In a previous posting, I published a warning about another malicious fake news story by National Report which showed a picture identified as an Associated Press photo of Paul Horner, 15, allegedly was given 25 years to life for “swatting” — calling in a face police report on an online gaming opponent. The problem is that the story is entirely untrue. I discussed how this article went further then prior juvenile postings by National Report designed to trick news organizations and blogs into posting false stories. There is nothing funny about the stories. These are just mean-spirited efforts to embarrass media and bloggers. However, on his occasion they used a picture of a real person and tied Associated Press to their story. At the time, I asked why anyone has not sued these editors, particularly Associated Press. I have now spoken with Associated Press about the incident.
We identified the picture in the faux article as defendant Dylan Schumaker, who was indeed 15 when arrested but his crime was the death of his girlfriend’s baby boy after he lost control when the baby would not stop crying.
National Report expressly connects Associated Press with the false story using Horner and the identification of the image. The caption says the photo and its identification are from “AP” twice — using the credibility of AP to advance its efforts to trap news and blog sites.
There are two possible lawsuits. One is from Horner. In a signature move, the National Report editors are clearly (and intentionally) using a tort defense that some individuals are “libel proof”: people who have no reputation to lose. Usually however this is not done in a cynical move to lie about a crime and use someone else’s image for commercial benefit. It is not necessarily true that Horner would have no cause of action.
However, the best cause of action is with Associated Press, which could deliver a blow to advance the interests of all news and blog sites — the very consumers of AP stories and photos. Here you have a malicious outfit that undermines both journalists and photo journalists. I would think it would be an easy decision to sue National Report.
I contacted Associated Press to ask if they were going to do something about the association of the AP with the false story. Unfortunately, it is not clear that AP will take legal action in what could be an important response from legitimate media to this outfit. I asked for a statement and AP’s Direction of Media Relations said that it would seek to “rectify”:
Thanks for checking.
First of all, to be clear, the “Associated Press picture” that you cite in your email is not, in fact, an AP photo (the one showing “15-year-old Paul Horner”), despite the caption credit to AP.
We see the bogus crediting of “stories” and photos to AP from time to time, often on websites based abroad and on humor sites, and we have sought to rectify such mislabeling and misinformation, especially when it is echoed in earnest by many others via Twitter and other social media.
We were unaware of the National Report piece before receiving your email.
Director of Media Relations
The Associated Press
It is not clear what “rectify” on a false news site would amount to. If they post a correction on a faux news site, does it satisfy a correction statute? Notably, the editors elected to remove a clear warning from the site that the stories contained on the site are false. Many of these stories have no humorous angle, like this one, and are clearly designed to spread false stories. Indeed, they have not hidden their agenda at planting false stories. The website lists editors like Allen Montgomery. In one report, National Report Publisher Allen Montgomery is quoted in saying that “We have been targeting Tea Party types recently as they are the most gullible and are willing to spread misinformation across the internet with little/no research.” Now there is a worthy purpose in life: finding ways to spread misinformation on issues that deeply affect people’s lives from free speech to homosexual rights to the environment. Other people are trying to deal with a global attack on free speech, but the people at National Report are trying to re-direct that debate into false alleys and walls.
AP has the ability to hold these editors accountable directly and possible deter this type of vicious fun directed at the very users of AP stories and photos.
As for Horner, he obviously was convicted of a more serious offense and became notorious when he cried during sentencing that he never meant to hurt the baby. Schumaker was sentenced to 25 years to life behind bars. However, Judge William Boller (as shown below) then revealed that the bailiff had overheard a conversation that he had with his mother from the holding area in which Horner told her that she did not have to worry because “I am a 16-year-old blond and probably all I have to do is cry in front of the jury and they are going to feel sorry for me.”
Even with this record, a court may be equally disturbed by an intentional use of the “libel proof” cases to publish false accounts. This defense is rarely used successfully and I do not know of a prior case of such intentional false publication. Even under the New York Times v. Sullivan standard for public figures, such knowing disregard or intentional action wipes out the protections for real news organizations in cases of public figures and public officials.
National Report appears to have real advertisers and, if so, could be charged with using both the association with AP and Horner for pecuniary benefit. I fail to see how any advertisers or Internet companies would allow any association with National Report or its editors.
I am not someone who normally advocates litigation in media cases, but this is an exception. National Report does not try to be humorous or facially absurd like The Onion. It is a site solely designed to trap the unwary and spread false stories. It should be the antithesis of the Associated Press and has clearly crossed a legal line in this story. The question is whether AP will do anything about it.