Is the Solution to the Fake News Conundrum Right Under the Supreme Court’s Nose? Probably Not.

The phenomenon of “fake news” took the country by storm during and in the immediate aftermath of the 2016 Presidential Election, though in retrospect its rise seems like the logical next step in the rapidly changing news-media landscape. As more and more people use the Internet as a primary method of news consumption (at least half of individuals aged 18 to 49 regularly get their news online), the sources available and sources viewed by individuals have vastly increased. While less than twenty years ago the main sources of news content were limited to newspapers, a handful of cable news channels, and the major network news programs, the access offered by the Internet has given individuals a virtually endless list of methods and sources through which they may get news.

This spike in the availability of sources has resulted in a trend in which many individuals gravitate towards news sources which align more closely with their political views. This trend compounds when individuals rely on social media platforms to direct them to news content. As people filter out what they like and dislike on social media, they become locked into an “echo chamber,” in which only the viewpoints they agree with are seen. Online environments rich in echo chambers encourage people to shy away from news that doesn’t confirm their view on a topic. “[A]bout half (51%) of conservative Republicans who said they see mostly one-sided news say this is OK – a larger share than among all other political groups, including liberal Democrats (34%).” Concurrently, these environments lead individuals to be less critical of information which does align itself with their political and world views. Fake news then becomes a naturally successful beast in an environment in which stories are valued not because of their ability to inform, but rather due to their ability to confirm one’s convictions.

The pervasive effect of fake news has led many to wonder what can be done to curtail the harms it causes to the free press and informed electorate that is so essential to a functioning democracy. According to two law professors, the case of Jankovic v. International Crisis Group may be part of the solution. Professors Marc Jonathan Blitz of Oklahoma City University School of Law and Danielle Keats Citron of the University of Maryland Carey School of Law filed an amicus brief in December of 2016 urging the Supreme Court to grant certiorari in the case, which is a dispute over whether or not Milo Jankovic, a Serbian billionaire, qualifies as a public figure. They argue that “Internet publication and social media has greatly increased the relevance of the limited-purpose public figure doctrine in defamation law,” and confusion over the scope and application of the doctrine has lead individuals to look to private corporations to “silence ‘false news.’” The amici argue that the case provides “an excellent opportunity to resolve the circuit divide over the limited-purpose public figure doctrine” and that revision of the doctrine can satisfy the public’s demand for greater protection of reputation and privacy.

However, revising the limited public figure doctrine to allow individuals like Jankovic—who engaged in various political activities including publicly declaring his intention to one day run for office in Serbia, serving as an informal advisor to the Serbian Prime Minister, and negotiating a deal between the United States and Yugoslavia to reduce Yugoslavia’s debt—to receive private figure designations does not address the evils of false news. In fact, most false news deals with public officials. The amici’s true gripe as it pertains to fake news seems to lie not with the public figure doctrine, but rather with the doctrine of actual malice. It is not a narrowing of the scope of the public figure doctrine which is the antidote to fake news, but rather a broadening of what can be deemed “actual malice.”

In fact, actual malice—a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not”—leaves fake news well covered. “Pizzagate” was formulated by individuals who likely knew of its falsity, and is even one of the more indirect examples of fake news.  Fake news is designed to have the maximum impact, drawing the maximum number of clicks, which means the focus of fake news stories is guaranteed to be public officials or figures almost without fail. Only an extreme narrowing of “public figure” could have an impact on fake news.

Inevitably, the fake news epidemic is a conundrum too complex to be thwarted by a revision to the limited public figure doctrine, or even by an increase in appetite for the initiation of defamation claims by those who are the subject of fake news articles—even with an expanded definition of actual malice.

Fake news is often blamed for expediting the erosion of political discourse in the United States; however guiltier culprits might be the propagation of overly one-sided, editorialized news which presents itself as typical journalism, spread in social media echo-chambers. Further, even if the defamation route were pursued with fake news, many websites are located offshore in places such as Macedonia and Russia, presenting likely insurmountable personal jurisdiction issues. Even then, fake news sources are most likely judgment proof and could easily reincorporate under a different name and begin publishing anew with little difficulty. A monetary judgment doesn’t silence a voice; a bankrupt individual still has much to say.

Finally, it seems necessary to observe that more than doctrines of judicial restraint urge that the solution to fake news should lie not in the courts, but in the people. Democratic systems of government rely on an informed electorate. When that electorate ignores facts, embraces falsities, and abandons convention, all of its own volition, even the strongest judiciary is powerless to intervene. The American Democracy is resilient, and one hopes that resilience remains to avoid dystopia.