Is There a Valid Claim for “Fake News”?

By Madelaine Bauer.

Background

In the wake of an upcoming election, the Trump campaign has taken action and filed libel lawsuits against both the New York Times and the Washington Post. In February 2020, the Trump campaign began their suits by filing against the New York Times for the March 27, 2019 article titled “The Real Trump-Russia Quid Pro Quo.” It is claimed the article falsely stated that the Trump campaign had a deal with Russia to help against the Clinton Campaign by agreeing to relieve economic sanctions. The Trump campaign declares the New York Times knew the statements were false when they were published. The New York Times has recently responded by asserting that the Trump campaign has no right to punish a writer for having an opinion on certain issues and they look forward to vindicating the rights of their writers.

Most recently, on March 3, 2020, the Trump campaign filed another libel lawsuit against the Washington Post for allegedly also publishing “false and defamatory statements” about a Russian conspiracy. The lawsuit specifically points to two different articles that were published in June 2019. The first article published on June 13, 2019 declared that “Trump invited another Russian attack.” The second article at issue was published on June 20, 2019, stating the Trump campaign has invited Russia and North Korea to offer their assistance to the Trump campaign. Just as with the New York Times, the Trump campaign declares that the Post knew the statements were untrue but decided to publish them. Just as the New York Times believes that the Trump campaign has no right to pursue this lawsuit, the Washington Post contends the “lawsuit exemplifies the threat the Trump presidency poses to First Amendment values and freedom of the press.”

Defamation Law

When it comes to defamation lawsuits, it is particularly more difficult for a public figure to have and present a viable claim of libel against media organizations. For public figures to have a claim, they must meet a clear high bar—specifically asserting that the publishers and media knew the information was false or were willfully blind to the falsity and disregarded that the material may very well be false. A viable libel claim for defamation is a statement that not only makes someone look bad, but crosses over the line of our First Amendment rights and tarnishes the goodwill and reputation of such figure.

Considerations & Concerns Moving Forward

On the one hand, the President of the United States has absolute privilege—meaning the President cannot be held liable for defamation. Therefore, is it acceptable for the President of the United States, who has such power, to go against the press and media outlets without this privilege? Further, it may be arguable to some that the President has made false statements as well, so why should he be safe from such claims yet use them against others?

On the other hand, is it acceptable to falsely publish articles about the President of the United States knowingly to try and tarnish his reputation? Additionally, what is the line between an “opinion” and a “false fact”—how far can an “opinion” be drawn to protect writers and publishers First Amendment rights and creative takes on certain topics?

There are arguments for both sides. The issue of defamation is important because it will help assess the line of what is a false statement and what is just an “opinion.” Further, this issue not only affects our President and the News Media but all public figures and all media outlets. At what point is the line crossed where opinions are no longer “opinions,” and public figures, who choose to live their lives in the public eye, are entitled to a claim against those “opinions.” Although defamation claims have been a long-standing part of our history, with the way the media is booming and how cut-throat and critical the press can be, there is no way to truly know how defamation claims will continue moving forward.

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Madelaine Bauer

J.D. Candidate, 2021

My name is Madelaine Bauer, and I am currently a 2L at the Sandra Day O’Connor College of Law graduating in May 2021. I was born and raised in the Arizona heat to be a die hard Sun Devil, and graduated from Barrett the Honors College at ASU in May 2018, with degrees in Marketing & Real Estate. In my spare time, I love working out at BODI, online shopping, playing with my dogs, and party planning.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.