206 ARIZONA LAW REVIEW [VOL.

61:205

4. Satire ...................................................................................................... 212

C. How Fake News is Spread.......................................................................... 213
II. MAINSTREAM MEDIA ....................................................................................... 214
A. Modern Media and the 24-Hour News Cycle ............................................ 214
B. Media and the Internet ................................................................................ 216
C. The Mixed-Media Culture, 24-Hour News Cycle, and the Internet Combine
to Create Credibility Issues for the Mainstream Media. .......................... 217
III. DEFAMATION .................................................................................................. 219
A. Modern Tort Laws of Defamation ............................................................. 219
B. Sullivan’s Roots in the Civil-Rights Movement ......................................... 221
C. Defamation after Sullivan ........................................................................... 223
IV. SOLUTION ....................................................................................................... 225
CONCLUSION ........................................................................................................ 230

I. FAKE NEWS
“Fake news” and its role in the 2016 election has been a subject of national
discussion.1 During the lead-up to the election, many pundits predicted a landslide
victory for Hillary Clinton,2 and President Trump’s victory caught many, including
his own campaign, by surprise.3 As many try to make sense of the results, experts
have begun to investigate the role fake news may have played.4 Regardless of the
connection between fake news and the 2016 election, the public’s confidence in the
media reporting the news “fully, accurately and fairly” has reached its lowest level
in polling history.5 Increasingly, Americans believe that the mainstream press is
publishing fake news.6

1. Mark Verstraete et al., Identifying and Countering Fake News 4 (Arizona

Legal Studies, Working Paper No. 17-15, 2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3007971.
2. Natalie Jackson, HuffPost Forecasts Hillary Clinton Will Win
with 323 Electoral Votes, HUFFPOST (Nov. 7, 2016, 6:51 PM),
https://www.huffingtonpost.com/entry/polls-hillary-clinton
-win_us_5821074ce4b0e80b02cc2a94.
3. Karen Tumulty et al., Donald Trump Wins the Presidency in Stunning Upset
Over Clinton, WASH. POST (Nov. 9, 2016),
https://www.washingtonpost.com/politics/election-day-an-acrimonious-race-reaches-its-end
-point/2016/11/08/32b96c72-a557-11e6-ba59-a7d93165c6d4_story.html?utm_term
=.250043d5628c.
4. Kathryn Perrott, ‘Fake News’ on Social Media Influenced US Election Voters,
Experts Say, ABC (Nov. 14, 2016), http://www.abc.net.au/news/2016-11-14/fake-news-
would-have-influenced-us-election-experts-say/8024660.
5. Leandra Bernstein, Poll: Mainstream Media Continues to Lose the Public’s
Trust, SINCLAIR BROADCAST GROUP (Feb. 17, 2017), http://wjla.com/news/nation-
world/main-stream-media-continue-to-lose-the-publics-trust.
6. Sharyl Attkisson, Americans Don’t Trust the Media, and for Good Reason,
THE HILL (Aug. 18, 2017, 11:21 AM), http://thehill.com/blogs/pundits-blog/media/347091-
americans-dont-trust-the-media-and-for-good-reason.
2019] DEFAMATION AND FAKE NEWS 207

As Nelson Mandela observed, a critical, independent, and investigative

press is the “lifeblood” of a democracy. 7 If his observation is accurate, then the
United States faces a serious problem as fake news threatens the legitimacy of the
democratic institutions upon which the United States was founded. If the public
cannot trust the stories news organizations produce, then a critical, independent, and
investigative press is useless. The prospect of fake news directly affecting our civil
institutions fundamental to the United States, such as our election system, is also
very concerning. Therefore, this Note will examine what fake news is, the role of
the modern press in society and the spread of fake news, defamation and its
shortcomings in preventing fake news, and finally this Note will propose a solution
to preventing fake news while still maintaining the freedom of the press.
A. Defining Fake News
The term fake news has come to encompass a number of concepts with
varying definitions.8 In their report on fake news, University of Arizona James E.
Rogers College of Law faculty defined fake news to include various related concepts
such as satire, propaganda, trolling, and hoaxes. 9 One study from Yale defined fake
news as articles that are intentionally and verifiably false. 10 This study specifically
excluded news stories that contain false facts that the study categorized as
“unintentional reporting mistakes” from its definition of fake news.11 For example,
the study listed a report regarding a Martin Luther King, Jr. bust in the Oval Office
as an example of an unintentional reporting mistake. 12 On January 20, 2017, Time
reporter Zeke Miller reported that the Trump White House removed the bust of
Martin Luther King, Jr. from the Oval Office because Miller “had looked for it and
not seen it.”13 A half hour later, when Miller began receiving more inquiries about
the missing bust, he asked a White House staff member about the location of the
bust.14 The bust had been in the Oval Office the entire time. 15
Buzzfeed recently published an article containing analysis and research on
fake news that received much attention.16 The Buzzfeed article showed that during
the 2016 election, the 20 most popular fake news stories outperformed the 20 most
popular real news stories based on shares, reactions, and comments on Facebook. 17

7. Nelson Mandela, Address by Nelson Mandela to the International Press

Institute Congress, NELSON MANDELA FOUND. (Feb. 14, 1994),
http://www.mandela.gov.za/mandela_speeches/1994/940214_press.htm.
8. Verstraete et al., supra note 1, at 5.
9. Id. at 5–7.
10. Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016
Election, 31 J. ECON. PROSPECTIVES 211, 213 (2017).
11. Id. at 214.
12. Id.
13. Nancy Gibbs, A Note to Our Readers, TIME (Jan. 24, 2017),
http://time.com/4645541/donald-trump-white-house-oval-office/.
14. Id.
15. Id.
16. Allcott & Gentzkow, supra note 10, at 214; Verstraete, supra note 1, at 6.
17. Craig Silverman, This Analysis Shows How Viral Fake Election News Stories
Outperformed Real News on Facebook, BUZZFEED (Nov. 16, 2016),
208 ARIZONA LAW REVIEW [VOL. 61:205

