Author: Leslie Tenzer

Professor of Law, Elisabeth Haub School of Law at Pace University

Destroying Defamation

The explosion of Fake News spread among social media sites is destroying a plaintiff’s ability to succeed in a defamation action. The recent proliferation of rushed journalism, online conspiracy theories, and the belief that most stories are, in fact, “Fake News” have created a desert of veracity. Widespread public skepticism about even the most mainstream social media reporting means plaintiffs need help convincing jurors that third parties believed any reported statement to be true. Such proof is necessary for a plaintiff to prove the elements of defamation.

Fake News Today

Fake News is any journalistic story that knowingly and intentionallyincludes untrue factual statements. Today, many speak of Fake News as a noun. There is no shortage of examples of Fake News and its impact.

      • Pizzagate: During the 2016 Presidential Election, Edgar Madison Welch, 28, read a story on (then) Facebook that Hilary Clinton was running a child trafficking ring out of the basement of a pizzeria. Welch, a self-described vigilante, shot open a locked door of the pizzeria with his AR-15.
      • A study by three MIT scholars found that false news stories spread faster on Twitter than true stories, with the former being 70% more likely to be retweeted than the latter.
      • During the defamation trial of Amber Heard and Johnny Depp, a considerable number of “Fake News” reports circulated across social media platforms, particularly TikTok, Twitter, and YouTube, attacking Ms. Heard at a disproportionality more significant rate than Mr. Depp.

 

What is Defamation?

To establish defamation, a plaintiff must show the defendant published a false assertion of fact that damages the plaintiff’s reputation. Hyperbolic language or other indications that a statement was not meant to be taken seriously are not actionable. Today’s understanding that everything on the Internet is susceptible to manipulation destroys defamation.

Because the factuality of a statement is a question of law, a plaintiff must first convince a judge that the offending statement is fact and not opinion. Courts often find that Internet and social media statements are hyperbole or opinion. If a plaintiff succeeds in persuading the judge, then the issue of whether the statement defamed the plaintiff heads to the jury. A jury faced with defamation must determine whether the statement of fact harmed the defendant’s reputation or livelihood to the extent that it caused the plaintiff to incur damages. The prevalence of Fake News creates another layer of difficulty for the Internet plaintiff, who must convince the jury that the statement was true.

Defamation’s Slow and Steady Erosion

Since the 1960s, the judiciary has limited plaintiffs’ ability to succeed in defamation claims. The decisions in Sullivan v. New York Times and Gertz increased the difficulty for public figures, and those with limited public figure status, to succeed by requiring them to prove actual malice against a defendant, a standard higher than the mere negligence standard allowed for individuals who are not of community interest.

The rise of Internet use, mainly social media, presents plaintiffs with yet another hurdle. Plaintiffs can only succeed if the challenged statement is fact, not opinion. However, judges find that statements made on the Internet are opinions and not points. The combined effect of Supreme Court limitations on proof and the increased belief that social media posts are mostly opinions has limited the plaintiff’s ability to succeed in a defamation claim.

Destroying Defamation

If the Supreme Court and social media have eroded defamation, Fake News has destroyed it. Today, convincing a jury that a false statement purporting to be fact has defamed a plaintiff is difficult given the dual issues of society’s objective mistrust of the media and the understanding that information on the Internet is generally opinion, not fact. Fake News sows confusion and makes it almost impossible for jurors to believe any statement has the credibility necessary to cause harm.

To be clear, in some instances, fake News is so intolerable that a jury will find for the plaintiffs. A Connecticut jury found conspiracy theorist Alex Jones liable for defamation based on his assertion that the government had faked the Sandy Hook shootings.

But often, plaintiffs are unsuccessful where the challenged language is conflated with untruths. Fox News successfully defended itself against a lawsuit claiming that it had aired false and deceptive content about the coronavirus, even though its reporting was, in fact, untrue.

Similarly, a federal judge dismissed a defamation case against Fox News for Tucker Carlson’s report that the plaintiff had extorted then-President Donald Trump. In reaching its conclusion, the judge observed that Carlson’s comments were rhetorical hyperbole and that the reasonable viewer “‘arrive[s] with the appropriate amount of skepticism.”‘ Reports of media success in defending against defamation claims further fuel media mistrust.

The current polarization caused by identity politics is furthering the tendency for Americans to mistrust the media. Sarah Palin announced that the goal of her recent defamation case against The New York Times was to reveal that the “lamestream media” publishes “fake news.”

If jurors believe that no reasonable person could credit a challenged statement as accurate, they cannot find that the statement the plaintiff asserts is defamatory caused harm. An essential element of defamation is that the defendant’s remarks damaged the plaintiff’s reputation. The large number of people who believe News is fake, the media’s rush to publish, and external attacks on credible journalism have created a problematization of truth among members of society. The potential for defamatory harm is minimal when every news story is questionable. Ultimately, the presence of Fake News is a blight on the tort of defamation and, like the credibility of present-day news organizations, will erode it to the point of irrelevance.

Is there any hope for a world without Fake News?

 

States are ready to challenge Section 230

On January 8, 2021, Twitter permanently suspended @realDonaldTrump.  The decision followed an initial warning to the then-president and conformed to its published standards as defined in its public interest framework.   The day before, Meta (then Facebook) restricted President Trump’s ability to post content on Facebook or Instagram.   Both companies cited President Trump’s posts praising those who violently stormed the U.S. Capitol on January 6, 2021 in support of their decisions.

Members of the Texas and Florida legislatures, together with their governors, were seemingly enraged that these sites would silence President Trump’s voice.  In response, each immediately passed laws aiming to limit the scope of social media sites.   Although substantively different, the Texas and Florida laws are theoretically the same; they both seek to punish social media sites that regulate forms of conservative content that they argue liberal social media sites silence, regardless of whether the posted content violates the site’s published standards.

