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.