“Fake News” has spread like a virus through the media popping up on newsfeeds all over the internet, spreading fictitious information for the public to unknowingly consume and regurgitate. Fake News is a broad definition that could be articulated as misleading or factually untrue information disguised as news. A survey conducted by Pew Research Center in December 2016 found that 64% of Americans believe that fake news confuses them when it comes to basic facts, leaving them uncertain what is true about current events. Pew Research Center, Many Americans Believe Fake News is Sowing Confusion, www.journalism.org (last visited February 2, 2017). Further, almost one in four Americans reported they shared fake news either knowingly or unknowingly. Id. With Americans unable to critically analyze fake news, misleading information is spreading all over the internet and causing some very real legal implications.
Fake news is not a new phenomenon. Its most obvious repercussions are libel or slander suits as seen in Hustler Magazine Inc., v. Falwell. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 47-8 (1988). Hustler Magazine printed a serious of advertisements parodying liquor advertisements where celebrities discuss their “first time”. Id. The magazine published a parody of a nationally known minister and prominent commentator on politics and public affairs as recalling his “first time” was “during a drunken incestuous rendezvous with his mother in an outhouse.” Id. They claimed that the information was received through an interview with the minister and that the ad should not be taken seriously. Id. The case was taken to the Supreme Court where they held that the speech was protected by the First Amendment. Id. at 57. The newspaper had a right to publish parodies about public officials that could not be reasonably taken seriously. Id. Therefore, the minister lost. Id. However, Clint Eastwood was able to recover for damages after the National Enquirer published an article claiming they had an exclusive interview with Eastwood about him being a new father. Eastwood v. Nat’l Enquirer, 123 F.3d 1249, 1250, 1256-7 (9th Cir. 1997). Eastwood argued he never had an interview with National Enquirer and they were violating his rights of publicity. Id. at 1250. The court found that National Enquirer was liable because they published the article knowing it was false; thus, there was actual malice. Id. at 1256. These two cases represent the repercussions in civil law, but the spread of fake news has taken a turn for more serious criminal implications.
The most recent example of fake news inspiring criminal activity is the “Pizzagate” scandal. James Alefantis, owner of Comet Ping Pong, a pizza restaurant located in Washington, DC was victimized by the real effects of the spread of false information. Mike Wendling, The Saga of ‘Pizzagate’: The Fake News Story That Shows How Conspiracy Theories Spread, www.bbc.com (last visited February 5, 2017). During the most recent election cycle, WikiLeaks released some of Hillary Clinton’s campaign emails, which mentioned Mr. Alefantis, who is a supporter and donor of the Democratic party. Id. Once the information was loose on the internet it became the basis of a horrific conspiracy theory. Internet users began to falsely accuse Mr. Alefantis of running a child sex ring in the basement of his pizza shop. Id. Mr. Alefantis was threatened on social media many times even after denying the allegations. Edgar Maddison, a believer of the story, drove from North Carolina to DC to investigate. Kevin Bohn, Daniel Allman, and Greg Clary, Gun-brandishing Man Sought to Investigate Fake News Story Site, Police Say, www.cnn.com (last visited February 4, 2017). Mr. Maddison arrived with a rifle and assaulted an employee. He was charged with assault with a deadly weapon. Id.
President Trump has become a powerful voice concerning fake news. In his first press conference since being elected as president, he claimed CNN is fake news and would not take a question from one of its correspondents. The New York Times, Trump Calls CNN ‘Fake News’, www.nytimes.com (last visited February 5, 2017). Moreover, the Trump administration has creatively branded a new term for unsupported statements, “alternative facts”. Eric Bradner, Conway: Trump White House Offered Alternative Facts On Crowd Size, www.cnn.com (last visited February 5, 2017). The White House disputes true statements regarding numerous topics and is determined to not accept factual evidence in disagreement with its standing on issues. For example, the Trump Administration has declared that there was a high turnout for President Trumps inauguration. Id. However, facts prove otherwise. Julie Hirschfeld and Matthew Rosenberg, With False Claims, Trump Attacks Media on Turnout and Intelligence Rift, www.nytimes.com (last visited February 7, 2017). President Trump disputed pictures that showed President Obama’s inauguration turnout versus his. Id. He stated that there were up to 1.5 million people. Id. Further, Mr. Spicer stated that President Trump’s inauguration brought the largest crowd to witness an inauguration ever. Id. However, the photographs taken of the event prove otherwise. Id. In an attempt to blur the truth, the Trump administration has stated that they are basing their assessment on alternative facts and the mainstream media is lying. Eric Bradner, Conway: Trump White House Offered Alternative Facts On Crowd Size, www.cnn.com (last visited February 5, 2017). It is not only undermining professional journalists work, but they are setting a potential devastating example to society to distrust the media. Brian Stelter, ‘Alternative Facts:’ Why the Trump Team is ‘Planting a Flag’ in War on Media, www.cnn.com (last visited February 7, 2017). Essentially, the “post-truth” meaning “relating to or denoting circumstances in which objective facts are less influential in shaping opinion than appeals to emotion and personal belief” has paved the way for fake news to flourish. Oxford Dictionaries Word of the Year, Post-Truth, en.oxforddictionaries.com (last visited February 7, 2017).
Therefore, as a result of the rampant spread of the misleading information, tech companies are attempting to create disincentives for websites to promote fake news. Google has been the first to challenge the spread of fake news. Nick Wingfield, Mike Isaac, and Katie Benner, Google and Facebook Take Aim at Fake News Sites, www.nytimes.com (last visited February 3, 2017). They now ban websites from using their advertising services if the website assists in sharing fake news. Id. Facebook updated their policy to not include ads for websites who share misleading information or fake news. Id. Another tool has been created by Brian Feldman of New York Media that alerts a reader when a news story is likely fake. Brian Feldman, Here’s a Chrome Extension That Will Flag Fake-News Sites for You, www.nymag.com (last visited February 3, 2017); Chrome Extension. The tool, Fake News Alert, is a Google Chrome browser extension which can be downloaded to any Google Chrome user. Id. Feldman based his Browser Extension off of the research of Melissa Zimdars, a communication and media professor from Merrimack College. Id. Zimdars compiled a list of websites that are considered fake news and how to spot such articles. Nick Wingfield, Mike Isaac, and Katie Benner, Google and Facebook Take Aim at Fake News Sites, www.nytimes.com (last visited February 3, 2017); Madison Malone Kircher, An Extremely Helpful List of Fake and Misleading News Sites to Watch Out For, www.nymag.com (last visited February 3, 2017). Feldman’s Extension alerts a person who is reading something from Zimdar’s list of flagged sites. Id.
Tech companies have begun to combat the proliferation of fake news by helping to deter traffic from fake news websites and providing browser extensions that flag fake news. However, individuals also need to also assist in the fight by utilizing their critical thinking skills to evaluate the authenticity of articles and websites and refrain from knowingly sharing or regurgitating fake news. If not, incidents like “Pizzagate” will occur again, perhaps even inspiring the commission of more serious criminal offenses. In the era of advancing technology, the tools stated above may assist in dampening the need for legal proceedings.