Buzzfeed’s analysis found that 17 of the top 20 most popular fake news stories were
overtly pro-Donald Trump or anti-Hillary Clinton.18 Another of Buzzfeed’s surveys
found that most Americans who remembered a fake news headline viewed the story
as credible.19 These facts led multiple commentators to suggest that Donald Trump
won the 2016 election due to the influence of fake news. 20
As such, researchers generally limit their analyses of fake news to websites
dedicated to producing fictitious news articles and usually do not look at the role
mainstream-media outlets have in disseminating fictitious news stories. 21 While fake
news is generally associated with online sources, 22 fake news stories also find their
way into more traditional and mainstream media sources.23 Although websites
dedicated to producing fictitious news that swayed the 2016 election have been the
familiar narrative,24 it is important not to discount the powerful role mainstream
media plays in today’s political discourse.
To begin, the digital footprint of fake news is relatively small compared
with the vast amount of information on the Internet. For instance, it was widely
reported that fake Facebook accounts traced to Russian sources purchased $100,000
in political advertisements during the 2016 election. 25 These Facebook
advertisements, numbering over 3,000, focused on divisive social issues and ran
between June 2015 and May 2018.26 However, during the fourth quarter of 2016,
Facebook’s advertising revenue was $8.81 billion, or roughly $96 million a day. 27
Together, the fake ads accounted for roughly 0.1% of Facebook’s daily advertising
revenue.28 The $100,000 in Russian political ads proves to be even more trivial when

https://www.buzzfeed.com/craigsilverman/viral-fake-election-news-outperformed-real-
news-on-facebook.
18. Id.
19. Craig Silverman & Jeremy Singer-Vine, Most Americans Who See Fake News
Believe It, New Survey Says, BUZZFEED (Dec. 6, 2016, 8:31 PM),
https://www.buzzfeednews.com/article/craigsilverman/fake-news-survey.
20. Allcott & Gentzkow, supra note 10, at 212.
21. Id. at 214; Verstraete et al., supra note 1, at 4–7; Silverman, supra note 17.
22. Allcott & Gentzkow, supra note 10, at 217.
23. See Daniel Payne, 16 Fake News Stories Reporters Have Run Since Trump
Won, THE FEDERALIST (Feb. 6, 2017), http://thefederalist.com/2017/02/06/16-fake-news-
stories-reporters-have-run-since-trump-won/.
24. Duncan Watts & David Rothschild, Don’t Blame the Election on Fake News.
Blame It on the Media., COLUM. JOURNALISM REV. (Dec. 5, 2017),
https://www.cjr.org/analysis/fake-news-media-election-trump.php.
25. Scott Shane & Vindu Goel, Fake Russian Facebook Accounts Bought
$100,000 in Political Ads, N.Y. TIMES (Sept. 6, 2017),
https://www.nytimes.com/2017/09/06/technology/facebook-russian-political-ads.html.
26. Id.
27. Josh Constine, Facebook Beats in Q4 with $8.81B Revenue, Slower Growth to
1.86B Users, TECH CRUNCH, https://techcrunch.com/2017/02/01/facebook-q4-2016-earnings/
(last visited Jan. 21, 2019).
28. Watts & Rothschild, supra note 24.
2019] DEFAMATION AND FAKE NEWS 209

compared to the $2.65 billion spent on the presidential election and the $6.8 billion
spent on all federal elective offices.29
Buzzfeed did show that the top-20 fake news stories generated more
engagement on Facebook than the top-20 real news stories.30 These fake news
stories generated over 8.7 million shares, reactions, and comments on Facebook
from August 1, 2016 until Election Day. 31 However, it helps to again place these
findings in perspective. Facebook had over 1.8 billion users in 2016. 32 If each one
of these 1.8 billion users took a single action (share, like, etc.), then the 20 most
popular fake stories would only account for 0.006% of user actions.33
Even outside of news stories, the impact of Russian-linked fake election
news was small when compared with the vast sea of information that is on the
Internet. Although there were 3,814 Kremlin-connected Twitter accounts posting
almost 176,000 tweets during the 2016 election, 34 this is a small fraction of the 328
million active Twitter users.35 Less than 1% of the U.S. population viewed the
Kremlin-connected tweets.36 Additionally, tweets from Russian-linked accounts
represented less than 0.75% of all 2016 election-related tweets.37 Fake Russian
videos on YouTube received around 309,000 total views, accounting for less than a
fraction of the 5 billion YouTube videos that are watched every day. 38 While
inflammatory posts distributed by Russian agents reached 126 million users on
Facebook,39 this represents only 7% of Facebook’s worldwide users. 40
Despite all the attention paid to fake news websites, a Harvard and MIT
study showed that mainstream news services like The New York Times, The
Washington Post, and CNN continue to dominate the media ecosystem. 41 Only

29. Jonathan Berr, Election 2016’s Price Tag: $6.8 Billion, CBS NEWS
(Nov. 8, 2016, 5:56 PM), https://www.cbsnews.com/news/election-2016s-price-tag-6-8-
billion/.
30. Silverman, supra note 17.
31. Id.
32. Constine, supra note 27.
33. Watts & Rothschild, supra note 24.
34. Yoree Koh, Twitter Reveals 1,000 More Accounts Tied to Russian
Propaganda Agency, WALL ST. J. (Jan. 19, 2018, 9:20 PM),
https://www.wsj.com/articles/twitter-reveals-1-000-more-accounts-tied-to-russian-
propaganda-agency-1516414856?mod=e2fb.
35. Daniel Sparks, How Many Users Does Twitter Have, MOTLEY FOOL (Apr. 27,
2017, 11:06 AM), https://www.fool.com/investing/2017/04/27/how-many-users-does-
twitter-have.aspx.
36. Koh, supra note 34.
37. Watts & Rothschild, supra note 24.
38. Id.
39. Mike Isacc & Daisuke Wakabayashi, Russian Influence Reached 126 Million
Through Facebook Alone, N.Y. TIMES (Oct. 30, 2017),
https://www.nytimes.com/2017/10/30/technology/facebook-google-russia.html.
40. Constine, supra note 27.
41. Rob Faris et al., Partisanship, Propaganda, and Disinformation: Online
Media and the 2016 U.S. Presidential Election, BERKMAN KLEIN CTR. FOR INTERNET & SOC’Y
HARV. U. (Aug. 16, 2017), https://cyber.harvard.edu/publications/2017/08/mediacloud.
210 ARIZONA LAW REVIEW [VOL. 61:205

