Judge Tosses Former 'Disinformation' Chief's Defamation Suit, Says She Really Was a Censor

Nina Jankowicz finds out the truth may hurt, but it isn’t lawsuit bait.

Imagine you're a prominent "disinformation expert" once hired to head a government board to fight alleged untruths but unceremoniously dumped from the position when the board was dissolved amidst public outcry. Smeared oh so cruelly as the would-be chief censor of a government body tasked with policing people's speech, you sue your critics for defamation to set the record straight. And then…the judge tosses out your case, saying you and your stillborn board really were created to engage in censorship, and descriptions to that effect are accurate.

Ouch, Nina Jankowicz. Ouch.

Sorry, Nina: Policing Speech for the Government Is Censorship

"Fox contends, and I agree, that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true," U.S. District Judge Colm F. Connolly wrote in his July 22 order to dismiss. "On the contrary, as noted above, censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications. The Disinformation Governance Board was formed precisely to examine citizens' speech and, in coordination with the private sector, identify 'misinformation,' 'disinformation," and 'malinformation.'"

"That objective is fairly characterized as a form of censorship," he concluded. As a result, he dismissed Jankowicz's claim "in its entirety."

The case, you may remember, involved the Biden administration's 2022 attempt to create a Disinformation Governance Board under the Department of Homeland Security that would scrutinize the seamy corners of the internet and your Facebook account in search of the three horsemen of naughty speech: misinformation (unintentional falsehoods), disinformation (deliberate falsehoods), and malinformation (inconveniently shared truths). And yes, the federal government does use these terms. The head was supposed to be Nina Jankowicz, who is frequently touted as a disinformation expert.

After pushback from civil liberties advocates, Republicans, and people who've read George Orwell's 1984, the board was unceremoniously terminated and Jankowicz had to seek employment elsewhere.

Disinformation, Misinformation, or Just in the Eye of the Beholder?

The problem is that while there's undoubtedly a huge amount of bullshit in circulation—including on the internet, which the board was supposed to police—the amount that is indisputably false is relatively small. Most arguments are about interpretations of facts and levels of confidence among people who can't be trusted as arbiters of truth even (and especially) if working on behalf of governments.

"All communication across all contexts – whether news, opinion journalism, science, misinformation studies, political debate, and so on – involves countless decisions about what information and context to include, what to exclude, how to present information, which narratives and explanatory frameworks to embed the information in, and so on," philosopher Dan Williams pointed out earlier this year. "Any attempt to divide this communication into a misleading bucket and a non-misleading bucket will inevitably be biased by pre-existing beliefs, interests, and allegiances."

Unfortunately, among the most prevalent sources of false information are governments, the very bodies that want to set themselves up as the arbiters of truth. They lie about abuses of power, about inconvenient facts that might cause disputes with other states, and about screw-ups embarrassing to those in office. Jankowicz herself repeatedly referred to Hunter Biden's abandoned laptop, which contained incriminating evidence of his conduct, as Russian disinformation (It has been confirmed as real). She's been quite the purveyor of disinfo herself, and walking, talking evidence of the danger in letting government create truth police.

Complaints That Foundered on the Rocks of Truth

Nevertheless, Jankowicz took umbrage at criticism of her role, particularly by staff at the deep-pocketed Fox News and filed a lawsuit against the network last year. Her complaint, as detailed in Judge Connolly's order to dismiss, specified "three categories of repeated false claims about Jankowicz." Fox hosts and guests, according to her lawsuit,

• "built a narrative calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech,"
• "said that Jankowicz was fired from DHS" even though "Jankowicz had resigned due to harassment arising from Fox's defamation," and
• "said that Jankowicz wanted to give verified Twitter users the power to edit others' tweets."

Inconveniently for Jankowicz (could it be malinformation?), Judge Connolly found that 36 of 37 specified criticisms were leveled at the board as a whole and not her. Further, many statements were expressions of opinion, which are not actionable under U.S. law.

Importantly, many comments made by Fox News staff were, the court found, true. As mentioned above, the mission of the Disinformation Governance Board and of Jankowicz was censorship, the description of her departure from DHS was accurate because "being dismissed from a position is fairly described as being fired from that position," and "the Complaint itself quotes Jankowicz confirming in a Zoom session that she endorsed the notion of having 'verified' individuals edit the content of others' tweets."

Jankowicz's attorney, contacted on a Sunday, had not responded to a request for comment by press time, but Axios reports that her team plans to appeal the ruling.

Truth Police Never Sleep

It's worth noting that the Disinformation Governance Board may be gone, but government officials' desire to police speech lives on. The Foreign Malign Influence Center is purposed with coordinating the federal government's continuing efforts against disinformation, with all the risk that implies.

"Given its inherently subjective nature, what constitutes disinformation — and which disinformation or propaganda actually poses a threat — can quickly take on a political valence," The Intercept's Ken Klippenstein noted after the group's 2023 formation.

If government officials are going to keep trying to police speech, they should grow thicker skins for when called out over their conduct. They should take that as sincere advice, not disinformation.