Defamation in the Era of Fake News

When I was a kid there were three major television networks and a relatively limited number of print publications. A great deal of capital was needed to become one of the few voices in mass media.

Now, in the Internet era, anyone with a computer and an Internet connection can be a publisher. This has democratized media, for better or for worse. The better part – lower barriers to entry for speakers – has been offset by, shall we say, degraded standards for accuracy and journalistic integrity. Witness the current dialogue over “fake news.”

With the proliferation of speakers has come a proliferation of people claiming that they have been defamed. Defamation is defined as a false statement about the plaintiff, where the speaker acted with “malice” in the case of a public figure or, for a private figure, failed to use reasonable care to determine the truth or falsity of the statement. If the defamation is proven, the plaintiff may attempt to prove damages, including harm to business, actual expenses as a result of the defamation, harm to reputation and shame or hurt feelings. Where no damages are proven the jury may award a “nominal sum,” say one dollar. Punitive damages may be awarded. See CACI (California jury instructions 1700 et seq.)

Let’s analyze the hypothetical case of Obama v. Trump, concerning President’s Trumps tweets that President Obama ordered Trump Tower wiretapped or had the British do it for him. The tweets were clearly about President Obama, and with the absence of evidence supporting the claims, they appear to be false. President Obama is a public figure, so he would have to prove that President Trump acted with “malice,” meaning clear and convincing evidence that the defendant knew the statement was false or had serious doubts about the truth of the statement. President Trump claimed his source for the tweet about the British role was a statement by Judge Andrew Napolitano on Fox. While this is thin evidence, it was at least a statement on a major news channel. Perhaps President Trump flirted with the boundaries of serious doubts about the truth of his statements, but given the clear and convincing evidence standard, if I were the judge, I would err on the side of granting a motion dismissing the action for President Obama’s failure to adduce sufficient evidence of malice.

These days I receive many calls from people who think they have a defamation case and want to go to court. While these cases may be intellectually interesting they face enormous practical difficulties. If the plaintiff is anywhere close to being a public figure, the malice standard applies, a very high level of proof. Often times the statements in questions are insulting but more in the form of hyperbole or name calling than verifiably false statements of fact. Even where the defamation can be proven, damages can be speculative. Most defamation victims cannot prove that they lost any particular piece of business because someone read the defamatory statement and, relying on that statement, declined to do business with the plaintiff. There is harm to reputation or “shame,” but this is hard to quantify or predict. The challenges are all the higher because, at least in California, a defamation claim is often met immediately with an “anti-SLAPP” motion, a pretrial motion to test the validity of a claim based on conduct protected by the First Amendment.

Except in the rare case where a wealthy defamation victim wants to pay to prove a point, or has a wealthy benefactor, as was apparently the case with Hulk Hogan in his case against Gawker, I suspect most defamation claims will be sorted out in the courtroom of public opinion rather than in an actual trial courtroom.