Breitbart News, a far-right news and opinion website,42 and the Huffington Post had
a presence in the media landscape comparable to or larger than mainstream news
services.43
Overall, fake news stories from websites that primarily produce fictitious
news would need to be 30 times more influential than a standard TV campaign ad
to account for Trump’s margin of victory. 44 Some researchers suggest that the
mainstream media, and its focus on “horserace or personal issues” rather than policy
issues, was a much bigger factor in the 2016 election given the relatively minimal
reach of websites and social-media accounts producing fictitious news stories.45 So
while websites that primarily produce fake news are problematic, any solution
addressing fake news should also keep in mind the powerful role mainstream news
services play in the modern media landscape. As such, this Note will use a broad
definition of fake news to include articles or stories that are verifiably false.
B. Why is Fake News Produced?
Fake news is produced for several reasons. Some producers are driven by
political or ideological motivations.46 Other producers, usually state sponsored,
engage in the production of fake news for propaganda purposes. 47 Others are driven
purely by a desire for profits or a combination of the above reasons. 48
1. Ideological Motivations
Some fake-news producers are driven by ideological goals. Colorado-
resident Justin Coler owns a fake-news company called “Disinfomedia” and
originally set out to highlight the extremism of the “alt-right.”49 Coler wanted to
publish blatantly fictional stories that would infiltrate “the echo chambers of the alt-
right” so he could denounce those stories as false and discredit right-wing media
outlets.50 Disinfomedia now owns many fake news websites with realistic sounding
names, such as NationalReport.net, USAToday.com.co, and
WashingtonPost.com.co.51 One of the top-five most popular fake news stories from
the 2016 election—a report that an FBI agent’s investigation of Hillary Clinton’s e-
mails was killed in a murder-suicide—came from Disinfomedia’s website

42. Jessica Roy, What is the Alt-Right? A Refresher Course on Steve Bannon’s
Fringe Brand of Conservatism, L.A. TIMES (Nov. 14, 2016, 5:45 PM),
http://www.latimes.com/nation/politics/trailguide/la-na-trailguide-updates-what-is-the-alt-
right-a-refresher-1479169663-htmlstory.html.
43. Faris et al., supra note 41.
44. Economist Calculates Impact of Fake News on Trump’s Election, NPR
(Jan. 23, 2017), https://www.npr.org/2017/01/23/511267145/economist-calculates-impact-
of-fake-news-on-trumps-election.
45. Watts & Rothschild, supra note 24.
46. See infra Subsection I.B.1.
47. See infra Subsection I.B.2.
48. See infra Subsection I.B.3.
49. Laura Sydell, We Tracked Down a Fake-News Creator in the Suburbs. Here’s
What We Learned, NPR (Nov. 23, 2016, 3:31 PM),
https://www.npr.org/sections/alltechconsidered/2016/11/23/503146770/npr-finds-the-head-
of-a-covert-fake-news-operation-in-the-suburbs.
50. Id.
51. Id.
2019] DEFAMATION AND FAKE NEWS 211

DenverGuardian.com.52 Although Coler claims to have a purely ideological

motivation, he has built a fake-news empire that employs 20–25 writers and likely
makes between $10,000 and $30,000 a month. 53
Similarly, a Romanian named Ovidiu Drobota runs the website called
“Ending the Fed” because he is an ideological supporter of Donald Trump. 54 Ending
the Fed publishes a mix of factual articles with a partisan slant, along with entirely
false articles.55 The stories are often copied verbatim from other websites. 56 Drobota
claims his website is “cracking down” on fake news, but his method entails cross-
referencing against other conservative websites like InfoWars, Western Journalism,
and Conservative Tribune.57 Ending the Fed was responsible for three out of the top-
five fake news stories ranked by engagement on Facebook during the 2016
election.58
2. State-Sponsored Propaganda
Government propaganda produces some of the other ideological-driven
fake news sites. A British Parliament report warned that Russia and China were
using their understanding of “mass psychology” to influence public opinion. 59 For
example, the Russian government formed a cable news network called Russia
Today, now known as “RT,” to improve Russia’s image abroad.60 RT America, the
name of RT’s U.S. operation, took on an antiestablishment leaning, covering
antiglobalization, libertarian, and Occupy Wall Street movements. 61 RT “nudged
along” existing conspiracy theories, such as Hillary Clinton’s failing health, a
Google plan to rig the election for Clinton, the existence of the Illuminati, and the
theory that Democratic National Committee staff-member Seth Rich was murdered
because he was behind the leaked DNC emails that WikiLeaks distributed in 2016.62
It is hard to refute these stories because conspiracy theories, by definition, are
difficult to verify as true or false.63 Regardless, the Department of Justice asked RT
America to register as a foreign agent under the Foreign Agents Registration Act.64
The lack of verifiable fake news stories spread by Russian outlets in the
United States is notable because Russian outlets spread such fake news stories in

52. Silverman, supra note 17. Buzzfeed’s graphic shows the story had 567,000
engagements three months prior to the election. Id.
53. Sydell, supra note 49.
54. Tess Townsend, The Bizarre Truth Behind the Biggest Pro-Trump Facebook
Hoaxes, INC. (Nov. 21, 2016), https://www.inc.com/tess-townsend/ending-fed-trump-
facebook.html.
55. Allcott & Gentzkow, supra note 10, at 217.
56. Townsend, supra note 54.
57. Id.
58. Silverman, supra note 17.
59. Jim Rutenberg, RT, Sputnik and Russia’s New Theory of War, N.Y. TIMES
(Sept. 13, 2017), https://www.nytimes.com/2017/09/13/magazine/rt-sputnik-and-russias-
new-theory-of-war.html.
60. Id.
61. Id.
62. Id.
63. Allcott & Gentzkow, supra note 10, at 214.
64. Rutenberg, supra note 59; see also 22 U.S.C. § 611.
212 ARIZONA LAW REVIEW [VOL. 61:205

