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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, actual malice, cass sunstein, defamation, disinformation, fake news, free speech, misinformation, reckless disregard


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    ECA (profile), 6 Jan 2021 @ 11:47am

    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)

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      seedeevee (profile), 6 Jan 2021 @ 1:35pm

      Re: After all the BS has been removed.

      Very very few people take the time understand a whole story and will rely on untrustworthy "trusted sources" to explain things to them.

      So, yes, no one is telling the truth because (almost) no one will tell you the whole story.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2021 @ 11:55am

    Anytime someone says "We should do x to get around y to accomplish z" it's usually a bad idea.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Mike, 6 Jan 2021 @ 12:04pm

    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.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      seedeevee (profile), 6 Jan 2021 @ 1:36pm

      Re: Of course he gives certain people a free pass

      "punching down" is perfect.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 6 Jan 2021 @ 3:10pm

      he doesn't call out the public health officials who lied their asses off in March, claiming masks are worthless

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2021 @ 1:57am

        Re:

        The thing with the masks is that they are good to prevent spreading the virus from the weare, but not so good at stopping it infecting the wearer.

        reply to this | link to this | view in chronology ]

      • identicon
        Mike, 7 Jan 2021 @ 4:39am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2021 @ 12:07pm

    He fails to explain how you take a sitting US president to court, especially when that president is a major and continuous source of misinformation. Expect the volume to go up to 12 with the Georgia Senate results.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      seedeevee (profile), 6 Jan 2021 @ 1:38pm

      Re:

      Sitting US Presidents have been taken to court at least since Bill Clinton. I don't think that process needs to be explained. It can be repeated.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2021 @ 12:35pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Jan 2021 @ 12:39pm

    [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.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Jan 2021 @ 1:12pm

    innocuous leader line...

    Because apparently back to lockdown okaying each comment...

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Jan 2021 @ 1:18pm

    Because "Free Speech" Maz is only for public front.

    Can't stand dissent.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 Jan 2021 @ 1:27pm

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

      And if I persist, get all the text in! It's not "filters"...

      Prior topic NO problem, just one click.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 6 Jan 2021 @ 1:27pm

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

        And had such a good screen name: For sale: Second-***p Sexbot

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 Jan 2021 @ 1:30pm

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

      But guess "Free Speech" Maz prefers to see my little bits of on-topic civil remarks spread over several comments, plus informing anyone new that there's censoring out of sight.

      And he used to advise others not to play "whack-a-mole"!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2021 @ 2:07pm

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

        Your comment is way off topic, being full of fake news, rather than being about fake news.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2021 @ 2:39pm

        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.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Jan 2021 @ 1:19pm

    your usual arrogant lecturing of an actual "legal scholar"

    Just one item among many you left out: JURY OPINION, NOT JUDGES.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2021 @ 4:42pm

      Re:

      There once was an out of the blue
      Who hated the process of due
      Each scholar he'd paid
      Was DMCAed
      And shoved up his ass with a screw

      reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 6 Jan 2021 @ 1:22pm

    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.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Jan 2021 @ 1:25pm

    A jury won't use the extreme legalistic definitions you do.

    Surely that's one reason why YOU didn't want to defend your insane attack on A yyadurai in front of a jury of his peers, not your legalistic tribe.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 Jan 2021 @ 1:26pm

      Re: A jury won't use the extreme legalistic definitions you do.

      Now, this is your usual arrogant lecturing of an actual "legal scholar", and it's to be appreciated as entertainment, that's all. Certainly no one should regard YOUR advice as reliable. I give you two hoots.

      reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 6 Jan 2021 @ 4:39pm

      Re: A jury won't use the extreme legalistic definitions you do.

      They usually weed out the idiots before placing them in a jury, so Ayyadurai would never had a jury of his peers anyway.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 6 Jan 2021 @ 6:05pm

      Re: A jury won't use the extreme legalistic definitions you do.

      [Asserts facts not in evidence]

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    seedeevee (profile), 6 Jan 2021 @ 1:28pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2021 @ 2:43pm

      Re:

      It's only a problem with Dems when they are in power, or saying stupid things whether they have the power or not. But do go on with your ridiculous narrative, you're as bad a liar as all of them.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2021 @ 2:03am

      Re:

      Personally, I think that Trump is doing a great job on causing chaos and destroying democracy in the USA. I bet Putin is thinking that that was the best investment he ever made!

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Jan 2021 @ 1:31pm

    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.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      seedeevee (profile), 6 Jan 2021 @ 1:48pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 6 Jan 2021 @ 3:14pm

        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.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 6 Jan 2021 @ 4:02pm

          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...

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 6 Jan 2021 @ 5:08pm

            Now if they'd been black...

            …there would’ve already been thousands of arrests, hundreds of injuries, and at least a couple dozen deaths at the hands of state and federal law enforcement.

            reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 6 Jan 2021 @ 6:05pm

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

        2016 DNC leak

        [Asserts facts not in evidence]

        reply to this | link to this | view in chronology ]

  • identicon
    Another Person, 7 Jan 2021 @ 12:44am

    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?

    reply to this | link to this | view in chronology ]

  • identicon
    Lawyer, 8 Jan 2021 @ 9:48pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Socialist Worker, 13 Jan 2021 @ 9:43pm

    When Trump or Clinton claim the election was stolen from them not much can be done about that. But when a Lawyer, former US Attorney Sidney Powell, made a claim about a voting machine company Dominion Systems being a party to voter fraud she found herself sued for defamation.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.