Free Speech and Fake News

PRINCETON – About a week before the United States presidential election last November, someone posted on Twitter that Hillary Clinton was at the center of a pedophilia ring. The rumor spread through social media, and a right-wing talk show host named Alex Jones repeatedly stated that she was involved in child abuse and that her campaign chairman, John Podesta, took part in satanic rituals. In a YouTube video (since removed), Jones referred to “all the children Hillary Clinton has personally murdered and chopped up and raped.” The video, posted four days before the election, was watched more than 400,000 times.

Emails released by WikiLeaks showed that Podesta sometimes dined at a Washington, DC, pizza restaurant called Comet Ping Pong. Apparently for that reason the child-sex-ring accusations focused on the pizza restaurant and used the hashtag #pizzagate. The allegations were frequently retweeted by bots – programs designed to spread certain types of messages – contributing to the impression that many people were taking “Pizzagate” seriously. The story, amazingly, was also retweeted by General Michael Flynn, who is soon to be President-elect Donald Trump’s national security adviser.

Even after Trump’s election – and despite debunking by the New York Times and the Washington Post – the story continued to spread. Comet Ping Pong was harassed by constant, abusive, and often threatening phone calls. When the manager approached the DC police, he was told the rumors were constitutionally protected speech.

Edgar Welch, a Christian who has Bible verses tattooed on his back, was one of Jones’s listeners. On December 4, he drove 350 miles from his home in North Carolina to Comet Ping Pong, armed with an assault rifle, a revolver, and a knife. He allowed guests and staff to leave while he searched for enslaved children supposedly hidden in tunnels. He fired his rifle at least once, to open a locked door. After finding no children, he surrendered to police.

Fake news – “active misinformation” that is packaged to look as if it comes from a serious news site – is a threat to democratic institutions. There have been less absurd examples, including a fake report of a nuclear threat by Israel’s defense minister that misled his Pakistani counterpart into retweeting the report and warning Israel that Pakistan, too, is a nuclear power.

President Barack Obama acknowledged the danger to democratic freedoms when speaking to the press in Germany shortly after the US election. Whether or not fake news cost Clinton the presidency, it plainly could cause a candidate to lose an election and upset international relations. It is also contrary to one of the fundamental premises on which democracy rests: that voters can make informed choices between contending candidates.

The First Amendment to the US Constitution states that. “Congress shall make no law… abridging the freedom of speech, or of the press…” By 1919, the Supreme Court’s interpretation of those words had led to the doctrine that Congress could prohibit speech only if it posed “a clear and present danger” of serious harm.

That position was further refined in what is perhaps the greatest defense of freedom of speech by an American judge: Louis Brandeis’s concurring opinion in the 1927 case of Whitney v. California. Brandeis described freedom of speech and assembly as “functions essential to effective democracy.” He appealed to “courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government.” On that basis, for speech to pose a clear and present danger that could justify prohibiting it, the harm the speech would cause must be so imminent that it could preclude any opportunity to discuss fully what had been said. If, Brandeis insisted, there is “time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Today, it is difficult to have so much confidence in the power of “free and fearless reasoning,” especially if it is supposed to be “applied through the processes of popular government” – which presumably requires that it influence elections. Similarly, Brandeis’s belief that “more speech, not enforced silence” is the remedy for “falsehood and fallacies” looks naïve, especially if applied in an election campaign.

What, though, is the alternative? What Jones said about Clinton is surely defamation, and she could bring a civil suit against him; but that would be costly and time-consuming, most likely taking years to move through the courts. In any case, civil defamation lawsuits are effective only against those who have the assets to pay whatever damages are awarded. 

What about criminal libel? In the United Kingdom, “defamatory libel” was for many centuries a criminal offense, but it fell into disuse and was abolished in 2010. In the US, criminal libel is not a federal offense. It continues to be a crime in some states, but few cases are brought.

A report in 2015 by A. Jay Wagner and Anthony L. Fargo for the International Press Institute describes many of the recent cases as “petty” and regards the civil libel law as a better recourse for “personal grievances.” The report concludes that criminal libel has become “redundant and unnecessary.”

Recent examples of fake news suggest that Wagner and Fargo’s conclusion was premature. To accuse, during an election campaign, a US presidential candidate of personally murdering children is not petty, and civil libel law provides no adequate remedy. In the Internet age, is it time for the legal pendulum to swing back toward the offense of criminal libel?