Sunstein Calls For Broader Use Of Defamation Lawsuit To Curtail “Pretend Information” – Thelegaltorts

Harvard Students Demand That Trump Officials Be Preemptively Barred From Campus – JONATHAN TURLEY

We recently discussed how critics of Trump seem to adopt his tactics and rhetoric as they prepare to take over the executive and possibly Congress. There is a sense of “trumpunity,” a license to use all means under the Trump administration. Now the Harvard law professor and Bloomberg columnist has added a Trump-like appeal for the use of defamation suits to combat “false news”. This demand for defamation measures against the hammer media was one of the most consistent and criticized Trump positions. The demand for such a media lawsuit is no less worrying when it comes from a liberal like Sunstein.

Like Sunstein, Trump has often called for a lawsuit to combat “false news,” a term now dangerously adopted by the left to refer to an increasing number of positions. Like “disinformation”, it is heavily charged with subjectivity. The threat to the free press is obvious and has been the basis for fundamental court rulings.

The standard for defamation of public figures and officials in the United States is the result of a decision in the New York Times over 50 years ago against Sullivan. Ironically, this is the very environment in which the opinion was written. The case came from the time of the split in the civil rights movement. The New York Times had advertised seven times alleging abuse of civil rights activists and the arrest of Martin Luther King Jr. Montgomery Public Safety Officer LB Sullivan sued for defamation and won under Alabama law. He received $ 500,000 – a big judgment for the time. Sullivan’s lawsuit was one of several civil suits brought against Nordic media under state law that reported violence against freedom marchers. The judgments posed a viable threat to the media and the average citizen when criticizing our politicians.

The Supreme Court ruled that tort law cannot be used to override the First Amendment’s protection of freedom of speech or the free press. The Court sought to give the media “breathing space” by formulating this standard that now applies to both civil servants and public figures.

Sunstein wrote a column in Bloomberg calling for lawsuits against “misinformation and false news”. He declares that “[p]The art of answering lies in a very old resource: the law of defamation. “This example is an allegation of widespread electoral fraud involving Smartmatic and Dominion voting systems.

For the taping, I wrote about Dominion, who had been sued for libel weeks earlier. I have no problem with individuals or companies suing libel, including officials and personalities. At the disastrous press conference by the Trump legal team, I was extremely critical of conspiracy theories that Rudy Giuliani and Sidney Powell had put forward without support.

Sunstein goes further, however, to understand the defamation as part of a sweeping attack by the left against freedom of expression. First, he does not respond to the lawsuit that I brought against the lawyers who brought these claims out of court. Rather, he supports a lawsuit against all media outlets that have expressed views that indicate agreement with the theories. Sunstein wants large corporations to sue contributors, commentators, or columnists who express their own belief that such manipulation of computer systems could occur. The clear purpose is to reassure anyone who makes people like Sunstein express views that are considered “misinformation.” Sunstein says:

“Let’s say it might be difficult to show that the folks at Fox, Newsmax, and One America News actually knew they were promoting stories that aren’t true. If so, it is relatively easy to argue that what they said about Smartmatic and Dominion was “ruthlessly indifferent” to the question of truth or falsehood. “

“Really?” The action would be against the news media because the numbers could agree with Powell and others’ arguments that these systems could be tampered with. These are views that have a clear technical basis. Many of us criticized the theories for failing to explain how the paper record, after official recounts, matched the electronic count. However, there is a lot of such controversy with a mixture of legal, political and technical elements. These are systems that were new to many jurisdictions and certainly new to many commentators and citizens. This is a dangerous area where defamation law is used to deter people from voicing their views on the elections and the legitimacy of the results.

Second, Sunstein calls for an even broader application. He recognizes that he is using a language protection doctrine to restrict language.

“This is deeply ironic, because the verdict was originally intended to provide a protective shield, offering journalists, broadcasters, and speakers of all kinds comprehensive protection from the theory that most false statements are relatively innocent. In the court’s obvious view, “knowing” lies would be quite rare – and even recklessness would be unusual.

That was then and that is now. “

It’s that simple. When the New York Times worked against Sullivan to protect the interests favored by the Democrats, it was inviolable as a shield. Now, however, they want to use it to keep others from speaking. “as a powerful weapon not only against those who sell lies, but also against those who ignore the truth. “Of course, there are many ways for people like Sunstein to simply counteract such views. use their own freedom of speech to combat what they consider bad speech. In fact, most of us heard experts on the subject and rejected the theories. However, this is not about fighting bad language, but about preventing language in general. As Sunstein explains, “it is becoming increasingly clear that in self-preserving democracies, victims of harmful lies need and deserve a sword.”

The call is all too familiar to Free Speech Members. Many leftists have spoken out in favor of censorship and language crimes, particularly to restrict language on the internet and social media. Indeed, some have accepted China’s position in such language checks. Biden has selected one of the most outspoken anti-free speech figures for a key position on his transition team. The calls also reflect the European perspective that has destroyed freedom of expression on this continent. We previously discussed the alarming withdrawal of freedom of speech in the West. It’s a trend that now seems to be gaining support in the media celebrating French President Emmanuel Macron’s speech to Congress calling on the United States to follow Europe’s model of hate speech.

In January, Biden called for increased voice control on the Internet and condemned Twitter for allowing others to speak freely. I insisted that tolerating such views in the name of free speech is the same as “spreading lies that they know are wrong”. Biden urged companies to ban Trump’s views on things like mail-in-voting as a solicitation of fraud. He is not alone. Congressional leaders such as House Intelligence Committee Chairman Adam Schiff have called for material to be flagged and removed, with some members threatening direct crackdown on legislation. This week, spokeswoman Nancy Pelosi condemned Facebook CEO Mark Zuckerberg for opposing voice surveillance and censorship for reasons of freedom of speech. Pelosi pointed out that those who want to maintain a free speech zone are “just making money” and ignore free speech advocates who have no financial interest in these companies. Pelosi said opting out of such surveillance means that social media companies are simply “trying to make money at the expense of the truth and the facts” and trying to “hide under freedom of expression.”

These efforts build on the work of scholars pushing for greater censorship and language control. The Atlantic published an article by Jack Goldsmith, professor at Harvard Law School and Andrew Keane Woods, professor of law at the University of Arizona calling for Chinese censorship of the Internet. They stated that “in the great debate over the past two decades about freedom versus control of the network, China was largely right and the United States largely wrong” and “significant surveillance and voice control are inevitable parts of a mature and thriving Internet that governments must agree to These practices play a major role in ensuring that the Internet is compatible with the norms and values ​​of society. “

Sunstein’s call to use defamation as a sword rather than a shield would add another weapon to this sweeping attack on free speech. Restricting freedom of speech has now become trendy in academic circles. Freedom of expression is increasingly seen not as a goal to be protected in our constitutional system, but as a danger to be combated. Indeed, it seems to many that you may not be fully awakened unless you are willing to deny others freedom of speech or academic freedom.

Sunstein is right in trying to turn the New York Times into a sword rather than a shield against Sullivan. That sword will then improve freedom of speech, not lies. In fact, the restriction on freedom of speech will only serve to protect false statements. With the threat of corporate censorship and litigation, there will be a chilling effect on those willing to question majority views or, in the case of media companies, willing to express such opposing views. That is the point of putting down all those “swords” views that you no longer want to hear.