinks she is telling the truth” then it can meet the reckless disregard standard.

This is false. In fact, this is misinformation. In an article about combatting misinformation.

I won’t even get into his discussion of whether or not the two voting tech companies would be seen as public figures. But then Sunstein goes on to suggest a broad use of defamation cases to attack misinformation:

Beyond this specific situation, New York Times v. Sullivan can be used as a sword against the kind of misinformation that proliferates today. That?s deeply ironic, because the ruling was originally meant to provide a shield ? giving broad protection to journalists, broadcasters and speakers of all kinds on the theory that most false statements are relatively innocent. In the court?s apparent view, ?knowing falsehoods? ? lies ? would be pretty rare, and even recklessness would be unusual.

That was then, and this is now. For contemporary victims of misinformation, the New York Times decision can be deployed as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.

It has long been clear that in democracies that cherish freedom of speech, speakers need, and deserve, a shield. But it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.

This is… also just misinformation itself. I fully understand the concerns about misinformation and conspiracy theories — and the fact that they’ve received massive support from a wide group of people, up to and including the President of the United States. But most of it is protected by the 1st Amendment. And even as ridiculous and dangerous as some of the speech is it remains a good thing that it’s protected under the 1st Amendment.

Take the standard that Sunstein suggests here and just think about how it gets deployed by Trumpists. They readily declare the NY Times, CNN, the Washington Post and others of “fake news” all the time. The Trump campaign is still suing a bunch of news organizations, and Trump himself has talked repeatedly of “opening up libel laws.”

Some, likely including Sunstein, would argue that this is fine, and that courts and judges would protect against such abuses. But that completely misses both the point and the reality of how these lawsuits work. Defamation lawsuits are expensive. They involve a tremendous amount of work, and often tie up people and resources who could be working on other stuff. That’s why SLAPP suits are so damn common. And Sunstein is basically saying that we need more SLAPP suits because he can’t figure out a way to better educate people and get them to move away from believing in conspiracy theories. That’s not a good approach, and it’s not one that’s legitimate under the 1st Amendment.

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Comments on “Cass Sunstein's No Good, Horrible, Very Bad Idea For Using Defamation To Fight 'Fake News'”

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43 Comments
ECA (profile) says:

After all the BS has been removed.

You still have a field of cattle.

It has been very entertaining. Over the last few years a ndt he ‘Fake News’ Meme. Even when you have a tape of Trump saying something, and an article only repeating what he has said, they will declare its Fake news.
Then they watch FOX, and the Anchors, start out saying 1 thing, change it to another, and finally to another thats Closer to Some sort of fact.

I keep telling my 1/2 brother, to Look/read everything, because NO ONE is telling the truth, not all of it.
its a great idea to Claim ‘thats a piggy bank’, and it does look like one, and later to find while opening it up, ‘Its a bomb’, ‘its empty’, it has nothing about what it is, inside.
(sounds like passing laws in the USA, dont it)

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Mike says:

Of course he gives certain people a free pass

Misinformation and fake news are now threatening public health and endangering democracy itself.

Note that he doesn’t call out the public health officials who lied their asses off in March, claiming masks are worthless. And yes, they were lying. The goal was to avoid an uncomfortable request to sacrifice the average joe’s access to PPE so that emergency services could fully stock up.

As usual, all of this is punching down.

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Mike says:

Re: Re: Yeah, right

They had little information on whether masks helped stop the spread of COVID back then. They changed their minds when they had more info. That isn’t lying. That’s the scientific process.

Yeah, I’m going to call bullshit on that since we have over 100 years of documented process showing that wearing face masks reduces the risk of getting infected from airborne pathogens. COVID-19 is not the flu, but it’s enough like the flu that they knew that masks would reduce the risk. Even if it’s half as effective, that’s still better than 5-10% efficacious at best.

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Anonymous Coward says:

Defamation warning sign

Really anyone pushing for defamation law proliferation should be regarded as enough of a threat that it is reasonable to brandish a weapon ahead of time. The outcome of that game is already very well known – any dissent or incomvenient facts are now defamation. Your rivals actually campaigning against you is now illegal as "The tax money is not being spent efficiently." or "Those laws are dangerous to our freedom." is now criminal defamation.

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That One Guy (profile) says:

[Trump Liked That]

That was then, and this is now. For contemporary victims of misinformation, the New York Times decision can be deployed as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.

It has long been clear that in democracies that cherish freedom of speech, speakers need, and deserve, a shield. But it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.

I’m sure those who peddle claims about how the election was rigged, COVID isn’t a big deal, vaccines don’t work and presidents are never wrong(so long as they’re republican) would agree, that sort of dangerous fake news needs to be taken down for the good of the country.

