Fake News, Public Figures, and Defamation – by Bart Binning, Ed.D. (1)
A study by Pew Research during the 4th quarter 2020, they found that roughly 2/3 of the US population “believe their political system needs major changes or needs to be completely reformed.”[i] It is suggested that at least part of the reason for this belief is that the country has been beset by what is euphemistically called Fake News, which can be defined as false or misleading news stories, often of a sensational nature, created to be widely shared or distributed for the purpose of generating revenue, damaging the reputation of a person or entity, or promoting or discrediting a public figure, political movement, company, etc.[ii] The proliferation of Fake News is such that, for many people, one’s evaluation of what is truthful is no longer based on the quality of the news source, but either on the likeability of the purveyor of the news, and/or the degree that the Fake News conforms to one’s self-image or one’s perception of society.
Some suggest that the way to combat Fake News is through the enhancement of Privacy Laws. However, privacy is one of those aspects of law that has been primarily the purview of the States, and is complicated by federal regulations on the financial and health industries.
Since much of Fake News is primarily transmitted through the Internet and social media, others have focused on the regulation of these technologies. However, because of oligopolies in social media, and the nature of the Internet, these efforts have also proved to be problematic.
As an alternative, it is suggested that we look at reverting to our pre-1960’s concept of defamation. Traditionally, defamation is a statement that injures a third party’s reputation. While primarily the purview of state laws, including both civil and criminal aspects. Tort of defamation includes both libel (written statements) and slander (spoken statements).
Under ordinary circumstances, defamation is covered by state laws. Before 1964 a statement was considered to be defamatory if, in the mind of any considerable and respectable segment of the community, it holds another person up to scorn, hatred, ridicule, disgrace, or contempt. There are certain types of statements that are automatically considered defamatory in some states. These types of statements when presented as a false statement of fact (not an opinion) include acquisitions that a person:
- has committed a serious, notorious, or immoral crime
- has an infectious or terrible disease, or
- is incompetent in his job, trade, or profession.
Intent also has traditionally played an important role in determining if a statement was defamation in nature. In most states a person can only be held liable for defamation if the person:
- knew that the statement was false and defamatory, or
- acted with reckless disregard of the truth or falsity of the statement in making the statement, or
- acted negligently in failing to ascertain whether the statement was true or false before making it.
So … if one looks at press coverage in the past few election cycles, the press has been reporting that various political candidates were incompetent in one way or another, or have committed various immoral crimes. Yet if these acquisitions were false, they were often not corrected; news organizations very rarely retract the statements. Why???
In 1964, SCOTUS issued a decision, New York Times vs Sullivan, that required actual malice to be shown if the person being harmed was a “public figure” thereby establishing a two-tier standard. Since almost every politician, high level government official, or head of a major corporation can be classified as a public figure, it has proved exceedingly difficult for politicians to redress grievances when accused falsely of Impropriety.
In the Sullivan v New York Times decision, when a Public Person was charged with defamation, the additional requirement of “actual malice”- defined as knowledge that statements are false or in reckless disregard of the truth” was added to substantiate the charge of defamation. While the initial decision provided no definition of “Public Person”, it is come to mean a person, such as a politician, celebrity, social media personality, or business leader, who has a certain social position within a certain scope and a significant influence and so is often widely of concern to the public, can benefit enormously from society, and is closely related to public interests in society.[iii] [iv]
In March, 2021, D.C. Circuit Senior Judge Laurence Silberman issued an extraordinary descent.[v] by attacking partisan bias in the news media, lamenting the treatment of conservatives in American society and calling for the Supreme Court to overturn a landmark legal precedent that protects news outlets from lawsuits over reports about public figures. Silberman’s descent amounted to a frontal assault on the 1964 Supreme Court decision that set the framework for modern defamation law[vi] — New York Times v. Sullivan.[vii]
In the 1964 SCOTUS decision adding Malice to the requirements to prove Definition of a Public Person, their reasoning was based on First Amendment, stating that it enshrines “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Further stating that the actual malice standard reflects the cornerstone First Amendment principle that “speech relating to public officials and public figures, as distinct from private persons, enjoys greater protection.” The court further stated in in Jankovic v. International Crisis Group, that a plaintiff must prove by “clear and convincing evidence” that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not” as was said[viii]
- beyond a reasonable doubt (no other reasonable explanation, often used in criminal trials)
- clear and convincing evidence (convinced that there is a high probability that the contention is true, used in both civil and criminal trials)
- preponderance of the evidence (greater than 50% chance that the contention is true, the typical burden of proof in a civil trial)
- probable cause (a requirement found in the 4th Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant)
- reasonable belief
It is suggested that an unintended consequence of the Sullivan v New York Times decision was that with the new requirements in requiring that there be clear and convincing evidence of Malice to receive damages for definition by Public Officials, there evolved a practice by news organizations to not verify whether the statements they report are factual but may be false be false. In other words, many News Organizations feel that they no longer have a duty to report the facts.