Shortly after each law’s adoption, two tech advocacy groups, NetChoice and Computer and Communication Industry Association, filed suits in federal district courts challenging the laws as violative of the First Amendment.  Each case has made its way through the federal courts on procedural grounds; the Eleventh Circuit upheld a lower court preliminary injunction prohibiting Florida from enforcing the statute until the case is decided on its merits.   In contrast, the Fifth Circuit overruled a lower court preliminary injunction.  Texas appealed the Fifth Circuit ruling to the Supreme Court of the United States, which, by a vote of 5-4, voted to reinstate the injunction.  The Supreme Court’s decision made clear that these cases are headed to the Supreme Court on the merits.

Is There Such a Thing as Off-Campus Anymore?

The Supreme Court will soon decide Mahanoy Area School District v. B.L., which raises the issue of whether the First Amendment prohibits public school officials from regulating off-campus student speech.   The issue arose from an incident involving Brandi Levy (B.L.), who, after learning she had not made her school’s Varsity Cheerleading squad, posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.”  She made the post on a weekend while hanging out at a local convenience store.
Levy thought the post would disappear after 24 hours, and only about 250 people saw the post during that time. But one person took a screenshot of the post and showed it to the school’s cheerleading coaches.  The coaches decided Levy’s snap violated team and school rules, which Levy had acknowledged before joining the team, and she was suspended from the school’s junior varsity cheerleading team for a year.Levy and her parents sued the school under 42 U.S.C. § 1983, arguing that the school’s suspension violated her First Amendment right to free speech and that the school disciplinary rules were overly broad. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.   On January 8, 2021, the Supreme Court took certiorari.  It heard the case on April 28, 2021.The case presents the first post-Internet decision concerning regulated school speech.  The last time the Court heard a case concerning the regulation of speech on school property was in 1969 when in Tinker v. Des Moines Independent Community School District, the Court ruled that students’ First Amendment Rights do not end when they enter the school-house door.  In that case, the Court overruled a high school policy that prohibited students from wearing armbands on campus in protest of the Vietnam War.  According to the Tinker Court, schools cannot regulate student speech unless there is a material and substantial disruption to the school or student body.When framed in the context of Tinker, Mahanoy School District seems a pretty straightforward case for the court to decide.  The question under Tinker becomes whether Levy’s Snapchat posed a substantial disruption to the school.  And quite frankly, although disrespectful, the post was not disruptive.The issue, however, is much bigger!

The Internet has given rise to considerable cyberbullying among students.  Quite often the bullying occurs off-campus but is targeted at fellow students or administrators.  The Third Circuit has previously considered and found in favor of free speech in two instances where students bullied school principals.  Lisa S. Blatt, the attorney for the School Board, summed it up best during oral arguments; “When it comes to the Internet,” Blatt argued, “things like time and geography are meaningless.”   Levy’s case presents the Court with the thorny issue of where the school steps start in our current virtual world.

Levy posted her Snapchat in 2017.  At that time, schools were grappling with how to handle off-campus cyberbullying between classmates.  Many authorities agree that under the Tinker standard, school officials can intervene if the off-campus speech has created or could create a substantial disruption or interference at school.  Students have a right to feel secure on campus, and therefore a school has the power to discipline off-campus speech, even at the expense of a student’s right to free speech.  Courts have applied this holding in a way that was favorable to the school to instances involving Internet chatter.  In Rosario v. Clark County School Dist., a 2013 District Court upheld a school administration’s decision to discipline and punish a student for tweets a minor made while at a restaurant about a basketball coach who dismissed him from the team.  In Kowalski v. Berkeley Cnty. Schs.,  the Fourth Circuit ruled that a school did not violate a student’s free speech rights by suspending her for creating and posting to a webpage that ridiculed fellow students.

On the other hand, in instances where students could prove in court that their off-campus social media did not substantially disrupt the school the student has prevailed.  Consider, for example, Layshock v. Hermitage School Dist., in which the full Third Circuit ruled that the school infringed on a student’s First Amendment rights by suspending him for posting an online parody of the principle.  The Court ruled the same way on almost the same set of facts in J.S. v. Blue Mountain School Dist. But to date, among Federal Circuit Courts, only the Third Circuit has sided with the school in instances of off-campus online speech. And even those cases suggest that there are instances where a school can appropriately infringe on a student’s First Amendment Rights.  In response to J.S. and Layshock, Judge Kent Jordan of the Third Circuit stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applied to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”

The Supreme Court could easily punt in this case; decide whether Levy’s Snapchat disrupted on-campus activities and leave it at that.  But in this instance, the Court should not miss the opportunity to discuss the more significant issue of what rules should apply given the very real issue of blurred school boundaries.  Especially since these boundaries have become even more blurred with the Pandemic.  Living rooms and bedrooms across the country have become virtual classrooms.  It seems impossible to suggest in today’s wired world that, as attorney Blatt suggests, there are any geographical boundaries to school. Prohibiting schools from regulating speech outside brick-and-mortar school buildings provides schools with the opportunity to prevent the severest of cyberbullying.   On the other hand, expanding a schools’ reach threatens the very foundation of our constitution.

The Supreme Court decided Tinker well before the Internet was integral to our homes. Mahanoy Area School Dist. v. B.L., offers the Court the opportunity to provide much-needed guidance to school administrators who walk a tight balance between respecting First Amendment Rights and protecting the right of their students to learn in a conducive educational environment.  Defining that guidance is the difficult part and with three new members of SCOTUS,  it is hard to decide which way they may rule.

How do you think the Court should rule and what would your ruling be if you were a Supreme Court Justice?

 

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