Lawfare Against Misinformation 1/13
Jonathan Rauch loves the idea. I don't
With the help of a new legal aid project, however, Freeman and Moss are breaking that pattern by suing Gateway Pundit for defamation. (They’re also suing One America News and Rudolph Giuliani in a separate action.) That project—called Law for Truth—could have interesting implications for super-spreaders of toxic disinformation.
Launched in December by Protect Democracy, a nonprofit group in Washington, Law for Truth creates a pathway for victims of political libel to fight back. It’s based on the observation that traditional defamation actions have been one of the few ways of holding purveyors of fake news accountable—for instance, by leading Fox News to retract a made-up claim that a murdered DNC staffer was responsible for the 2016 hack of the party’s email accounts.
Jonathan Rauch articulates laudable goals for public discourse. He envisions a process in which the marketplace of ideas rewards truth and sifts out falsehood. But as I indicated in my review of his latest book, his own biases serve to weaken his message.
This latest essay is a case in point. Does he have a convincing argument that lawsuits can improve public discourse? Or is he just being a cheerleader for the blue team?
Most forms of misinformation fall outside of the possibility for legal redress. As Rauch writes,
it will be important for initiatives such as Law for Truth to stay within the boundaries of existing defamation law, not stretch those boundaries with novel or expansive claims.
. . .A general claim that someone uttered a harmful political lie should never be enough to get into court and win a judgment.
I would bet that over 99 percent of political falsehoods do not qualify as defamation. Most unsubstantiated claims do not implicate a particular person. And of those that do, most are not definitively false.
Let us stipulate that Mr. Trump’s claims that voter fraud changed the outcome of the 2020 Presidential election are reckless. After Mr. Trump’s legal challenges failed, the right thing for a statesman to do would have been to concede the election while calling for a bipartisan commission on election integrity to investigate and come up with more reliable voting and tabulation systems in the future.
Rauch is justifiably angry with Mr. Trump’s continued insistence that the election was stolen. But if your goal is to bring closure to the 2020 election controversy, the lawsuit against Gateway Pundit, regardless of how it turns out, is going to have zero effect.
We can have a separate discussion about balancing the rights of freedom of speech with the rights of individuals not to be defamed. I myself have more questions than answers. Could calling someone a racist without proof be grounds for a lawsuit? Has Rand Paul defamed Dr. Fauci? or vice-versa? Did Nancy MacLean’s Democracy in Chains defame the late James Buchanan as well as some living economists? There are difficult problems surrounding this issue, and I am afraid that Rauch is avoiding them.
I certainly wish that we could reduce the extent to which partisans engage in distortion in order to incite personal hatred toward individuals on the other side. (Equating Joe Manchin to Bull Connor, for example.) Ideally, the red team would adopt norms against this behavior and enforce it within the red team, and the blue team would do likewise. Instead, if the norm is that each side engages in incitement up until the point where the other side takes them to court, I don’t think Rauch or I will like the outcome.
I don’t question the right of the individuals involved to pursue their redress through the courts. If it were Rauch’s main intent to champion that right, that would be fine.
But Rauch is claiming that lawfare conducted by the blue team is going to improve public discourse. That claim is not credible. It is just naked partisanship, and it undermines, rather than furthers, the goals of The Constitution of Knowledge.
Believe it or not, I'm actually with Rauch on this one. Defamation lawfare based on traditional principles of jurisprudence would be fine and probably produce big benefits on our discourse. Indeed, consider that prominently successful defamation suits against the Rolling Stone hoax and the media entites who knowingly slimed Nick Sandmann act like a dam that holds back a flood of what would be thousands of instances of even more egregious libel if only the usual suspects holding the megaphones thought they could get away with it.
But - you knew this was coming - there are some spoiler caveats that cause me to part ways with Rauch.
(1) Everything in the NYT v. Sullivan line of cases, and any holdings that in practice make exceptions for the press or distinctions between it and ordinary individuals would have to be unwound to the jurisprudence which prevailed when Coolidge was President.
(2) Related to above, section 230 is out for all large communications platforms and social media companies. Free for all and immunized from liablity, or censor at will but accept normal publisher liability: choose.
(3) All this relies on being able to trust and rely on judges to follow the law with fidelity, fairness, and neutrality, which, sorry, we can't. So, instead of judges, bipartisan 'tribunals' with an even and equal number of represenatives chosen by each major party. If you can't convince some people from the 'other side' to flip, then the statement, defamatory or not, is fair game. "Free speech" has an exception for defamation, so this would be "Free speech+" because it would permit even more things to be said without fear of state-enforced penalty.
Give me 1-3 and I am totally with Rauch. Under the current nutty system? Forget it.
I dislike this idea because I think it will lead to the rich silencing those of lesser means, with any truth value trumped by money.