The Volokh Conspiracy

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Volokh Conspiracy

Fake news and the law, from 1798 to now


I haven't said much about the "fake news" debate, largely because so much about it is obvious—1) false statements are bad, but 2) various actions (especially by the government) to try to stamp out such false statements can be even worse. Libel lawsuits, and even libel prosecutions, based on lies about particular people (especially private citizens) are allowed, subject to First Amendment safeguards. But lawsuits and prosecutions for lies about the government are forbidden, and I think the same should apply to lies about current events, history, science and the like (at least so long as no particular person or business is targeted). It's not that the lies are constitutionally valuable as such, generally speaking; but threatening to punish them unduly deters even true statements, as well as expressions of opinion.

Private action is more complicated: On one hand, services such as Facebook (and, especially, Google) might perfectly reasonably want to help screen out false news stories, just as a service to their clients, most of whom would presumably prefer seeing true stories instead of false stories; indeed, the job of various news services is to do precisely this. On the other hand, and again obviously, if Facebook wants to embark on such a project, many people will naturally worry that it's doing this in an ideologically biased way, which would make the platform less credible.

But let me offer a couple of tidbits from American history that, I hope, will be a bit less obvious.

1. Congress's first brush with the "fake news" problem, of course, happened in 1798, with the Sedition Act, which among other things purported to punish "malicious" falsehoods about the government. That is generally thought not to have worked out so well, partly because it was, unsurprisingly, enforced in a partisan way and was used to suppress opinions with which the government disagreed as well as outright knowing falsehoods. But there's a quote that I particularly like from that era, from Case of Fries, a 1799 case in which Justice Iredell addressed the jury in a treason trial flowing from the Fries Rebellion:

Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved. In consequence of such misrepresentations, a civil war had nearly desolated our country, and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.

The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity—increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief. A pen, in the hands of an able and virtuous man, may enlighten a whole nation, and by observations of real wisdom, grounded on pure morality, may lead it to the path of honour and happiness. The same pen, in the hands of a man equally able, but with vices as great as the other's virtues, may, by arts of sophistry easily attainable, and inflaming the passions of weak minds, delude many into opinions the most dangerous, and conduct them to actions the most criminal….

[C]an it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power…. Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?

It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.

A perfectly sensible argument, it seems to me—but one that I think our law has rightly rejected, partly based on experience with the Sedition Act. I hope we continue rejecting modern echoes of that argument as well.

2. Congress also banned "willfully conveying false reports and statements with intent to promote the success of the enemies of the United States" during World War I. Schaefer v. United States (1920) stemmed from a conviction under that statute; there too, it seems to me, the attempt to punish fake news was quite troublesome. Here is a passage from the close of Justice Brandeis's partial dissent, joined by Justice Holmes:

The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men not merely for disloyal acts but for a disloyal heart; provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason…. To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution will doubtless discourage criticism of the policies of the Government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities.

Nor will this grave danger end with the passing of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

3. There is one area where the government does purport to regulate "fake news"—the Federal Communications Commission broadcast hoax regulation, applicable to licensed TV and radio broadcasters:

No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:

(a) The licensee knows this information is false;

(b) It is forseeable that broadcast of the information will cause substantial public harm, and

(c) Broadcast of the information does in fact directly cause substantial public harm.

Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

Fortunately, this provision has been used quite sparingly; here's a passage from an FCC letter based on the provision, Frank Battaglia, 7 FCC Rcd. 2345 (F.C.C.):

This is in reference to the Commission inquiry into the broadcast by Station WALE(AM), Providence, Rhode Island, of a hoax broadcast that one of its on-air personalities. Steve White, had been shot. According to a report from the Providence Police Department, on July 9, 1991, at approximately 5:45 p.m., WALE's news director, Thomas Moriarty, announced over the air that WALE talk show host Steve White had been "shot in the head" while outside the station on a break.

