Should Publishing Lies Be a Crime?

by Eric Zuesse for Ooduarere via The Saker Blog

Writing or otherwise saying lies should be civilly but not criminally illegal, but publishing lies needs to remain entirely legal unless the publisher has not practiced due diligence to exclude falsehoods.

The responsibility to avoid expressing lies is 100% the responsibility of the violator, the person who lies; but the U.S. First Amendment principle, that “Congress shall make no law … abridging the freedom of speech, or of the press” didn’t include the words “no law” by mistake, but by intent, and it meant and means exactly the same thing today as it did when the Founders wrote it. It meant that no expression can be criminal. How, then, can there be a responsibility for lies, when the government cannot prohibit lies? It’s a civil responsibility; not a criminal one.

How, exactly, does the First Amendment pertain to a person who has lied? That person has full freedom of expression, and this freedom must not be abridged; however, this freedom does not mean the individual cannot be held legally responsible for harmful consequences that a jury would rule to be reasonably attributable to that lie; and this, for example, is the reason why, even in the United States, there do exist laws against libel and slander. Those are civil not criminal laws: they grant a right to an allegedly defamed person to sue his alleged defamer for damages that the alleged sufferer allegedly experienced from the allegedly false accusation; but the state, the government, is not bringing that suit. Congress has allowed the alleged victim to sue his alleged victimizer, but the government is not involved in any other way than providing a forum in which the contest between those two parties can be judged in the government’s courts — its civil courts, not a criminal court.

What, then, about the publisher? This is where the meaning of the First Amendment’s free-speech provision is now being hotly contested, as regards such ‘publishers’ as Google, Facebook, Twitter, etc.— the new interactive(-with-the-reader) ‘publication’-media.

Two types of these cases are in the news:

One type concerns defamation against individuals and-or corporations. Those individuals or corporations have a right to sue, as a civil matter. The First Amendment provides no civil immunity, only criminal immunity. A ‘publisher’ online has the same civil obligation, in this regard, no matter whether that publisher is online or offline. However, if online and interactive, then (to the extent that it is unselective and unedited in what it distributes to the public) only the liar can be sued; the online service itself cannot be. In this sense, such an online service-provider is not being treated as being a publisher.

A publisher selects and sometimes edits or changes articles etc. that its authors produce; a service such as Google isn’t supposed to do that. It’s supposed to be content-neutral.

The major court-contests in the United States regarding libel and slander concern the old, non-interactive, highly selective, media-forms; and, there, publishers have been almost universally held non-liable, except where the publisher has been found not to have practiced “due diligence” to avoid publishing a defamatory misrepresentation. Liars themselves are always civilly liable, because they are the source of any defamatory misrepresentation. For a publisher, due diligence, to avoid or else quickly rectify any misrepresentation, is the standard.

However, if the publisher is an interactive online provider, and is only a passive medium between its authors and its audience, then only the liar himself is liable, and that is only civil, and not criminal, liability. There is no “due diligence” required of such a distributor. The legal system regarding online interactive publishers has been in effect since 1996, and is well and succinctly described here. As that shows, defamatory postings online are generally solely the responsibility of the poster, not shared with responsibility on the part of the service-provider (or ‘publisher’).

For examples: Google, Facebook, and Twitter are not expected to edit, in any way, what they ‘publish’. Only a publisher that selects its authors, and hires editors to do so and maybe even to modify what its authors say or how they say it, is to share in the obligation not to defame (libel or slander: lie against) anyone. Any ‘publisher’ that is entirely passive is not a publisher but merely a medium, a conveyance, from its authors, to its audience. (Anyone who wants to see, in more detail, the provision of U.S. law which the last link here was relying upon, can find some of those legal details regarding passive media here. As that notes: “The legal protections provided by CDA 230 are unique to U.S. law; European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books. While these countries have high levels of Internet access, most prominent online services are based in the United States. This is in part because CDA 230 makes the U.S. a safe haven for websites that want to provide a platform for controversial or political speech and a legal environment favorable to free expression.” Any non-U.S. reader here needs to be aware that duplicating CDA 230 will be essential to any country that aims to be market-competitive online against the U.S-based online services. However, as will now be discussed, those American firms might be about to lose their protection, and to become full-fledged publishers, not merely distributors.)