other countries. Russian government-sponsored news organizations ran stories in

Germany alleging Arab migrants raped a 13-year-old Russian-German girl and that
the German police were covering it up. 65 The stories implied that Angela Merkel,
the Chancellor of Germany, refused to address immigrant-committed crimes while
simultaneously opening German borders to hundreds of thousands of migrants. 66
This resulted in a number of protests.67 Although RT America has not spread similar
fake news stories in the United States, these examples are illustrative of the damage
such an outlet could cause.
3. Financial Gain
Some websites are dedicated to the production of fake news articles for
financial reasons.68 For example, teenagers in Macedonia ran over 100 U.S. political
websites promoting pro-Trump fake news stories with sensational headlines to
generate ad revenue.69 The Macedonians running the sites say their motive was
purely financial and had nothing to do with Trump; the fractions of a cent per ad-
click can add up to significant amounts of money for a teenager in Macedonia. 70
4. Satire
Some fake news is produced primarily for satirical purposes. 71 Probably
the most well-known example of this is The Onion, a website that presents factually
untrue stories as a vehicle for critique and commentary. 72 Generally, The Onion
articles are easily detected as satire, and typically only people unfamiliar with U.S.
media norms take them at face value. 73 However, not all satirical websites are
universally detected by the general public. For example, the U.S.-based satirical
website “National Report” ran several fake news stories that went viral during the
2016 election.74 Donald Trump’s campaign manager even tweeted a link to a

65. Id.
66. Id.
67. Id.
68. Allcott & Gentzkow, supra note 10, at 217.
69. Craig Silverman & Lawrence Alexander, How Teens in the Balkans Are
Duping Trump Supporters with Fake News, BUZZFEED (Nov. 3, 2016),
https://www.buzzfeed.com/craigsilverman/how-macedonia-became-a-global-hub-for-pro-
trump-misinfo.
70. Id.
71. Verstraete et al., supra note 1, at 4–5.
72. Id.
73. Id.
74. See Caitlin Dewey, Facebook Fake-News Writer: “I Think Donald Trump Is
in the White House Because of Me”, WASH. POST (Nov. 17, 2016),
https://www.washingtonpost.com/news/the-intersect/wp/2016/11/17/facebook-fake-news-
writer-i-think-donald-trump-is-in-the-white-house-because-of-
me/?utm_term=.ff7c1c7838e3 [hereinafter Dewey, Fake-News Writer]; Caitlin Dewey, This
Is Not an Interview with Banksy, WASH. POST (Oct. 22, 2014),
https://www.washingtonpost.com/news/the-intersect/wp/2014/10/21/this-is-not-an-
interview-with-banksy/?utm_term=.396131075a3b (noting Paul Horner as the lead writer for
the National Report).
2019] DEFAMATION AND FAKE NEWS 213

National Report story that protestors were being paid $3,500 to attend anti-Trump
rallies.75
The problem with satire websites is that their satirical nature is not always
apparent. The National Report, which lacks the notoriety of The Onion, previously
labeled its website “America’s #1 Independent News Source.”76 The website had a
disclaimer that “all news articles contained within National Report are fiction”;
however, the disclaimer was located on a separate page unlinked to its main page or
the individual articles.77 The same issue arose with the fake news story that the Pope
had endorsed Donald Trump for president. WTOE 5 News, the now-defunct satirical
website that generated the story, contained a separate “About” page warning that it
was a fantasy-news website, but the article itself did not contain the disclaimer. 78
Ending the Fed subsequently picked up that story, which became one of the top-ten
false election stories.79
C. How Fake News is Spread
Fake news is primarily spread via social-media platforms for various
reasons.80 First, for websites dedicated to producing fake news, the costs are low to
enter the media market via social media.81 Second, social media displays content in
a format favorable to fake news: thin slices of information often viewed on phones
or news-feed windows make it difficult to judge the validity of an article. 82 Third,
Facebook “friend networks” are often segregated along ideological lines, and people
are more likely to read and share articles that align with their ideological positions. 83
These ideological networks, known as “filter bubbles,” make it harder for people to
get access to accurate information.84
As a result, websites that primarily produce fake news rely on social media
for over 40% of their website visits, whereas mainstream news websites rely on
social media for only 10% of their visits. 85 The prevalence of fake news on social

75. Dewey, Fake-News Writer, supra note 74. Interestingly, the creator of the
National Report claims to hate Donald Trump. Id.
76. Tom Mckay, Interview with “Allen Montgomery,” Founder of the Hoax Site,
National Report, DAILY BANTER (Oct. 20, 2014),
https://thedailybanter.com/2014/10/national-report/. The National Report has now rebranded
itself “America’s Lousiest Independent News Source” on its main page. NATIONAL REPORT,
http://nationalreport.net/ (last visited Feb. 3, 2019).
77. Disclaimer, NATIONAL REPORT, http://nationalreport.net/disclaimer/ (last
visited Jan. 20, 2018).
78. Allcott & Gentzkow, supra note 10, at 217.
79. Silverman, supra note 17.
80. Allcott & Gentzkow, supra note 10, at 221.
81. Id.
82. Id.
83. Id. One study found the median share of friends with opposing political
ideology is only 18%–20%. Id.
84. Kevin Delaney, Filter Bubbles Are a Serious Problem with News, Says Gates,
QUARTZ (Feb. 21, 2017), https://qz.com/913114/bill-gates-says-filter-bubbles-are-a-serious-
problem-with-news/.
85. Allcott & Gentzkow, supra note 10, at 222.
214 ARIZONA LAW REVIEW [VOL. 61:205

