“Fake news”: Democracy’s Hemlock

[For analysis of defamation law’s deficiencies in curbing fake news, click here.]

“Those whom the gods wish to destroy they first make mad.”— Euripides

Two extraordinary things have happened in the last few years. No one, it seems, has yet appreciated just how extraordinary they are. Both have directly to do with the presidency of Donald Trump.

The first extraordinary thing is Trump’s utter lack of relevant experience. He has never served a day in our armed forces or, for that matter, in any alternative national service like the Peace Corps or AmeriCorps. He has never held any public office, even one as humble as city councillor. So if you count as relevant the military commands of our general-presidents (including Washington, Grant, and Eisenhower), Trump will be by far the least experienced president in our national history.

As the New York Times recently reported, Trump’s much-vaunted businesses bear absolutely no resemblance to the the huge federal executive bureaucracy he will take over on January 20. He runs his business empire out of two floors of offices in Trump Tower, with around 150 full-time direct employees worldwide. He makes virtually all the key decisions (and many minor ones) and signs all the big checks himself. His sidekicks with real power are either close relatives or loyal sycophants who have served him for decades.

It would be hard even for a writer of fiction to imagine anything more different from the massive federal bureaucracy, let alone the independent Congress and the courts, that Trump will have to govern and work with as president. So a pulp-fiction writer, contemplating a Trump-like character as president before last year, would have had to dismiss the notion as too improbable for readers to believe.

“Truth is sometimes stranger than fiction,” our hypothetical novelist might say to himself, “but that would be ridiculous!” Yet here we are.

The second extraordinary thing is how we got here. There is every evidence that “fake news,” if not the primary cause of Trump’s election, was instrumental in it. Think about that. Our next president will hold office not just because of normal electoral propaganda and “spin,” but in part because of absolute lies, made up out of whole cloth, and taken as “news” by a significant minority of voters. (For examples of fake news, with statistics on how many voters believe them, see this survey.)

Not only that. Perhaps the key bit of fake news—the one that gave Trump his uneasy start in politics—was a product of Trump himself. His own fake news story may have started the whole downhill slide.

Trump may not have invented the “birther” lie that Barack Obama is not a native-born US citizen, as our Constitution requires presidents to be. But he promulgated and pushed it harder, more explicitly, and more successfully than any other mainstream public figure.

Of course he had help, lots of it. In selling the lie to a much-too-large fraction of the American public, he, Fox and the GOP cooperated. It doesn’t matter whether or not they actually conspired; their parallel action did the trick.

Here’s how the scheme worked. Trump dumped the lie on the American public with no evidence whatsoever. He simply insisted that the burden of proof was on the president to prove his citizenship. He also made constant innuendos that a president who is half black, who has the foreign- (and Islamic-) sounding name “Barack Hussein Obama,” whose father was admittedly a citizen of Kenya, and who lived in Indonesia and Hawaii for much of his early life bears an especially heavy burden of proof.

GOP public officials never repeated the lie directly. But when asked to refute it, they invariably refused. They mouthed the code words and blew the dog whistles of racism, without ever actually repeating the lie, thus maintaining “plausible deniability” as liars. Fox, of course, repeatedly broadcast and repeatedly emphasized their refusals to deny the lie, spreading the notion that “where there’s smoke, there’s fire.” In this way, Trump, Fox and the GOP created a complete edifice of smoke and mirrors, with only Trump mouthing the actual lie.

No one, least of all Trump, offered evidence of the President’s foreign birth. No one scoured records of births in Kenya (or anywhere else!) and came up with a birth record contradicting the President’s native birth. Like most fake news, the “birther” lie depended on no evidence whatsoever. Instead, it thrived on innuendo, implication and reinforcing what many people who simply didn’t like the president already wanted to believe.

How successful was this fake news? Very. As of this August, when the presidential campaign got rolling, 41% of surveyed Republicans and even a small fraction of surveyed Democrats disagreed that President Obama was born in the United States.

Contrary to what some may believe, our First Amendment doesn’t protect fake news. The seminal case is New York Times v. Sullivan (1964). In order to protect free speech from overzealous suits for libel or defamation, our Supreme Court ruled that news media cannot be held liable for propagating lies about public figures unless they do so with “malice,” i.e., something more than mere negligence. They must act recklessly, without regard to the truth or falsity of what they publish.