The other type concerns political expressions, and this is subject to rules that right now are being formed. There is massive public pressure upon the interactive online providers to censor-out unpopular political expressions. The standard here isn’t only (or even mainly) truth-falsity, but whatever anyone might find offensive or repugnant. Google, Facebook, Twitter, etc., are now hiring thousands of individuals to censor, and they also are designing, and installing into their systems, algorithms automatically censoring out, voices that those firms’ managements don’t want to reach the public. This is mega-corporate censorship (such as is routine among American publishers), not government censorship. It provides these ‘social media’ the opportunity to warp political elections (like traditional major media do) so as to produce wins for candidates who favor those corporations, and losses for candidates who don’t. But the public are nonetheless demanding it, and members of Congress — especially Democratic Party ones — seem especially eager to comply, and are holding hearings on the matter, so as to encourage (if not force) moguls such as Mark Zuckerberg of Facebook, to become the political censors that the Government itself is prohibited from being. Increasingly, the U.S. is becoming a mega-corporate dictatorship, and the public are encouraging, instead of fighting, that trend.

On November 10th, Michael Rechtenwald, of New York University, headlined at Russia’s RT News, “Only thing clear about the new Transparency Act [actually now only a bill, not an ‘Act’] is that US senators are about to let Google keep manipulating your search results”, and he reported on, and linked to, a battle now in the U.S. Congress, over whether to require political censorship by these service-providers. For example: “Google blacklists sources and prevents them from appearing in news results or featured links. Google’s blacklist is a manually curated file including over 500 websites that are excluded from news results.” Facebook has been doing this for years, just like Google and Twitter have. Legislation currently being proposed in Congress doesn’t merely allow those firms to censor the Internet, but demands that they do it. (What America’s online-service providers already are doing is to violate the protections they enjoy under CDA 230. As soon as there will be court-cases testing this, Facebook, Google and Twitter will need to backtrack on what they have been doing, or else CDA 230 will need to be amended so as to treat these firms, in the full sense, as being “publishers.”)

So: this is the hot spot, right now, about censorship in the United States. If the Government itself is prohibited, by the First Amendment, to engage in censorship; then, can the job of censorship be contracted-out, or privateered, to corporations such as Google, Facebook, and Twitter? This censorship is already being practiced, but maybe soon it will be required. This would make it even easier for incumbent politicians to crush challengers and to protect incumbents from needing to face primary contests against themselves in their own parties. Members of Congress would be able to get big from, and give big to, the internet giants. The deals would be unspoken, but no less potent than if they were in print. Congressional Republicans seem less favorable toward this trend than congressional Democrats are, because Democrats have generally received more money from those firms than Republicans have. For example: the Republican President Trump condemns “political correctness” (the imposition of censorship). Democrats have recently become even more favorable toward censorship than Republicans are (and that’s a lot).

The American public are clamoring for censorship. Who would prevent it? The only question now is whether it should be made mandatory. And everybody wants the mega-corporations to do it. Or, at least, no major organized faction are opposing it. (However, if CDA 230 doesn’t become amended, then that law might terminate the calls in Congress for officially labelling what is ‘fake news’ and what isn’t.)

The U.S. Constitution already is long-since reduced to being just a list of formalities (such as will be exemplified below). After World War II, it has become transformed, in actual practice, into, sometimes, its exact, or else approximate, opposite. Whatever remains of American democracy now is increasingly empty formalities. Not only the billionaires, but also the public, are clamoring for this change, toward a virtually irrelevant Constitution. Continuing this trend could preserve not only the current federal office-holders, but the present billionaires. It would be a mutually beneficial deal. And, as befits a dictatorship, it would be a secret political deal, in this merely formal ‘democracy’. What “the law” is and means is increasingly tenuous in America. The problem isn’t the U.S. Constitution; it’s a corrupt and corrupted Government — not only its courts, but all parts of it.

The political aspect here is divorced from the matter of truth-falsity, and allows free reign to prejudices, regardless of their truth-falsity. But unfortunately, the situation in the United States is even worse than merely that. On 25 January 2013, a Barack-Obama-appointed judge in Ohio, Timothy Black, ruled in a defamation case (Dreihaus v. SBA List) that had been brought by a former congressman, Steve Dreihaus (a fellow-Democrat), against an anti-abortion group (the Republican) Susan B. Anthony List, and Black decided, with no clearly relevant precedent (most of which precedents weren’t even about political contests, at all), that the First Amendment somehow exempts political lies (such as by that SBA group) from civil liability, so that any lie that’s been made in a political campaign is totally immune. Lying in a political campaign is now officially protected speech. Among the prior precedents cited, for example, was this statement from the U.S. Supreme Court: “The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government.” In addition to such bumper-sticker nostrums were cited cases in criminal law, though this was a case in civil law.