According to the police report, Moriarty stated that WALE had been experiencing "frequency problems" at 5:40 p.m., and that Steve White had instructed Moriarty to make this announcement. The police report states that approximately ten minutes later, the station announced that the "shooting" had been a dramatization. In the meantime, the police report shows that several cruisers along with a lieutenant and a sergeant rushed to the scene where they were met by several members of the media who were trying to obtain information about the shooting.

On September 13, 1991, we sent you a letter inquiring as to the details of this broadcast and the surrounding circumstances. According to your reply, and an affidavit of Robert Michael Gray, WALE's program director, the following scenario took place on July 9: WALE was off the air from 4:42 p.m. to 5:45 p.m. to service the transmitter. Steve White left the building at 5:30 p.m., instructing Thomas Moriarty that, if the station went back on the air before 5:55 p.m. (the end of White's show), to announce that White had been shot while smoking a cigarette outside the station. Moriarty went on the air at 5:45 p.m., announcing that White had been shot.

Gray states that, upon hearing the broadcast, he immediately called the station and told Ken Torres, the producer, to cease the broadcast immediately. When the broadcast continued, Gray claims he shut off the transmitter until Torres agreed to stop the broadcast. According to your response, when Gray turned the transmitter on one minute later, Torres gave a disclaimer, which you claim to have aired every half hour for 30 hours thereafter, then aired the regular 5:55 p.m. newscast.

You state that Gray terminated Torres, Moriarty and White, and that you immediately contacted your Washington, D.C. counsel. (Because you claim that White is no longer an employee of WALE, you did not include an affidavit from him.) You also state that the broadcast was spontaneous, without the approval or knowledge of management, and was not part of the regular newscast. According to your response, WALE received no letters but did receive approximately 10 telephone calls from listeners inquiring into the accuracy of the report. As to remedial efforts, you state that the station called the media to apologize and offered to pay the costs incurred by the Providence Police Department.

The Commission regards broadcast hoaxes as serious violations of stations' public interest responsibilities. The Commission has recently taken action against licensees whose on-air personnel have knowingly broadcast false reports. See Emmis Broadcasting (KSHE(FM), Crestwood, MO), 6 FCC Rcd 2289 (1991) ($25,000 notice of apparent liability for violations of the Communication Act's prohibition on the transmission of false distress signals); Letter to Radio Station KROQ-FM, 6 FCC Rcd 7262 (1991) (admonition for broadcast of hoax murder confession and subsequent coverup by station employees without licensee knowledge or involvement).

Here, it appears that you neither knew, approved, nor ratified the broadcast of a false announcement that one of your on-air personnel had been shot, and therefore did not abdicate your responsibility to supervise your employees. The episode appears to have been a spontaneous isolated event, orchestrated solely by certain personnel. Further, it appears that you effectuated prompt disciplinary and remedial action.

Nevertheless, the Commission has long viewed the type of deliberate distortion of programming that occurred in this case as inconsistent with the public interest. It is also well established that licensees are ultimately responsible for the actions of their employees. Furthermore, licensees will not be excused for past violations by reason of subsequent remedial action.

Accordingly, North American Broadcasting Co., Inc., licensee of Station WALE(AM), Providence, Rhode Island, IS HEREBY ADMONISHED for broadcasting the type of false and misleading information which violates the Commission's general policy requiring licensees to program their stations in the public interest. It is expected that North American Broadcasting Co., Inc. will take such steps as are necessary to assure that such violation is not repeated. This matter is being made a part of WALE's permanent record….

(Recall that the courts have—correctly or not—long viewed the government as having much broader authority to restrict speech on broadcast television and radio than in other media. That's why the Supreme Court upheld the Fairness Doctrine, before the FCC repealed it, as well as holding that the FCC could ban broadcast of the "seven dirty words"; both of these rules would be clearly unconstitutional if applied to newspapers, demonstrations, public displays and the like.)