by Zach Piaker
Last week, Ari Melber, Chief Legal Correspondent at MSNBC, spoke to Columbia Law students at an event co-hosted by ACS about the unique challenges facing journalists covering the Trump administration. The current occupant of the Oval Office is reported to be a voracious consumer of cable news, which means television journalists can often speak directly to the leader of the free world—a role many are still adjusting to. Melber relayed to us his experience on the morning of Jan. 18th, when, in a Today Show segment, he fact-checked the then-president-elect’s claims of credit for domestic investments announced by General Motors and Carrier Corp., and concluded that those hiring decision had been made months, or even years, earlier.
By 7:44 a.m., @realDonaldTrump had taken note and tweeted: “Totally biased @NBCNews went out of its way to say that the big announcement from Ford, G.M., Lockheed & others that jobs are coming back... to the U.S., but had nothing to do with TRUMP, is more FAKE NEWS. Ask top CEO's of those companies for real facts. Came back because of me!”
Melber recalled feeling both empowered and disoriented watching the president-elect react in real time to his reporting, though he noted that it was important that journalists avoid becoming part of the story or allow it to affect their work. Presidents have often had a combative relationship with the press, but the nascent Trump administration has already demonstrated an extraordinarily loose relationship with the truth as well as an inclination to attack reporters for doing their job, deriding all unfavorable coverage as “fake news.” (For the record, other outlets corroborated Melber’s findings. Trump went on to mock the Today Show’s ratings, which of course prompted its own round of fact-checking.)
Anecdotes like this are particularly troubling at a time when information is easier to access than ever before, yet the truth seems harder and harder to come by. And while boastful exaggerations about job creation may be relatively innocuous, evidence-free accusations of voter fraud conspiracies are far more pernicious. Melber, who spent four years practicing First Amendment law at a major New York firm prior to joining MSNBC, drew parallels between the legal and journalism professions, both of which he sees as being driven by a zealous commitment to arriving at the truth. Both have a key role to play in educating the public under the Trump administration.
In part, this is due to the large volume of high-profile litigation that appears likely to be an omnipresent feature of the 45th presidency. Over 100,000 people livestreamed audio online from the Ninth Circuit’s recent oral argument on Trump’s travel ban, while millions more were able to tune in live on cable. Lawyers and legal journalists can help explain what is really at stake in these proceedings. However, the public education role’s importance is also due to the emergence of “fake news.”
In the months since that term entered the public consciousness, it has already been weaponized by the president to discredit mainstream news outlets that report stories he finds objectionable. Nevertheless, the phenomenon it initially described is real and corrosive to democratic debate—specifically, entities that deliberately spread false information posing as legitimate reporting, like Paul Horner, who makes tens of thousands of dollars a year spreading viral hoaxes, or the dozens of Macedonian teenagers that discovered American political partisans who eagerly consumed outlandish falsehoods that confirmed their priors during the election. These stories were impactful, especially on social media. A BuzzFeed analysis found that during the final 3 months of the presidential election, the “20 top-performing false election stories from hoax sites and hyperpartisan blogs generated 8,711,000 shares, reactions and comments on Facebook. Within the same time period, the 20 best-performing election stories from 19 major news websites generated a total of 7,367,000 shares, reactions and comments on Facebook.”
Melber suggests an alternative term: “fraud news.” In a recent piece in the New Jersey State Bar Association’s Capitol Report, Melber sketched out a framework for potential legal approaches to addressing this issue. He proposes that fraud news be subject to regulatory oversight by the Federal Trade Commission (FTC), as other forms of false commercial speech already are. Melber argues that many of these sites exist solely to make money by spreading falsehoods, not to espouse any particular point of view. He draws parallels to the FTC’s successful enforcement actions against entities that used fake news sites to peddle fraudulent weight loss products and health supplements.
The proposal raises obvious free speech concerns, particularly since the Supreme Court’s First Amendment jurisprudence suggests that political speech is especially protected. Melber argues that the FTC (and Congress) could address this by developing a framework that sticks squarely to entities devoted to false commercial speech that functions as a deceptive business practice. Purveyors of fraud news sell their product—misinformation itself—in exchange for advertising revenue generated by clicks. Melber thinks that it is possible to develop such a definition that steers clear of regulating journalists or politically engaged citizens. And any enforcement action would be limited to published articles, rather than seeking prior restraint of future pieces.
Melber’s proposal is intriguing, although the devil is in the details. One can see how quickly and easily the lines between legitimate reporting and the intentional spreading of false information can be blurred by those with a political agenda. Melber concedes that his framework could only cover lies directly tied to deceptive commercial action, which “is why even robust FTC regulation of fraud news would not (and could not) aim to ‘end’ all fraud news, let alone address any protected false speech in society.”
A healthy democracy requires robust political debate, but one grounded in a common set of facts. Whether or not the federal government takes a proactive approach in addressing deliberately deceptive commercial practices in the guise of news, lawyers and journalists will have a role to play in safeguarding the truth in our political discourse.