To address this lack of truth issue, it is suggested that we reestablish the requirement for all to tell the truth, in the same way that non-public persons are currently required to tell the truth or be subject to damages of defamation. Additionally, the legal standard to satisfy the burden of proof should be preponderance of the evidence, rather than the higher clear and convincing evidence. And that this burden of proof can only be used by a professional news reporter or organization be certified through a Professionally Accredited News (Press) Organization.[x] Non-accredited news organizations be treated as non-public persons.
 Dr. Binning is not an attorney and does not have a law degree
[i] Wike, Richard, Laura Silver, Shannon Schumacher, and Aidan Connaughton. “Many in the U.S., Western Europe Say their Political System Needs Major Reform” Pew Research Center: Global Attitudes and Trends. March 31, 2021. https://www.pewresearch.org/global/2021/03/31/many-in-us-western-europe-say-their-political-system-needs-major-reform/?fbclid=IwAR3XCpYEzdgM4a4PmKttJj6tlNIc5cgq5T8cuhCLUd_rcKGavplz8PsNI-8
[iii] Ferrari, Anne (2016-08-10). “Using Celebrities in Abnormal Psychology as Teaching Tools to Decrease Stigma and Increase Help Seeking”. Teaching of Psychology. 43 (4): 329–333. doi:10.1177/0098628316662765
[v] Christiana Tah and Randolph McClain v. Global Witness Publishing (19-7132), Consolidated with 19-7133. Appeals from the United States District Court for the District of Columbia. (No. 1:18-cv-02109) Argued September 14, 2020, Decided March 19, 2021. https://www.cadc.uscourts.gov/internet/opinions.nsf/C5F7840A6FFFCF648525869D004ECAC5/$file/19-7132-1890626.pdf
[vi] Gerstein, Josh. “Federal judge pens dissent slamming decades-old press protections” Politico. 3/19/2021. https://www.politico.com/news/2021/03/19/defamation-law-media-protection-477193?fbclid=IwAR0tn1C1beiHl23li36LuiPqHyJ8ry5oHiklmZ7pCYWWpVqvkXXPr5yfdDY
[vii] NEW YORK TIMES CO. v. SULLIVAN. Certiorari to the Supreme Court of Alabama. No. 39. Argued January 6, 1964.-Decided March 9, 1964. https://tile.loc.gov/storage-services/service/ll/usrep/usrep376/usrep376254/usrep376254.pdf
[viii] Jankovic v. International Crisis Group (Jankovic III), 822 F.3d 576, 584 (D.C. Cir. 2016) https://www.cadc.uscourts.gov/internet/opinions.nsf/7317B02719201D278525811B004E9376/$file/16-7033-1674406.pdf
[x] A Professionally Accredited Organization means they conducted a thorough self-assessment and compared themselves to recognized standards of best practice. Accreditation means that the organization, agency, or program was able to demonstrate evidence of implementation to all of the relevant standards. Standards typically include a statement that a duty of the profession is to protect the public, an enforceable code of ethics containing a standard of conduct, a specialized body of knowledge describing the profession, and a continuing education requirement.
“Help! What Are the Differences Between Accreditation, Licensing and Certification?” Council on Accreditation. 4/11/2017, Downloaded 4/1/2021 https://coanet.org/2017/04/help-what-are-the-differences-between-accreditation-licensing-and-certification/