media is concerning because 62% of U.S. adults get their news from social media.86
Two-thirds of Facebook users get news on that site; 59% of Twitter users get news
on Twitter; and 7 in 10 users of Reddit, a social news aggregation and discussion
website, get their news from that platform.87
II. MAINSTREAM MEDIA
As discussed above, the mainstream media still holds tremendous power in
the nation’s political discourse. Therefore, this Note will examine the issues facing
the modern media and the roles they play in the appearance of fake news stories in
the mainstream media.
A. Modern Media and the 24-Hour News Cycle
Prior to the 24-hour news cycle that emerged in the 1980s, most Americans
received their news from a handful of sources; usually, a handful of daily
newspapers and weekly news magazines.88 Wealthy families primarily owned the
main newspapers with an altruistic mission beyond merely turning a profit. 89 These
news organizations had relatively significant amounts of time, 24 hours or a week,
between publications to reach conclusions about the validity and significance of
stories to be published.90 Beginning in the 1960s, Americans increasingly turned to
broadcast media for their news.91 However, most outlets were not even expected to
turn a profit, being run at a loss in profits to promote the rest of the network.92 By
1980, 90% of television viewers tuned into nightly news broadcasts by ABC, CBS,
or NBC for their news.93
In 1980, Ted Turner launched an upstart news service called the Cable
News Network that became the first news channel in the world to offer 24-hour news
coverage.94 Initially, other news executives, who felt the news was “best served up
at fixed points of the day in heavily crafted and refined news broadcasts,” wrote off
the concept.95 However, in 1991, CNN scored a major journalistic victory when it
broadcasted the bombing of Iraq live from Baghdad.96 Other news services, and even

86. Jeffrey Gottfried & Elisa Shearer, News Use Across Social Media Platforms
2016, PEW RES. CTR. (May 26, 2016), http://www.journalism.org/2016/05/26/news-use-
across-social-media-platforms-2016/.
87. Id.
88. David A. Logan, All Monica, All of the Time: The 24-Hour News Cycle and
the Proof of Culpability in Libel Actions, 23 U. ARK. LITTLE ROCK L. REV. 201, 201–02
(2000).
89. James Fallows, Rush from Judgment, AM. PROSPECT (Mar.–Apr. 1999),
https://prospect.org/article/rush-judgment-0.
90. Logan, supra note 88, at 202.
91. Id.
92. Fallows, supra note 89.
93. Douglas Hindman & Kenneth Wiegand, The Big Three’s Prime-Time Decline:
A Technological and Social Context, 52 J. BROADCASTING & ELECTRONIC MEDIA 119, 119
(2008).
94. Chris Cramer, Why the World is Watching CNN, CNN (2005),
http://www.cnn.com/services/opk/cnn25/cnns_impact.htm.
95. Id.
96. Howard Rosenberg, ‘Baghdad’: When CNN Was the News, L.A. TIMES, (Dec.
6, 2002), http://articles.latimes.com/2002/dec/06/entertainment/et-howard6.
2019] DEFAMATION AND FAKE NEWS 215

the then-Secretary of Defense Dick Cheney, turned to CNN for up-to-date

information about the Gulf War.97 CNN received the highest ratings of all the
networks during the Gulf War and demonstrated that 24-hour news coverage was
more than just a market niche. 98 Fox, MSNBC, and other networks soon copied the
24-hour news cycle.99
This new 24-hour news cycle replaced the traditional journalism culture
that favored verification with what has been deemed a “mixed media culture.”100
Mixed-media culture is marked by several characteristics: (1) a never-ending news
cycle in which the need to fill hundreds of hours and thousands of pages per week
results in reports of allegations without the traditional concern for verification; (2) a
race to the ethical bottom where lower standards from fringe journalists, such as
gossip websites, push mainstream-news organizations to report on allegations or
otherwise lose viewers and the revenue that comes with them; and (3) a desire for
news organizations to report “blockbuster” stories containing large doses of
scandal.101
This mixed-media culture is also promoted by the fact that news
organizations are increasingly woven into larger conglomerates or large
corporations that own numerous companies involved in mass-media production and
distribution. In 1983, about 50 media conglomerates controlled more than half of all
news organizations.102 By 1986, that number had shrunk to 29 conglomerates.103 As
of 2000, ten multinational media conglomerates dominated most American news
organizations.104
As large conglomerates gobble up news organizations, they become just
another profit center within that conglomerate. 105 As a result, many news
organizations are competing head-to-head with tabloids and entertainment news
services (People, Entertainment Weekly, etc.) in an industry with falling market
shares.106 Competing with tabloids for market shares is likely to perpetuate the
mixed-media culture, which forces mainstream-news organizations to abandon
traditional journalism ethics of story verification. 107

97. Id.
98. Logan, supra note 88, at 202.
99. Id.
100. BILL KOVACH & TOM ROSENSTIEL, WARP SPEED: AMERICA IN THE AGE OF
MIXED MEDIA 6–8 (1999).
101. Id.
102. Paul Wellstone, Growing Media Consolidation Must be Examined to Preserve
Our Democracy, 52 FED. COM. L.J. 551, 552 (2000).
103. Id.
104. Id.
105. Logan, supra note 88, at 204.
106. Fallows, supra note 89.
107. See KOVACH & ROSENSTIEL, supra note 100, at 6–8.
216 ARIZONA LAW REVIEW [VOL. 61:205

B. Media and the Internet

Like almost all industries, the Internet has radically altered the environment
in which reporters and editors work. 108 As Andrew Glass, a correspondent for Cox
Broadcasting, observed:
In the old days, on the first day we would report what happened. On
the second day, we would tell what the reaction was. On the third day,
we would analyze what it means. Now CNN tells you what happened
and five minutes later some Professor from Fordham University is
telling you what it means.109
Widespread use of the Internet now puts numerous news websites at the
fingertips of consumers.110 When news occurs, the Internet serves as a primary
means for seeking information because of its accessibility, convenience, breadth of
data, and ability for the end-user to control specificity and customization of the
news.111 The Internet has become the ultimate extension of the 24-hour news cycle:
news is no longer a finite product delivered at a set time to your house via newspaper
or television; news is now an “infinite, continual source that can be accessed on
demand.”112
The Internet also poses a series of issues for reporters about breaking
news.113 Traditionally, news organizations were able to rely on the wire-service
doctrine when dealing with breaking news. 114 The wire-service doctrine protects
local news organizations from defamation claims if they reproduced, without
substantial change or knowledge of falsity, a wire release by a reputable news-
gathering agency.115
This doctrine would probably not protect republishing information found
on a social-media site, blog, or personal webpage.116 First, an internet website or
posting would probably not qualify as a “reputable wire service.”117 Second, because
the news organization is choosing what information to republish, it would not meet
the requirement of “absolute non-involvement with the underlying broadcast.”118
However, this doctrine is helpful in containing the spread of fake news because it

