We recently discussed how Trump critics appear to be adopting his tactics and rhetoric as they prepare to take over the Executive Branch and possibly Congress. There is a sense of “Trumpunity,” a license to use any means in the aftermath of the Trump Administration. Now, Harvard Law Professor and Bloomberg columnist has added a Trump-like call for the use of defamation lawsuit to combat “fake news.” That call for defamation actions to hammer media has been one of the most consistent and criticized Trump positions. The call for such media lawsuit is no less concerning when it comes from a liberal like Sunstein.
Like Sunstein, Trump often called for lawsuit to combat “fake news,” a term that has now been dangerously adopted by the left to refer to an ever widening array of positions. Like “disinformation,” it is heavily laden with subjectivity. The threat to the free press is obvious and was the basis for foundational court decisions.
The standard for defamation for public figures and officials in the United States is the product of a decision over 50 years ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written. The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.
The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.
Sunstein wrote a column in Bloomberg calling for lawsuits against what he deems “misinformation and fake news.” He declares that “[p]art of the answer lies in a very old remedy: the law of defamation.” This example are allegations of widespread voting fraud tied to Smartmatic and Dominion Voting Systems.
For the record, I wrote about Dominion suing for defamation weeks earlier. I have no problem with individuals or companies suing in defamation, including public officials and figures. In the case of the disastrous press conference by the Trump legal team, I was highly critical of conspiracy theories laid out by Rudy Giuliani and Sidney Powell without support.
Sunstein however goes further to embrace defamation as part of what is becoming a comprehensive assault on the left against free speech. First, he is discussing not the lawsuit that I raised against the attorneys making these claims outside of court. Rather, he is supporting a lawsuit against any media who aired views indicating agreement with the theories. Sunstein wants major companies to sue contributors, commentators, or columnists who express their own belief that there could be such manipulation of computer systems. The clear purpose is to chill anyone who would express views deemed “misinformation” to people like Sunstein. Sunstein states:
“Let’s stipulate that it might be hard to show that people at Fox, Newsmax and One America News actually knew they were promoting stories that were untrue. If so, it’s relatively easy to argue that their statements about Smartmatic and Dominion were “recklessly indifferent” to the question of truth or falsity.”
Really? The action would be against news media for allowing figures to agree with the arguments of Powell and others that these systems could have been manipulated. These are views that have a clear technical basis. Many of us criticized the theories because they did not seem to explain how the paper record matched the electronic count after official recounts. However, there are many such controversies with a mixed of legal, political, and technical elements. These are systems that were new for many jurisdictions and certainly new for many commentators and citizens. This is a dangerous area to use defamation law to deter people from expressing their viewpoints on the election and the legitimacy of the results.
Second, Sunstein is calling for an even broader application. He recognizes that he is taking a doctrine designed to protect speech to restrict speech.
“That’s deeply ironic, because the ruling was originally meant to provide a shield — giving broad protection to journalists, broadcasters and speakers of all kinds on the theory that most false statements are relatively innocent. In the court’s apparent view, “knowing falsehoods” — lies — would be pretty rare, and even recklessness would be unusual.
That was then, and this is now.”
It is that easy. When New York Times v. Sullivan was working to protect interests favored by Democrats, it was inviolate as a shield. Now, however, they want to use it to stop others from speaking “as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.” Of course, there are ample ways for people like Sunstein to simply counter such views; to use their own free speech to combat what they view as bad speech. Indeed, most of us heard experts on the issue and rejected the theories. This however is not about combatting bad speech but preventing speech generally. As Sunstein declares “it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.”
The call is all too familiar to those in the free speech community. Many on the left have embraced censorship and speech crimes, particularly in curtailing speech on the Internet and social media. Indeed, some have embraced the position of China in such speech controls. Biden has tapped one of the most outspoken anti-free speech figures for a key position on his transition team. The calls also mirror the European view that has destroyed free speech on that continent. We have previously discussed the alarming rollback on free speech rights in the West. It is a trend that seems now to be find support in the media, which celebrated the speech of French President Emmanuel Macron before Congress where he called on the United States to follow the model of Europe on hate speech.
In January, Biden called for greater speech controls on the Internet and denounced Twitter for allowing others to speak freely. In insisted that tolerating such views in the name of free speech is same as “propagating falsehoods they know to be false.” Biden called for companies to bar Trump views on such things as mail-in voting as an invitation for fraud. He is not alone. Congressional leaders like House Intelligence Committee Chair Adam Schiff have called for labeling and removal of material with some members directly threatening a legislative crackdown. This week, Speaker Nancy Pelosi denounced Facebook CEO Mark Zuckerberg for resisting speech monitoring and censorship as a matter of free speech. Pelosi lashed out that those who want to preserve a free speech zone are “all about making money,” ignoring free speech advocates who have no financial interest in these companies. Pelosi said that opposing such monitoring means that social media companies simply want “to make money at the expense of the truth and the facts” and are trying to “hide under the freedom of speech.”
These efforts are drawing upon the work of academics who are pushing for greater censorship and speech controls. The Atlantic published an article by Harvard Law School professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods calling for Chinese style censorship of the internet. They declared that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong” and “significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with society norms and values.”
Sunstein’s call to use defamation as a sword rather than a shield would add another weapon in this comprehensive attack on free speech. Limiting free speech has now become chic in academic circles. There is a growing view of free speech as not a goal to be protected in our constitutional system, but a danger to be combatted. Indeed, for many, it seems like you cannot be entirely woke unless you are willing to deny free speech or academic freedom to others.
Sunstein is right that he is seeking to convert New York Times v. Sullivan into a sword rather than a shield. That sword will then right down free speech, not lies. Indeed, the reduction of free speech will only serve to protect false statements. With corporate censorship and litigation threats, there will be a chilling effect on those who are willing to challenge majoritarian views, or, in the case of media companies, willing to air such opposing views. That is the point of all of these “swords” — to strike down views that you no longer want to hear.