They are either incredibly naive and unable to comprehend how insanely quick their idea would be weaponized or just fine with the immense collateral damage that would result, in either case to call their idea a terrible is an understatement in the ‘the sun is kinda warm’ level.

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Anonymous Coward says:

Re: Re: Because "Free Speech" Maz is only for public f

Keep making false claims, i’ll sue you for fake news.

But really, no one gives a fuck about your fantasy oppression. Try posting once, and stop posting ceaseless "spread over several comments" bullshit. It isn’t necessary. Everyone gets to see it, until we vote it down, then we can look or not if we want to.

If Masnick is hiding your shit, why doesn’t it stay hidden? Is there a secret Deep Techdirt fighting him from the inside?

Grow the hell up.

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Koby (profile) says:

Insert Lawyer Joke Here

Sunstein discusses the "actual malice" standard in NYT v. Sullivan, and starts out by making the correct point that most people misunderstand "actual malice" to mean the dictionary definition, rather than the Supreme Court’s definition. In truth, "actual malice" has nothing to do with "malice" (actual or not).

This is why people nowadays don’t like lawyers. The lawyers are inventing a completely different language, such that the court system is inaccessible. Laws used to be written and posted in public such that everyone could understand it. But now, lawyers can say one thing, but mean something else entirely, and that’s a problem.

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seedeevee (profile) says:

Its always Trumpists and Russians ruining all our good things – according to TechDirt – and the only problem with Dems is their solutions to those problems are not optimum outcomes.

As if four straight years of bogus anti-Russia hysteria by Democrats and their supporters wasn’t enough to burst your us vs them paranoia . . . . nahh, still got rubes to convince, I guess.

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Anonymous Coward says:

Your "history" of "fake news" is completely FAKE NEWS!

Remember, the term originally became super popular with Hillary Clinton supporters in the runup to the 2016 election, to highlight some completely made up stories in support of Donald Trump. Of course, after the election, Trump and the Trumpist community turned the "fake news" cry right around and made it a rallying cry for any accurate news reports they didn’t like.

Just exactly backward. You’re NOT honest. You’re not fair. It’s why since ’16 you’ve been losing readers, Maz.

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seedeevee (profile) says:

Re: Your "history" of "fake news" is completely FAKE NEWS!

I sure do remember plenty of Dem operatives claiming the 2016 DNC leak was fake news. Just like people around here were claiming the 2020 Hunter Biden news to be fake.

To be clear – there has always been plenty of fake news going around. Always. Part of communication has always been deception. Always.

Even the claim "This time its different" has been repeated forever.

Stephen T. Stone (profile) says:

Re: Re:

the 2020 Hunter Biden news to be fake

I haven’t seen any proof that says it’s real. The word of the guy who allegedly had the PC is not enough. Neither is the word of Rudy “I held a press conference between a cock and a charred place” Giuliani.

Also: I’d love to know how you feel about the pro-Trump domestic terrorism that took place at the Capitol today.

That One Guy (profile) says:

Re: Re: Re: Re:

That’s crazy talk that is, everyone knows white/Very Fine people don’t engage in domestic terrorism, they merely engage in entirely peaceful and patriotic demonstrations that the infernal liberal media tries to claim is domestic terrorism just because some people might have a problem with patriotically storming capitol buildings in an attempt to subvert and overthrow democracy.

Now if they’d been black

Another Person says:

Fake News vs "Evil"

Way back in the bad ol of the very early 2000’s, Bush kept citing people as being "Evil" (i.e: Sadam), but was never actually able to define ‘evil’ as its entirely subjective & relative to the individual using the term.

Now we’ve had Trump heavily using the term "Fake News", but again, he was never able to define it, as again it would appear to be a phrase which is entirely subjective & relative to the individual.
Note – i say its subjective, as lacking a clear definition one has to wonder if this includes satire?

Thus, as someone who isn’t in the US and sits back watching this spectacle play out – is there something about people in the Republican party where they make heavy use of nouns which lack an actual legalistic definition, while pushing for laws to be created due to the lack of definition?

Lawyer says:

RE: Definition of recklessness

Whilst I appreciate Sunstein’s views are not without their flaws, his understanding and definition of recklessness is entirely accurate. Recklessness in US law is the same as recklessness in English law, which under R v G involves both a subjective and objective elements.

Essentially, the question to be asked is whether a reasonable person in the same circumstances and with the same knowledge as the speaker would have thought they were telling the truth. Even if the speaker did not actually think they were lying, if a reasonable person in their position would have thought the statement was a lie, the speaker was reckless as to the truth of the statement.

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