“Speech is free, but lies you have to pay for.” According to Harvard Law School and WilmerHale lawyer Louis Tompros, this is the basic premise behind “counter-disinformation litigation,” or “essentially using the legal system to fight lies that are otherwise going to get a lot of traction and get a lot of attention in the public” (cbc.ca/radio/thecurrent/the-current-for-aug-5-2022-1.6542343/alex-jones-has-learned-that-speech-is-free-but-lies-you-have-to-pay-for-says-lawyer-1.6542617).
Tompros successfully represented Matt Furie, the illustrator who sued the Infowars website over its use of the Pepe the Frog cartoon character. Created for the 2006 comic book Boys Club, the Furie-described “chill frog dude” soon became the subject of feel-good internet memes. Inexplicably, in subsequent years, white nationalists co-opted the image. By the 2016 U.S. presidential election, it was being used as a mascot for the “alt-Right.” The Anti-Defamation League, which championed Furie’s campaign to reclaim the character, officially labeled it a hate symbol.
Unfortunately, Furie’s $15,000 court award has done nothing to dissuade Infowars and its founder, Alex Jones, from continuing to use any means possible to advance the white nationalist agenda. For librarians and information professionals, this has raised our disinformation alert status to critical. Infowars was declared a conspiracy site by Melissa Zimdars, associate professor, communication and media, Merrimack College (author of the often-referenced Google doc, “False, Misleading, Clickbait-y and/or Satirical ‘News’ Sources”; docs.google.com/document/d/10eA5-mCZLSS4MQY5QGb5ewC3VAL6pLkT53V_81ZyitM/preview), and categorized as having a “far right bias” by AllSides (allsides.com). Disappointingly, Infowars had more than 3 million unique users in February 2020 alone, according to the Anti-Defamation League. Although banned by Facebook and Twitter, Jones’ YouTube-linked channels also reach millions of viewers.
After declaring the Pepe the Frog settlement a “strategic victory,” due to continuing disputes, Infowars re-entered the court room, and Jones re-emerged in the spotlight at his trial for declaring that the 2012 massacre at Sandy Hook Elementary School in Newtown, Conn., was a “false flag” operation plotted by the U.S. government, with paid actors portraying the grieving parents (nytimes.com/2022/08/06/technology/alex-jones-conspiracy-theories.html). In early August 2022, Jones was ordered to pay $45.2 million in punitive damages and $4.1 million in compensatory damages to the parents of a child killed in the Sandy Hook mass shooting. He faces two other lawsuits for “repeatedly claiming the deadliest school shooting in U.S. history was a hoax.”
Jamie Abrams, law professor at American University, sees that case, Heslin v. Alex Jones (Tex. Dist. Ct., No. D-1-GN-18-001835), as a “political barometer of how much misinformation the public is willing to accept.” Speaking to Bloomberg Law, he stated, “Punitive damages are typically more of a bellwether or a barometer of where we are culturally; they are more iconic messages sending verdicts from the public to the defendant directly” (news.bloomberglaw.com/litigation/alex-jones-ordered-to-pay-extra-45-million-in-punitive-damages). Given this sentiment, we are very likely to see a significant increase in counter-disinformation litigation, as litigants use the law to fight widely shared falsehoods.
FOOT SOLDIERS IN THE WAR AGAINST FAKE NEWS
Librarians and information professionals are foot soldiers in the war against fake news (false information presented as news), mis- (false information given without an intention to cause harm), dis- (false information with an intention of malice), and mal- (false information with a partial truth to it, which is used out of context to mislead or manipulate) information. We have been adding to our content evaluation skill sets and creating a plethora of toolkits with links to fact-checkers, evaluation methodologies, and tip sheets in order to remain ever-vigilant. Largely, this has worked well for us, as we have reinforced our credibility as trusted sources of factual information from quality sources.
However, in the wake of the Alex Jones trial regarding disinformation surrounding the Sandy Hook elementary school mass shooting, as well as other litigation being brought forth by myriad companies that have filed claims in which they assert they have lost billions of dollars because of disinformation campaigns, attorneys and other stakeholders are increasingly turning to other options. When corporations believe that the effect of these campaigns is truly harmful, not only to profit but also to reputation and value, it sets a precedent for other companies, brands, and people who wind up in the crosshairs of the bad actors of disinformation to follow. Thus, a new weapon has entered the disinformation arsenal: litigation. How can librarians and information professionals best serve attorneys, paralegals, and other constituents who may resort to using this option in order to fight fake news or, conversely, defend against these allegations? First, let’s look at the landscape.
RESEARCHING DISINFORMATION IN COURT CASES
What is the key to fighting disinformation in court? With a tip of the hat to Woodward and Bernstein, “Follow the money.” According to an article in Corporate Counsel by Ferraro, Hogue, and Tompros, “courts have held that some of these suits have adequately alleged that the complained-of speech was false, not protected by the First Amendment, because the defendants acted with ‘actual malice’—acting either with knowledge that their statements were false or with reckless disregard for the truth—and resulted in damages.” Basically, if litigants are able to prove that the propagation and proliferation of disinformation is being used for improper motives, such as financial gain, they may be able to prove that there is malice behind the intent (law.com/corpcounsel/2022/02/08/the-rise-of-counter-disinformation-litigation-and-what-it-means-for-business/?slreturn=20220707140226).
In order to research these issues, librarians and information professionals can rely upon another directive: “Follow the truth.” There are several approaches that we can take to, first, stay on top of this litigation as it is filed and makes its way through the courts, and, second, become knowledgeable about the best sources of content and approaches to research. These approaches will enable us to best advise and provide intelligence and knowledge products to our constituents.
I first did a search in Westlaw’s Practical Law materials to try to find a primer on counter-disinformation suits. Searches for that term as well as fake news came up empty. The same was true on Bloomberg Law. The American Bar Association, however, issued guidance in an April 2022 article published in Litigation , v. 48, n. 3, Spring 2022 by Michael J. Gottlieb and Meryl Conant Governski (“Truth Suits: Litigating Against the Viral Spread of Disinformation”; willkie.com/-/media/files/publications/2022/truth_suits.pdf). One of the most revelatory sections of the document concerns the ability to prove that the plaintiff was damaged by the falsehoods:
“The First Amendment imposes a heavy burden on plaintiffs, particularly those who are ‘public figures’ or can be characterized as such. See N.Y. Times v. Sullivan, 376 U.S. 254 (1964). Where that is the case, the actual malice standard requires proving that the defendant had subjective knowledge of the falsity of the statements alleged to be defamatory. Pleading what someone else was thinking is not easy.” Indeed. Also, conspiracy theories impose a unique burden, as they “often require a plaintiff to invest considerable time in attempting to disprove far-fetched negatives.”
The article uses the example of “pizzagate,” an Infowars conspiracy theory pushed during the 2016 U.S. presidential campaign which claimed that Democratic nominee Hillary Rodham Clinton was running a human trafficking and child sex operation out of the basement of a Washington, D.C., pizza parlor. The article explains that “while it may seem straightforward to demonstrate that a local business does not run a pedophilia ring out of a nonexistent basement,” it is harder to disprove claims of hidden meanings in emails. For example, in the pizzagate case, proponents of this conspiracy theory used disinformation to spread the belief that “images, symbols, and words” in a hacked email account proved that the sex ring was real.