”It’s clearly not going to be enough to stop the flood of disinformation about our elections being stolen,“ one legal expert told
Jones was not only the clearest case. His default judgment came after his legal team failed crucial information. Nonetheless, the large damages award is a step in the right direction for condemning disinformation – at least when defamation applies – legal experts tell .
“It’s not easy to stop people from lying, given our commitment to the First Amendment,”Richard L. Hasen, a UCLA law professor, said. “But the Jones case shows that when when people lie deliberately, and they do so maliciously in a way that harms people’s reputations, that the courts are willing to step up. And that’s what a jury did in the Jones case.”
Hasen, who wrote “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It,”The route of defamation may be helpful in combating disinformation in certain cases, such the claims of election fraud against Dominion Voting Systems’ voting machine company. Dominion Voting Systems has taken action to sue conservative outlets Fox News, NewsmaxAnd One America News for their reporting about the machines’ security and integrity.
“We know that even the threat of litigation caused these companies to change what they said about specific individuals, or about specific companies,” Hasen said. “So as a remedy for those people or companies, this can be helpful.”
Although defamation continues to be a problem, “useful tool”Hasen explains that the legal route to combating specific false claims regarding the 2020 election is “clearly not going to be enough to stop the flood of disinformation about our elections being stolen.”
Since defamation cases Must prove that the defendant maligned an individual or entity’s reputation by intentionally spreading claims they knew were false or spread them “with reckless disregard of whether it was false or not,”There is no solution for general falsities such as claims of election fraud or climate change hoaxes.
Problem is in the impossibility to condemn disinformation as unconstitutional as U.Va. Fred Schauer, law professor at the University of Virginia, points out that disinformation is not constitutional. “disinformation”Is “constitutionally protected in most circumstances” — the exceptions being commercial transactions and defamation (slander and libel). In reality, “[disinformation and fake news] is not really a legally established category under American law,”Eugene Volokh (UCLA law professor) is an expert in First Amendment law.
“[Defamation] [is]… not primarily about damages for deceiving the public,”Volokh stated. “It’s not about … damage to public understanding of important events. It’s not about disinformation at large, it’s about full statements and damaged reputation of a particular person or persons. So, in this respect, the Alex Jones verdict is nothing new.”
In terms of attacking disinformation through the legal system, Volokh says that the U.S. has grappled with this issue since its genesis, beginning with the Sedition Act of 1798, created to punish solely maliciously false statements about the government — not true statements or opinions, which are protected. The Federalist Congress passed the Sedition Act due to the concern that false statements would damage people’s confidence in the government.
Volokh claims that the law was considered a “law of nature.” “huge protection for free press”It is an important improvement over the English law on seditious and libel. PenaltiesAny public statement “threatened to undermine respect for the government, laws or public officials.”
However, the 1964 New York Times v. Sullivan decision, which was issued in 1964, has resulted in a change of heart. LimitedThe ability for public officials to sue in defamation proceedings under the Sedition Act was eliminated.
So while Volokh foresees the possibility that plaintiffs and lawyers alike might be emboldened to pursue defamation cases against figures on the left and the right — as well as “online personalities,” given the large damages set in Jones’ case — the verdict will not create a clear route for prosecuting disinformation that does not harm a particular individual or entity.
“They’ll be somewhat more likely to bring these lawsuits because it’ll be … prominent in their minds that this lawsuit had prevailed,”Volokh stated. “But it’s not like it sets a precedent that changes the legal landscape.”
What then are legal routes forward to combatting disinformation — if there are any?
“The American free speech tradition [and] legal doctrine … has been that whatever dangers there are about misinformation in general, especially in the political and ideological realm, are less dangerous than having some government agency or court decide what’s true and what’s false,” Schauer said. “And that’s the American tradition. I don’t see any likelihood, with the current courts, that that’s going to [change].”
In the absence of any clear legal route, American tradition is encouraged by the First Amendment. “if there’s misinformation out there, that others should respond to it in the so-called marketplace of ideas.”
Schauer says he doesn’t think the marketplace of ideas is enough to combat disinformation. “Probably not, but that doesn’t mean that we ought to do something about it.”
“‘What’s the power of truth? Which ideas stick and which don’t? Which ideas don’t stick?’ is only slightly a function of truth and falsity … It’s discouraging,” Schauer said. “But that’s the system that we’ve got and is very unlikely to change.”
