Sue over fake news? Not so fast

Cops: Armed man investigating fake news story
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Story highlights

  • Paul Callan: "Pizzagate" has placed a new and more intense spotlight on the damage that false news postings can cause
  • Wild West nature of Internet has its drawbacks, but freedom of expression is hallmark of US democracy, he says

Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is "of counsel" to the New York law firm of Edelman and Edelman, PC, focusing on wrongful conviction and civil rights cases. Follow him @paulcallan. The views expressed in this commentary are his own.

(CNN)The latest controversy involving so-called fake news has left many wondering why websites that publish patently false statements on the Internet have not been prosecuted or sued for money damages. The short answer is that under existing law such lawsuits are practically impossible. And, ugly as these sites can be, it may be better that way.

Paul Callan
The arrest of Edgar Maddison Welch of Salisbury, North Carolina, on a charge of assault with a deadly weapon has brought the issue front and center in a Washington criminal case. Welch was reportedly inspired by bizarre "pizzagate" postings that have been popping up on various Internet sites falsely alleging that the Hillary Clinton campaign, and campaign manager John Podesta, were somehow linked to a child pornography ring operating out of a Washington pizza shop.
This patently absurd story has been repeatedly rejected by responsible journalists as false, while the whole sordid history of the posts -- and their total inaccuracy -- has been outlined in grubby detail on Snopes.com, a site used by many to vet suspicious stories on the Internet.
    Snopes has saved many Internet surfers from looking like idiots when they pass along some interesting but false story posted by an otherwise reliable friend. And, had Welch had the sense to vet the "pizzagate" claims before allegedly brandishing an assault weapon at the Comet Ping Pong pizza restaurant, he might not be wearing handcuffs today. Thankfully, no one was hurt or even killed in the incident, but it does place a new and more intense spotlight on the real damage that "false news" postings can, in extreme cases, cause.
    Even before this incident, an intense public discussion had been generated by claims that false news postings by anti-Hillary Clinton individuals and groups may have improperly influenced the outcome of the presidential election. Donald Trump's supporters dispute the claims as nothing more than the usual "whining" of progressives and Democrats who refuse to admit they lost fairly.
    But the President-elect himself has also indicated his frustration with current laws, stating during a campaign stop in Fort Worth, Texas:
    "One of the things I'm going to do if I win. ... I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money," Trump said.
    The reality is that there is at least some bipartisan frustration or anger at websites posting false stories, which in turn has caused many to call for websites to censor, or at the very least investigate, postings on their sites.
    Most websites voluntarily engage in some form of self-censorship, usually in cases where a posting clearly violates trademark, copyright law or involves child pornography. The reason is that prosecution under state and federal law is possible for publication of matters falling into these categories.
    However, as for other matters, such as politics and phony stories about alleged pedophile pizza parlors, as long as the website didn't research or write the story, but merely posts a story supplied by an independent third party, they have no liability under law for the story's contents -- whether it's true or patently false.
    Of course, responsible news sites that gather and compile the news rather than merely passing along the postings of others, as a matter of policy and journalistic ethics, routinely vet the reliability of factual claims in their stories.
    But other "posting" sites have the luxury of a more limited approach to vetting story reliability because of a federal law known as "The Communication Decency Act" aka "The CDA," which largely immunizes them from the laws of libel and slander that ordinarily apply to books, magazines and newspapers.
    Lawsuits are permitted for money damages when the press knowingly or negligently publishes false "defamatory" statements. But no such lawsuits are permitted against website service providers who permit third parties such as random citizens and organizations to post on their sites.
    When the CDA was passed in the early days of the Internet, the thinking was that freedom of speech and expression should be encouraged on the Internet, which was then an exciting, evolving new forum for public discussion. This freedom is reflected in consumer postings and reviews regarding cars, restaurants, television shows, movies and, of course, politicians and politics.
    True, the Wild West nature of the Internet has its drawbacks. But freedom of expression has always been a hallmark of American democracy. Even Founding Fathers Thomas Jefferson and Alexander Hamilton were known to anonymously insult one another in the newspapers and pamphlets of the day at the founding of the Republic.
    So, while citizens in North Korea, Iran, Russia, China, and even more recently Thailand, have been prosecuted for insulting their leaders, presidents or kings, in America freedom of speech gives all Americans the right to freely express their opinions in the public square or on the Internet.
    If the expression is "defamatory" or actionable under law, the author can be prosecuted or punished in a criminal or civil proceeding. But it would be a mistake to require Facebook, Twitter, Reddit or others of our many diverse websites to become state-sponsored censors of free expression. Yes, we pay a price for this freedom, but it is a price worth paying.