Fake news is way beyond that standard. The American Law Institute’s Model Penal Code lays out four standards of legal intent, in the following order of strength: negligent, reckless, knowing and purposeful. Fake news is purposeful or deliberate; it involves the highest and most culpable level of intent.

Even if not purposeful or knowing, it is reckless for anyone to publish a falsehood as important as the president’s supposed alien birth with no evidence whatsoever. So the President, and perhaps his tarnished Cabinet, could sue Trump and maybe those (like John Boehner) who assisted his lie with winks and nods, for defamation or libel. Maybe Trump and Boehner could even be jailed for criminal libel.

But how do you assess damages? How can you calculate how much to charge for subverting the world’s most powerful democracy? For falsely tarnishing the image and legacy of a president, making it harder for him to push his agenda and making it impossible for his successor (Hillary) to gain traction? And if the worst happens, and Trump hits The Button is a petulant fit, or when driven to the wall by a Putin or Xi eager to exploit his inexperience and narcissism, how do you calculate the loss in that, assuming that anyone survives to care?

But there’s more. Just to continue with our president-elect, there’s another bit of fake news that he Tweeted after his election. He claimed “millions” of fraudulent votes for Hillary. As in the case of the birther lie, he had no evidence for this claim whatsoever. Nor have the news media discovered any, after pawing through election records nationwide for over a month now. Like the birther lie, this is another bald lie—a bit of fake news designed to distract the feeble-minded and those already disposed to believe that Hillary is Satan.

As many have noticed, the fraudulent-votes lie undermines our democracy. It discourages people from voting by making them doubt that their votes have meaning. It also encourages people who want to suppress the votes of “undesirables” (usually Democrats) on the false ground of “voter fraud.” Its acceptance and its promulgation have real consequences for the future of American democracy.

So fake news is not something that our authorities or our legal system can ignore. Well-informed voters are a fundamental assumption of democracy. If voters are “informed” by lies made up out of whole cloth, that assumption breaks down catastrophically. The electorate becomes a flock of sheep to be misled in any direction. The more lying and unscrupulous the leaders, the “better.”

To see how bad the situation already is, consider a recent survey of both Republicans and Democrats, testing reactions to three real and three fake news stories. On the average, respondents identified fake news stories as very or somewhat accurate 75% of the time. Republicans were more gullible than Democrats, at 84% versus 71%. For example, 64% of all respondents thought very or somewhat accurate a story that the Pope had endorsed Trump.

China is already taking notice, as is consistent with its ever-pragmatic approach to politics and governing. It’s reportedly doubling down on political censorship of the Internet, in order to restrict both fake news and real news that makes it harder to govern.

We Yanks think our system is superior. We think politics and government are more robust and resilient when the people governed hear all the news and have a say in how they are governed. But what if what they think they know is pure fiction—if they believe, in substantial numbers, things that just aren’t so, but that advance narrow partisan objectives? Can democracy then survive?

To answer that question, consider what is happening in the world today. Democracy and even hope for it are on the ropes in all three great empires. Putin has ruled Russia for fifteen years, despite its constitution’s ostensible ten-year term limit for presidents. There is no indication that he has any intention of stepping down. And as his recent influence on our American election shows, Putin is a master of propaganda, although so far he has shown a preference for well-timed releases of real, private and embarrassing facts.

China appears to have informal but effective term limits (two five-year plans’ worth). But Xi has decreased the size of China’s top ruling committee from nine to seven members and is reportedly packing it with his cronies and sycophants.

And we Yanks? Well, a recent, comprehensive academic study of 1,779 separate substantive issues shows that, insofar as concerns policy, we now have a business oligarchy, not a democracy. And have just elected an utterly inexperienced and highly authoritarian leader as president, at least in part, due to fake news and other lies.

Looking beyond the three great empires hardly increases one’s optimism. Turkey has Erdogan, a strongman and term-limit circumventer like Putin. Egypt has Al-Sisi, a former general with little political experience who rules by force, with the aid of our modern weapons, and jails thousands. The Philippines has Duterte, a man who brags about killing people personally and who has unleashed a torrent of extrajudicial killings throughout his typhoon-wracked nation. Then there’s Najib in Malaysia, who serves as both prime and finance minister just to manage things better. And if you look to Europe, you see Britain, Hungary, Poland and even France turning sharply to the right.