108. Logan, supra note 88, at 203.

109. John Herbers & James H. McCartney, The New Washington Merry-Go-Round,
AM. JOURNALISM REV. (Apr. 1, 1999), http://ajrarchive.org/Article.asp?id=3269.
110. Paul Sagan & Tom Leighton, The Internet & the Future of News, DAEDALUS,
119, 120 (Spring 2010).
111. Id.
112. Id.
113. See Fallows, supra note 89.
114. Layne v. Tribune Co., 146 So. 234, 237–38 (Fla. 1933).
115. Howe v. Detroit Free Press, Inc., 555 N.W.2d 738, 740–41 (Mich. Ct. App.
1996).
116. See Matthew D. Bunker & Clay Calvert, Defamation Live: The Confusing
Legal Landscape of Republication in Live Broadcasting and a Call for a Breaking News
Doctrine, 39 COLUM. J.L. & ARTS 497, 501 (2016).
117. See Appleby v. Daily Hampshire Gazette, 478 N.E.2d 721, 724–25 (Mass.
1985).
118. In re Med. Lab. Mgmt. Consultants, 931 F. Supp. 1487, 1492 (D. Ariz. 1996).
2019] DEFAMATION AND FAKE NEWS 217

forces news organizations to vet stories they come across on the Internet before
republishing them.
C. The Mixed-Media Culture, 24-Hour News Cycle, and the Internet Combine to
Create Credibility Issues for the Mainstream Media
The 24-hour news cycle, mixed-media culture, and the Internet came
crashing together on January 18, 1998 when Matt Drudge sent out an e-mail alleging
Newsweek had halted the publication of a story about President Clinton having an
affair with a White House intern.119 Matt Drudge had never attended college and
was working as a manager at the gift shop of CBS studios. 120 Using a Packard-Bell
computer his father bought him in 1994, Drudge began to send out an e-mail—called
“the Drudge Report”—to friends containing CBS studio gossip and right-wing
politics.121 By 1995, the Drudge report had 1,000 e-mail subscribers, and by 1997
that number had grown to 85,000 subscribers.122 Today, the Drudge Report, now a
website, receives almost 1.5 billion pageviews per month, slightly less than
MSN.com.123 Drudge is now arguably the single most powerful individual in the
digital-news business.124 The Drudge Report has inspired others, notably Arianna
Huffington’s “Huffington Post,” to adopt an online news-aggregation business
model.125
Drudge’s Clinton story was quickly carried by ABC and picked up by the
Washington Post and Los Angeles Times.126 Within a week, almost every major news
organization reported the story.127 However, at this time the only source for this story
was an anonymous person who claimed to have heard portions of a surreptitiously
obtained tape recording of conversations with Monica Lewinsky. 128 Newsweek had
not “killed” the story; rather, it had delayed releasing it to continue fact checking
it.129 By the next Sunday, the Clinton–Lewinsky scandal dominated the airwaves,

119. KOVACH & ROSENSTIEL, supra note 100, at 12.

120. Philip Weiss, Watching Matt Drudge, N.Y. MAG. (Aug. 24, 2007),
http://nymag.com/news/media/36617/.
121. Id.
122. Blumenthal v. Drudge, 992 F. Supp. 44, 47 (D.D.C. 1998) (citing Plaintiff’s
Complaint).
123. Hadas Gold, More Than Two Decades Old, the Drudge Report Hits a New
Traffic High, POLITICO (Aug. 15, 2016), https://www.politico.com/blogs/on-
media/2016/08/more-than-two-decades-old-the-drudge-report-hits-a-new-traffic-high-
227008.
124. Henry Blodget, It’s Time People Realized That The Drudge Report is a Major
Media Property Worth Hundreds of Millions of Dollars, BUSINESS INSIDER
(Oct. 10, 2012, 12:32 PM), http://www.businessinsider.com/drudge-report-is-worth-2012-10.
Part of what provides Drudge with so much power in the digital-news business is his low
overhead: his page, which is produced solely by him, simply links to other news sites;
therefore, most of his income is profit. Id.
125. Arianna Huffington, BIOGRAPHY, https://www.biography.com/people/
arianna-huffington-21216537 (last visited Jan. 10, 2018). Huffington started the Huffington
Post as a liberal counter to the right-wing Drudge Report. Id.
126. KOVACH & ROSENSTIEL, supra note 100, at 13.
127. See id. at 13–15.
128. Id. at 14.
129. Id. at 11.
218 ARIZONA LAW REVIEW [VOL. 61:205

yet at this point, all the news organizations relied on a single confidential source
who had only heard portions of the recorded conversation.130
It is estimated that by the end of the first week, 41% of reportage on the
Clinton–Lewinsky scandal was not factual but actually journalists’ own opinions or
speculation, and another 12% consisted of reports attributed to other news
organizations and was unverified by the outlet repeating the report.131 Although the
Clinton–Lewinsky scandal might not be the best example of the dangers of the 24-
hour news cycle, given that the allegations were found to be true, it shows how the
modern media culture enables the potential for inaccurate information to be rapidly
repeated as truth.
Since the Clinton–Lewinsky scandal, the ability for fake news to spread
through the mainstream media and its mixed-media culture has only increased. For
example, in 2016, Politico published a shocking article claiming the bank of
Secretary of the Treasury nominee Steve Mnuchin had foreclosed on a 90-year-old
woman after a 27-cent payment error.132 The report received widespread coverage
and was even brought up two months later at Mr. Mnuchin’s confirmation
hearing.133 However, key factors about the story were later discovered to be
incorrect. Mnuchin’s bank never foreclosed on the homeowner nor did it bring the
foreclosure proceeding; Mnuchin had already sold his bank by that time and had
nothing to do with the proceedings.134 Lawyer and political activist Ted Frank was
able to uncover the discrepancy by simply checking the docket for Polk County,
Florida; he claims “4 minutes of fact-checking” would have alerted the Politico
writer to the falsehood.135
Another example of a fictitious, scandalous story spreading through the
mainstream media was the report that President Trump handed German Chancellor
Angela Merkel a $378 billion bill for Germany’s failure to meet NATO’s defense-
spending goals.136 Like with the Clinton–Lewinsky scandal, outlets did not take the
time to verify the facts and simply based their stories upon the article put out by The

