Fake News: Can We Sue Fox News/Trump/And Others?

Like for real though. Can we?

The short answer is no, according to the First Amendment of the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

But let’s be real here, it’s a bit more complicated that that. Like, can the press be held responsible when their actions put lives at risk? For example, in her Washington Post column, Margaret Sullivan cites data that proves certain news sources (like Fox News and Rush Limbaugh) misled their viewers “to believe that vitamin C was a possible remedy [for COVID-19], that the Chinese government created the virus in a lab, and that government health agencies were exaggerating the dangers in the hopes of damaging Trump politically.” As if that weren’t enough, not only did Sean Hannity call Covid-19 a hoax, but Fox News deliberately downplayed the severity of COVID-19. Furthermore the misinformation doesn’t end there. Fox News itself states that Tucker Carlson cannot be believed therefore he can’t be sued for slander. And unfortunately there is nothing we can do. A recent lawsuit against Fox News for deliberately spreading false information was thrown out because of First Amendment rights.

However the law aside, this does not answer our moral questions. Does the press have a responsibility to report factual information, and furthermore, can the press be held responsible when their actions put lives at risk? Unfortunately, while the press has the legal freedom to say whatever they want, the question of accountability is a bit more complicated.

In a recent op-ed in the New York Times, Michael Tomasky discusses “freedom” and one philosopher in particular, who had a very large influence on our (& especially conservatives’) current notion of freedom: John Stuart Mill. Readers of this blog will recognise this name since I seem to reference Mill frequently. This blog’s very first post discussed Mill’s Harm Principle and why mask mandates are not anti-freedom. Though not mentioned by Tomasky, the Harm Principle has greatly influenced the Supreme Court’s interpretation of free speech.

In On Liberty Mill defines freedom by forbidding harm (i.e., the Harm Principle). He states,

That the sold end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their member, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.

Furthermore, Mill augments this with freedom of thought and press. He states that:

The inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolutely freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it.

In short, Mill allows freedom of the press because it is linked to liberty of conscience, which is a form of liberty that concerns only oneself. Furthermore Mill argues that 1. every opinion has a truth value (true, false, or partially-true), and 2. Restrictions on expressing opinions (irrespective of truth-value) are not to be allowed. He argues this last point because he believes that freely discussing opinions lets one figure out which opinion is the right one (note: right =/= true) for society to use because opinions are rarely right/wrong, but usually partially-true/partially-wrong. Depending upon context, some partially-true opinions are more useful than others (and their usefulness can change as time progresses).

However, Mill does not advocate for total freedom of speech. He makes one exception, which is known as the corn-dealer example:

No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful, by the active interference of mankind.

The restriction on freedom of the press occurs when others are involved. One notable feature of the corn-dealer example is the notion of intent. Though the person expressing “Corn-dealers are starvers of the poor” in front of an excited mob can be argued to be expressing his right to freedom of speech (irrespective of truth value), the intention to do so in front of an excited crowd is to rouse the crowd and cause harm to the corn-dealer and others. However, such an expression of opinion would be acceptable if merely printed in the newspaper (probably because the incitement is gone). Yet interestingly, an action’s intent is mentioned very briefly elsewhere in On Liberty. Mill says that free speech ought not to be restricted by the manner it is done (e.g. offensively, bad taste, misrepresentation of facts, etc.) because such things are usually done in “perfect good faith“. If only he knew that this is hardly true and such misrepresentations are amplified in echo chambers.

So, let’s ask ourselves:

1. Is Fox News merely expressing an opinion in perfect good faith or is Fox News expressing it with the intent to instigate?
2. Can we hold Fox News accountable (e.g. if its viewers spread COVID-19 or attack a state governor?)

For question 1, let us assume Fox News is expressing an opinion in good faith (even if it knows it is wrong simply to add and enrich the public debate). Unfortunately, this is not enough to hold Fox News accountable under Mill’s Harm Principle or US law. As Christy O’Neil explains in the Syracuse Law Review, the press cannot be held accountable for spreading half-truths and misinformation (unless there is proof of deliberate falsehood or reckless disregard for truth) nor be held liable for what they cause people to do. Reader, if you notice, there is a strong parallel here with Mill’s protection of expressing opinions irrespective of truth-value.

Now let us ask if Fox News is expressing an opinion with the intent to instigate? Let’s assume say that it is. The next question to ask is “Can we hold Fox News accountable?” In Brandenburg v. Ohio, the Supreme Court decided that speech loses protection if it calls for and leads to “imminent lawless action.” This means that if the instigation for lawless action is vague, then such speech is protected. The action must be about to happen. As Geoffrey Stone, professor of constituional law at the University of Chicago Law School, says, “What Brandenburg is about is literal incitement – ‘I’m encouraging you to kill somebody,’ not just saying something that angers someone. That’s different.” Interestingly, such a notion parallels the corn-dealer example albeit in a much more restricted form.

While it may be difficult to hold Fox News accountable, what if we turn our sights to the President? The first step is to prove Trump incited people to lawless action. One such start has been done by Michigan attorney general, Dana Nessel, who has tied the extremist plot to kidnap Michigan Governor Gretchen Whitmer by Trump-supporting extremists to comments by President Trump. Such comments included tweets advocating “LIBERATE MICHIGAN”, and the refusal to condemn white supremacy on live television. Not to be deterred, Trump continued to target Whitmer by chanting “Lock Her Up!” at a rally just 10 days after the abduction attempt.

If we swap the angry mob in the corn-dealer example with a Twitter audience and the Presidential Debate’s at-home audience, would this suffice the requirement for imminent lawless action? Only time will tell, and one that will definitely be part of the process of holding Trump accountable post-election.

If all else fails, we at least have one form of accountability left. Mill says we would all be better off if we could simply point out to someone that they’re wrong. Some people simply by their behavior are properly seen with distaste, and if we ought to tell them this without making going out of our way to hinder his life. Mill says, “If he displeases us, we may express our distaste, and we may stand aloof from a person as well as from a thing that displeases us; but we shall not therefore feel called on to make his life uncomfortable.” Perhaps it’s time for everyone in the country to stand up to certain people without the polite formalities, and remind them that racism, sexism, homophobia are not OK, that COVID is real, and to socially isolate them by disassociating from them.

Do you agree with the US Constitution that all speech should be protected or do you think that Fox News, OANN, Trump, and others should be held accountable for their speech? What do you think the limits to free speech are? Let me know in the comments!