Why is this so? Why is the entire world turning to unbridled strongmen with the suddenness and ferocity of a summer typhoon? Could it be that, in nations everywhere, people no longer know what to believe and want something or someone to believe in?

I have already written why voters often lean on “simple” and oversimplified social issues like race and abortion. Real issues like terrorism, the war in Syria, economic inequality, and globalization are too complicated for most voters to get their minds around. So when they hear fake news that confirms their own deepest fears and prejudices and narrows their understanding yet further, what chance do they have to make rational decisions, let alone to protect their own interests against strongmen, demagogues, and oligarchs with louder voices and much better access to the media?

Let’s be clear. The First Amendment does not protect fake news. Nor should it. Any nation that does not outlaw and control fake news will find it impossible to maintain even a semblance of democracy.

I rarely make predictions on this blog. But here I can make one with fair confidence. If nations that style themselves “democratic” don’t get this scourge under control, and quickly, there will be no real democracies left on this planet by mid-century. Australia, Britain, Canada, Germany and New Zealand might survive in democratic form by virtue of their relatively small size and their popular penchant for skepticism and common sense. But our Yankee democracy, now morphing into oligarchy, almost surely will not. We Yanks already confuse politics and policy with entertainment—a cultural defect that Fox and Limbaugh brilliantly exploit.

Fake news is an existential threat to democracy worldwide. We must crush it quickly and relentlessly. Or it will crush us, as surely as the “gods” in Euripides’ proverb.

Endnote: “Loopholes” in Defamation Law

The mere fact that the First Amendment doesn’t protect fake news does not by itself make publishing it illegal. There must be some positive law making its publication a crime or a proper subject for a civil suit.

In Anglo-American jurisdictions, the law that best serves that purpose is the law of defamation or libel. “Defamation” is a general term, which includes oral statements, i.e., slander. “Libel” refers to defamation in print, for example, in newspapers or books.

To my knowledge (after a reasonable Internet search), there is no general federal law of defamation. (A federal statute does require claims for defamation under foreign laws to satisfy our constitutional protections of free speech. See 28 U.S.C. § 4102.) Defamation is a tort under old English common law. So in the United States, it’s therefore state law (either common law or law codified in statutes), and its details vary from state to state.

The reason for making defamation a tort (civil wrong) was to protect the reputations of identified individuals or groups against the power of news media. To this end, the tort has seven elements: (1) making public, (2) a falsehood (3) that is factual, not just opinion, (4) about an identifiable individual or group, that (5) injures his, her or its reputation and (6) causes (7) damages. In some jurisdictions, certain false statements are “defamation per se,” automatically satisfying elements (5) through (7); they include false allegations of having committed a crime or having a “loathsome social disease.”

To illustrate these elements, consider the following old English limerick:

(a) “There once was a young man from Trinity,
(b) Who stole his sister’s virginity;
(c) He buggered his father,
(d) Had twins by his mother,
(e) And still got a first in Divinity.”

Does this limerick satisfy all seven elements of the tort of defamation? Every line states a fact, not just opinion, so element (3) is met. Lines (b) through (d) also satisfy element (5) and, since they affirm activities that are crimes or “loathsome,” probably elements (6) and (7) as well. Lines (a) and (e) don’t satisfy the element of injury to reputation (5) or causation of damage (6) and (7) because they assert neutral or positive facts.

For this limerick, the most difficult elements to prove would be elements (2) and (4): that the damaging factual allegations in lines (b) through (d) are false and refer to an identifiable individual or group. The limerick identifies no specific individual, so only Trinity College, if anyone, could sue for defamation. Yet the limerick mentions only a single individual and does not identify him, let alone state whether he is still alive. So it would probably not satisfy element (5) in most jurisdictions, even ignoring its primary purpose of humor. And of course Trinity College might have trouble proving the elements of causation (6) and damages (7).

As this brief analysis suggests, defamation law is an imperfect instrument for stamping out fake news. It ought to condemn Trump’s “birther” lie, which is about a specific individual (the President) and tends to bring him into disrepute (as unqualified for his office). But even so, there might be difficulties in proving causation of specific damages.