130. See id. at 14–15.

131. Id. at 17.
132. Lorraine Woellert, Trump Treasury Pick Made Millions After His Bank
Foreclosed on Homeowners, POLITICO (Dec. 1, 2016, 5:14 AM),
https://www.politico.com/story/2016/12/trump-treasury-foreclosed-homes-mnuchin-
232038; see Payne, supra note 23.
133. Chris Isidore, Trump Treasury Pick: ‘I Have Been Maligned,’ CNN
(Jan. 19, 2017, 4:44 PM), http://money.cnn.com/2017/01/19/news/economy/mnuchin-
treasury-confirmation-hearing/index.html.
134. Fact Check: Did Treasury Nominee’s Bank Foreclose on a 90-Year-Old
Widow?, FOX NEWS (Jan. 27, 2017, 3:52 PM) http://insider.foxnews.com/2017/01/27/fact-
check-did-treasury-nominee-foreclose-90-year-old-woman-over-27-cents.
135. Ted Frank (@tedfrank), TWITTER (Jan. 19, 2017, 2:24 PM),
https://twitter.com/tedfrank/status/822208255321669633.
136. Trump Handed Merkel $374B NATO Bill During Talks – Report, FOX NEWS
(Mar. 27, 2017), http://www.foxnews.com/politics/2017/03/27/trump-handed-merkel-374b-
nato-bill-during-talks.html.
2019] DEFAMATION AND FAKE NEWS 219

Sunday Times, a London newspaper.137 The story played well with, and was repeated
by, those who felt the President was a “petulant child.” 138 However, both the U.S.139
and German governments have denied such a bill was presented.140
These are but three of many examples of how the mixed-media culture, the
24-hour news cycle, and the Internet have combined to reduce trust in the nation’s
press and have allowed the circulation of fake news articles under the banner of
respectable news organizations.
III. DEFAMATION
The tort of defamation was the traditional legal defense to fake news. A
presumption existed that when a newspaper published false information about
someone, regardless of its severity, the newspaper harmed that person’s
reputation.141 However, the landmark decision of New York Times Co. v. Sullivan
started a process by which the courts would whittle away at the tort of defamation
until it practically became void.142 While Sullivan protected the press, it also led to
increased cynicism directed at news organizations, encouraged frivolous lawsuits
against news organizations, and produced a loss of respect for politicians who are
the subject of defamatory stories.143
A. Modern Tort Laws of Defamation
Despite independence from Britain, the American legal system adopted
English common law, and many legal principles remained the same. Many states
considered libel a strict-liability tort.144 The law presumed harm to reputation when
newspaper articles contained factual errors, even if they were minor or
inconsequential.145 However, over time, the standard has become more forgiving.

137. See id.; Daniel Politi, Trump Reportedly Handed Merkel a $374 Billion
Invoice for NATO, SLATE (Mar. 26, 2017, 2:10 PM),
http://www.slate.com/blogs/the_slatest/2017/03/26/trump_reportedly_handed_merkel_a_37
4_billion_invoice_for_nato.html.
138. See Jack Moore, Donald Trump Invents Innovative New Way to Piss Off an
Important Ally, GQ (Mar. 27, 2017), https://www.gq.com/story/donald-trump-angela-
merkel-bill.
139. Sonam Sheth, White House Disputes Report that Trump Gave Merkel a $374
Billion Bill to Honor NATO Agreement, BUSINESS INSIDER (Mar. 26, 2017),
http://www.businessinsider.com/300bn-nato-bill-germany-merkel-trump-white-house-2017-
3.
140. Cynthia Kroet, Germany Didn’t Receive NATO Invoice from Trump:
Government, POLITICO (March 27, 2017), https://www.politico.eu/article/germany-didnt-
receive-nato-invoice-from-trump-government/.
141. Rick Schmitt, Window to the Past: New York Times Co. v. Sullivan, WASH.
LAW. (Oct. 2014), https://www.dcbar.org/bar-resources/publications/washington-
lawyer/articles/october-2014-nyt-sullivan.cfm.
142. David A. Anderson, Is Libel Law Worth Reforming?, 140 U. PA. L. REV. 487,
488 (1991); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
143. David A. Barrett, Declaratory Judgments for Libel: A Better Alternative, 74
CAL. L. REV. 847, 861–62 (1986).
144. Schmitt, supra note 141.
145. Id.
220 ARIZONA LAW REVIEW [VOL. 61:205

The modern tort of defamation has four elements: (1) a false and
defamatory statement concerning another; (2) an unprivileged publication to a third
party; (3) fault amounting at least to negligence on the part of the publisher; and (4)
either actionability of the statement irrespective of special harm, or the existence of
special harm caused by the publication.146 A communication is defamatory if it tends
to harm the reputation of another so as to lower him in the estimation of the
community or deter third persons from associating or dealing with him. 147 While
seemingly straightforward, the application of defamation to the press is beset with a
number of privileges designed to enable reporters to effectively do their jobs.
Among the privileges most likely to hinder efforts to prevent fake news is the public-
official doctrine.148
In Sullivan, the Supreme Court moved to protect the press from defamation
suits by creating an “actual malice” standard, required for public officials to recover
damages.149 The Court found that constitutional protections for speech and press
require a public official to prove the defendant made the false statement with actual
malice in order to recover damages. 150 In order to meet the actual-malice standard,
the defendant must have known the statement was false or made the statement with
reckless disregard as to whether it was false.151 The plaintiff has the burden to show
that the defendant had entertained serious doubts about the truth of the
publication.152
Although the courts have clarified some parts of the actual-malice rule,
they have not altered the rule significantly since Sullivan. As a matter of law, a court
must determine whether the plaintiff is a public official. 153 Although every public
employee is a “public official” in some sense, the legal term has a much narrower
definition.154 The designation applies, at the very least, to those among the hierarchy
of government who have substantial responsibility or control over the conduct of
governmental affairs.155 In 1989, the Court held that failure to investigate allegations
before publishing them will not support a finding of actual malice, but purposeful
avoidance of the truth may support such a finding. 156 As a result of Sullivan and its
progeny, public officials face a daunting uphill battle in any defamation suit.

