AUDIE CORNISH, HOST:
Fake news has played a bigger role in this past presidential election than we've seen before. And sometimes it's put real people and businesses in the middle. That's what happened to a pizzeria here in Washington, D.C., recently. But once a fake news story is out there, and the harm has been done, what can a person do about it? Well, to help us answer that question is Derigan Silver. He teaches media, First Amendment and internet law at the University of Denver. Welcome to the program.
DERIGAN SILVER: Thanks. Thanks for having me.
CORNISH: So, to begin, what legal action can someone take if they've been harmed professionally or economically by being the subject of a fake news story? Where can they start?
SILVER: So in most of these situations, the person who's been harmed is going to bring a lawsuit we call a tort. Now, a tort is a non-contractual harm between two private individuals. It's a civil lawsuit where you're alleging that one person harmed another. The most famous tort that most people know about is McDonald's hot coffee tort. And this is the famous lawsuit where the woman got a lot of hot coffee from McDonald's and got horribly burned by it and then sued the fast food chain for damages caused by the hot coffee. So any time one private individual harms another private individual, you can bring a lawsuit for a tort. So one of those torts that people can have the advantage of is called defamation. Defamation is a tort that alleges that a communication damaged your reputation.
CORNISH: And so when somebody decides I have been harmed - right? - by being the subject of such a story, who do they try to hold accountable?
SILVER: Well, they can hold accountable anybody who is communicated the defamatory statement to anybody else. That includes the person who originated the defamatory statement, but under something called the republication rule, it also includes anybody who repeated the defamatory statement. Now, simply re-tweeting a defamatory statement is probably not going to be enough to qualify for republication, but passing on information that you heard from somebody else certainly is republication. So you have some cases coming out of Texas, for example, where hundreds and hundreds of people were adding to a posting that had more and more and more defamatory content. And if you can track those people down, if you can find out those identities, then, yes, you can sue every single person who sort of adds to that defamatory statement or repeats that defamatory statement.
CORNISH: That sounds like an expensive proposition, though - right? - for the average person.
SILVER: Absolutely. And that's one of the problems with defamation law - is once the information is out there, you know, is monetary damages really what they want to recover? And should they have to be able to pay lawyers for $500 an hour in order to recover their good name from a story that is clearly made up and clearly fictitious and clearly has no basis in reality at all?
CORNISH: Is there any movement afoot to review these laws or statutes? Or - among your community - right? - of academics, how are people talking about this?
SILVER: You know, I think that fake news really has kind of all set us back a little bit. One of the ideas behind the First Amendment is that we believe in something called the marketplace of ideas - that if you let truthhood and falsity battle in the marketplace of ideas, that truth will eventually win - that we have a an assumption that people are rational, and they can determine truth from falsity. And that's kind of making us rethink these sort of basic premises behind freedom of expression - is - are we in a situation now where truth no longer matters, and people are not able to sort these things out?
Other people say, you know, the idea that truth is always going to win is idle sentimentality. The reason we have freedom of expression is not because truth will always win, but because without freedom of expression, truth has no chance of winning whatsoever. And so this has been a really challenging election for a lot of people who believe in free speech. And, you know, media law has actually come up a lot in this election, and it's something that a lot of us are thinking deeply about.
CORNISH: Derigan Silver teaches media, first amendment and internet law at the University of Denver. Thank you for speaking with us.
SILVER: Absolutely. Thank you very much for having me.
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