Trump’s second lie, about “millions” of fraudulent votes for Hillary, would be even more problematic. It identifies no specific fraudulent voters, so who would be entitled to sue? The general electorate, or even Hillary voters, is probably too large a group for that. And the lie doesn’t accuse Hillary herself of anything, although the notion that millions of votes for her were fraudulent probably brings her into disrepute. Anyway, she admits she lost in the Electoral College, so what would her damages be?

The general problem of using defamation law to curb fake news is even deeper. What about lies related to an issue, rather than to any individual or group, identified or not? What if a pol declares falsely that the vast majority of claims under “Obamacare,” or of welfare payments in general, are fraudulent? What about fake news that the Pope endorsed Trump? What about James Inhofe, who throws snowballs from a rare D.C. storm on the Senate floor and declares global warming a hoax—a “logical” connection that the vast majority of climate scientists would ridicule?

As traditionally construed, defamation law would cover none of these falsehoods. But should it?

Before you answer, consider that both the law of defamation and the law of false advertising have important safety valves. They both allow you to say or publish anything you like, as long as it is your opinion and doesn’t purport to state facts. A pol can call his opponent a “scoundrel” or “liar” without fear of civil or criminal liability. But when he steps over the line of alleging specific behavior, such as incest or murder, or alleging a specific lie, the law of defamation comes into play.

The same rule applies to commercial lies about products. You can call the product or service you offer “the best” or “high quality,” without fear of a successful suit. But if you say it “whitens teeth better than any other product” or it “reduces injuries by 20%,” you’d better have some proof.

If we protect individuals’ reputations against reckless, knowing or purposeful lies, and if we protect competing commercial products and services similarly, shouldn’t we also protect our pubic sphere—our democracy? The existing law of defamation doesn’t do that well, and in some cases doesn’t do it at all.

The traditional response to this defect is that the “free marketplace of ideas” will cure it. Faced with the truth and a bunch of lies, the public (it is said) will eventually discern truth in the cacophony and emerge enlightened.

But is that really so? And if it once was as least putatively so, doesn’t the Internet disprove it? When every Internet user can (and often does) become a publisher, and when the Internet offers almost every version of any important fact you can name, from the false but diabolically clever to the fantastic and the bizarre, does the “free marketplace” notion really hold up?

Most modern sociologists and political scientists would say “no.” The Internet, with its millions of “channels,” has allowed us Yanks to divide ourselves into numerous warring camps, each of which reads, views and believes only things that confirm its prejudices, predilections and ideologies. So we no longer see the whole “marketplace,” if we ever did. Instead, we live in partisan echo chambers, each mindlessly repeating our own views. As a result, we are less like sophisticated shoppers in an all-compassing free market and more like balkanized warring tribes.

Trump’s candidacy also provides compelling experimental refutation of the comforting but naïve myth of the “free marketplace of ideas.” Already he’s gotten millions of people to believe the lies that Barack Obama is not a native-born US citizen, and that millions of people voted fraudulently for Hillary. These beliefs appear to be durable, and Donald Trump is just getting started.

If we protect individuals and businesses against like lies, shouldn’t we also protect our national culture and our political system? If we require news media to exercise minimal discipline (not being “reckless”) to avoid harming individuals or businesses, shouldn’t we require presidential candidates and presidents-elect like Trump, as well as bloggers and other Internet publishers like me, to exercise similar minimal discipline to avoid killing our democracy by a thousand small cuts?

Would a uniform federal law requiring people who publish statements of fact with political impact at least to avoid reckless, knowing and purposeful falsehoods impair our “freedom”? Or would it save our democracy? Would it bring us together around a commonly understood background of basic facts? Or is it better to have, as we do today, each political party and fringe group living in its own world of false reality, forming Yeats’ “ignorant armies that clash by night”?

On the answers to these questions depends not just the immediate future of American politics, but perhaps the future of democracy itself. Empires don’t need self-discipline. They have ways of discovering the truth. Putin has his FSB, successor to the KGB, from whence he came. Trump, should he become our first American emperor, will have his CIA and FBI to inform him, even if he bores of their briefings. Requiring “us, the people” to wade through a cesspool of lies called the “Internet” in a vain attempt to find the truth unaided seems like a very poor way to protect our waning power and influence, or even our basic rights.

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