Hey, Seaton, where’s that lawsuit you threatened?
I decided against filing it. I don’t want to cost taxpayers a bunch of money.
Let me give you a little background.
Last week, Syrian dictator Bashar al-Assad killed dozens of Syrian rebels with chemical weapons, including women and children. The horrific images of aid workers attempting to wash chemicals from the bodies of lifeless children stunned the world.
Assad’s defense? It’s fake news.
He claimed that the images were staged. That the lifeless bodies were actually child actors. That the mainstream media reporting the murders cannot be trusted.
This is the fallout of the fake news phenomenon, and it’s just the beginning. If reports from The New York Times, The Washington Post or even The Daily Sentinel are contrived, then what’s real? Only what the government tells us? No thanks.
Assaults on a free press are the first play in any despotic regime’s playbook.
The “fake news” allegation against legitimate news organizations is now in Assad’s playbook, but it will also be used by anyone wishing to cast into doubt unflattering facts presented by an independent third party. Soon, we may not be able to discern real information from fiction. Assad, for one, is hoping so.
It was with this dark future in mind that I responded to a charge that The Sentinel peddles fake news. From my vantage, it was defamation for which there is a viable legal remedy.
When a state senator accused The Sentinel of being fake news, he was deliberately attempting to delegitimize a credible news source in order to avoid being held accountable by it. I have consulted outside counsel about the claim, and the merits remain sound.
That said, there are some non-merits-related issues that give me pause. First — and this came as a surprise to me — a member of the state Senate can have the taxpayers of Colorado fund his or her legal defense.
Second, the potential defense of legislative immunity, though without merit, is immediately appealable. That is, after losing on a motion to dismiss on the basis of legislative immunity, one can immediately appeal the denial to the court of appeals, and after losing there, to the Colorado Supreme Court. For most defenses, the loser has to wait for a final order from the trial court before appealing. This means the case would be hung up for two years (on the taxpayers’ dime) before any court hears the merits.
Finally, there is the defense that words no longer mean what they have always meant.
This is the defense that the definition of the term “fake news” has lost its objective meaning and now represents some kind of general pejorative for things we don’t like. It’s a good defense because it would mean that a label of “fake news” applied to a legitimate news organization is actually protected opinion, not defamation.
I take a dim view of this defense. It is akin to a politician asserting, “When I call my opponent a child molester, I am referring to his unpaid parking tickets. It’s what those words mean to me. It’s an eye of the beholder thing.”
Words have real meanings, and in the case of fake news, recent tangible examples. Linguists say it takes years to change the meaning of words. But when the term gets abused almost daily, who knows what a jury might say?
I would like nothing more than a legal decision defining “fake news” and a declaration that The Daily Sentinel is not a purveyor of anything fake. That said, I’m not excited to see Colorado taxpayers pick up the tab from Holland & Hart in defense of a hot-tweeting state senator.
Fighting this fake news phenomenon is a worthy struggle, but is a lawsuit the proper means in this case? Unfortunately, this issue has also taken on a political aroma. The issue, however, is not a left/right thing or Democrat/Republican thing; the stakes for each of us are far higher than the political clans we think validate and affirm us. Making this issue about politics obscures what’s really at stake.
The fake news phenomenon harms most not the reporters of news information, but the consumers of news information. Dictators like Assad use it to call into question reports of atrocities they commit. Corporate wrongdoers are using it to trash investigative reports detailing their malfeasance. We are likely to see many more examples like these to come.
Assad and those like him are more than happy to see the country that has stood as the vanguard of freedom tear down its institutions over politics.
But is a lawsuit the answer? The last thing any of us needs is a politicization of the (mostly unsoiled) judicial branch.
I recently attended a lecture by Washington Post executive editor Marty Baron (who was brilliantly depicted by Liev Schreiber in the movie “Spotlight”). Somewhere in his forceful speech, Baron said that the White House claims to be at war with the news media. The Washington Post, he said, is not at war. “We are at work.”
We at The Daily Sentinel are doing our work, which is fundamentally to inform you and our other customers about what’s going on in our area. That is our role in the republic, and we take it seriously, whatever the dictators, the would-be dictators, and the self-serving politicians might say.