Judge Black, on such irrelevant grounds, ruled that,

“When one walks through the elements of a claim for defamation, the required allegations are present here. However, that precise and robotic analysis of each of the factors required for defamation caused the Court [previously] to focus only on the trees and ultimately not to see the forest. … Here, the forest is the right to free speech under the First Amendment, even false speech, when it applies to politics. Given that, as a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation [oh, really? Maybe it would be defamatory, to the particular audience that the politician is aiming to persuade], the Court hereby grants summary judgment to Susan B. Anthony List and dismisses Driehaus’s counterclaim for defamation  … Ultimately, in a free society, the truth of political back and forth must be adjudicated in the ‘marketplace of ideas’.”

This is basically like the reasoning in the now-infamous 2010 Republican U.S. Supreme Court Citizens United case, but goes beyond it by alleging that even civil  liability can’t pertain to political lying. It presumes that when dollars (such as the amount of advertising) rule, and the “marketplace of ideas” reigns over political decisions, it, somehow, cannot be corrupt. This Democratic judge invented there an exemption for political lies: they can’t be prosecuted as defamatory, no matter what the facts are.

However, actually, no democracy can be built on lies. But now, in the U.S., lies are entirely free, and their victims (which in the Dreihaus case were not only himself but the voters in his district) are a free-fire-zone for them. This is how far, from the U.S. Constitution, America has become: it’s a land where dollars rule, and voters are merely their suckers — a land where lies are free, and voters are slaves to them.

Dreihaus then took his case to the U.S. 6th Circuit Court for Appeals. The appeals Court did not confirm the argument of Judge Black, but instead argued that the billboard’s statement was possibly true, but anyway not “malicious,” and thus not defamatory. Here is the complete text of the billboard against candidate Dreihaus: “SHAME ON STEVE DREIHAUS! Dreihaus voted FOR taxpayer-funded abortion.” The Susan B. Anthony List’s argument in court was that a vote for President Obama’s Obamacare (or “Affordable Care Act”) was a vote for taxpayer-funded abortions, but the SBA List was never required in any court proceeding to provide evidence for that false allegation. The appeals Court simply ruled that the SBA List believed that (because they said they did), and so there was no malicious intent, or intent to deceive, when their billboard said it, and so, since “libel” and “slander” don’t exist if there is no “malice,” there was no defamation. So, the Appeals Court closed: “we AFFIRM the district court’s grant of summary judgment, albeit on different grounds from those relied upon by the district court.”

America’s courts are a charade, such as one typically finds in any dictatorship. Any dictatorship is based on lies; so, the right to lie in politics is essential to it. There is no system and no legal forum by which, after an election, a legal challenge can be considered regarding the winning side having possibly deceived its voters into voting for it, and the electoral result then being possibly annuled and a new election promptly held, which bans the exposed liars from participation in it. There is no democratic accountability in any dictatorship. None, actually, whatsoever.

So: the U.S. courts will do everything they can to allow lies in political campaigns. There is no requirement for an alleged liar to prove that what he said is true, and there is no requirement for a publisher (in this case the billboard company) to do due diligence to avoid publishing lies — at least no such requirement in a poilitical campaign, a campaign for public office. Obviously: in such a country, ‘democracy’ is only a sham; it’s the dollars that rule there, the people do not.

And this doesn’t even touch the issue of the harms that lies can produce when they don’t criticize anyone. False advertising is an example. Lies can kill; and, when they do, should not the liar be prosecuted criminally? Though no expression should be a crime, any criminal consequences from an expression should be criminally prosecutable. The First Amendment was not intended to sever causal links, such as a lie’s consequences. But America’s Constitution-wreckers deal with one problem at a time. They haven’t yet gotten around to false advertising, fraud, etc. Here, for example, is an effective display of how a U.S. coup was misrepresented as being instead a ‘democractic revolution’; and, so, showing how how such a regime, as this, carries out its evils in foreign affairs, and not only domestically.

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Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.