146. Restatement (Second) of Torts § 558 (AM. LAW INST. 1977).

147. Restatement (Second) of Torts § 559 (AM. LAW INST. 1977).
148. See Verstraete, supra note 1, at 14. “In order for a public figure to succeed in
a defamation claim, the person must prove that the writer or publisher acted with actual malice
(knowledge of the falsity of the information, or reckless disregard as to falsity), which is
exceptionally difficult.” Id.
149. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
150. Id. at 279.
151. Id. at 280.
152. Desnick v. Am. Broad. Cos. Inc., 233 F.3d 514, 517 (7th Cir. 2000).
153. Mandel v. Boston Phoenix Inc., 322 F. Supp. 2d 39, 41–42 (D. Mass. 2004).
154. Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989) (holding that a
Veterans’ Affairs psychologist was not a public official for the purposes of libel law).
155. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
156. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 693 (1989).
2019] DEFAMATION AND FAKE NEWS 221

B. Sullivan’s Roots in the Civil-Rights Movement

The Court created the public-official doctrine as a response to a pressing
problem of the time. America, especially the South, was rocked by desegregation
battles in the late 1950s and 1960s. In the spring of 1960, officers arrested 35
students from Alabama State College at a sit-in at a whites-only snack bar.157 This
led to widespread protests by 800 more students at the state capital. 158 Furthermore,
Alabama authorities charged Martin Luther King, Jr. with tax evasion and perjury. 159
The Committee to Defend Martin Luther King, Jr. and the Struggle for
Freedom in the South published a full-page advertisement in the New York Times
(the Times) pleading for financial support of the student movement and the legal
defense of Dr. Martin Luther King, Jr.160 The advertisement contained a number of
minor misstatements, such as claiming protesting students sang “My Country, Tis
of Thee” when they actually sang the National Anthem, claiming the school expelled
the leaders of the protesting students for the singing when they were actually
expelled for the sit-in, and stating that officers arrested Martin Luther King, Jr. seven
times when they had only arrested him four times. 161 Sullivan, a Montgomery city
commissioner, sued the Times under the theory that the ad’s false description of
police action could be imputed to him.162
Alabama law required the Times to prove the truth of the statements
because the law presumed the statements to be false. 163 However, the defense of
truth was unavailable if the article contained even minor or inconsequential
misstatements.164 The trial judge found the statements were libelous per se, and the
only matters for the jury were if the Times had published the advertisement and if
the statements were made concerning Sullivan. 165 After two hours of deliberations,
the jury found for Sullivan and awarded him $500,000.166
The ruling threatened to derail the civil-rights movement. A recent labor
strike had left the Times financially weak, and the verdict was pushing it toward
financial ruin.167 Spurred by the Sullivan ruling, other southern officials brought
nearly $300 million in defamation actions against press outlets covering the civil-
rights movement.168 Justice Brennan worried that if the Court did not restrain
defamation suits against the press, the progress made toward desegregation would
be harmed.169 Civil rights appeared to be on minds of all the Supreme Court Justices;

157. Schmitt, supra note 141.

158. Id.
159. Id.
160. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 257 (1964).
161. Id. at 258–59. The Court highlighted seven instances of false statements in the
advertisement. Id.
162. Id. at 260.
163. Schmitt, supra note 141.
164. Id.
165. Sullivan, 376 U.S. at 262.
166. Schmitt, supra note 141.
167. Id.
168. Id.
169. LEE LEVINE & STEPHEN WERMIEL, THE PROGENY: JUSTICE WILLIAM J.
BRENNAN’S FIGHT TO PRESERVE THE LEGACY OF New York Times v. Sullivan 21 (2014).
222 ARIZONA LAW REVIEW [VOL. 61:205

Justice Goldberg “abandoned any pretense of impartiality” and had Martin Luther
King, Jr., who was in the gallery for oral arguments, sign Goldberg’s copy of Stride
Towards Freedom.170
All nine Justices voted to reverse the trial-court decision; five formed the
majority in creating the public-official doctrine, and four justices concurred in the
result but wrote that citizens should have an absolute right to criticize official
conduct.171 Some argue that only the special circumstances of the case, namely the
concern for civil rights and desegregation, achieved this level of consensus. 172 The
Justices understood that a split decision would be a severe blow to the civil-rights
movement.173 They were concerned that a 5–4 decision would signal that they had
not firmly decided the matter, and states like Alabama would be free to continue to
pursue libel actions against news organizations and civil-rights leaders.174
The Court’s unusual departure in procedure, by requiring the lower court
to dismiss the case when it remanded the case back to the Alabama Supreme Court,
shows that the overriding concern in Sullivan was the civil-rights movement. After
creating a new legal rule, the Court would normally vacate the judgment and return
it to the lower court for a new trial applying the new rule. 175 However, in Sullivan
the Court took the unusual steps of evaluating the evidence in the case and deciding
the new outcome.176 The Court found the evidence did not support a finding of actual
malice and left the Alabama Supreme Court with no other option but to dismiss the
case.177
Justices Brennan and Goldberg were both concerned that an Alabama trial-
court judge would “bend” the new rule so a new jury would arrive at the same
outcome as did the jury in the original trial.178 The original trial judge, Walter B.
Jones, had been a devoted segregationist and a “devotee of the Confederacy and the
Southern way of life.”179 Seating in his courtroom was segregated, and at a
subsequent libel trial against the Times, Jones praised “white man’s justice, a justice
born long centuries ago in England, brought over to this country by the Anglo-Saxon
race.”180 The unusual steps taken by the Court to ensure the protections of the Times
and civil-rights leaders Sullivan targeted show that the driving force behind the
Sullivan decision was a concern for protecting the civil-rights movement.
Justice Brennan, the author of the Sullivan opinion, later became concerned
that courts interpreted the standard of actual malice as requiring animus or hostility

170. Id.
171. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 305 (1964).
172. Schmitt, supra note 141.
173. KERMIT HALL & MELVIN UROFSKY, NEW YORK TIMES V. SULLIVAN: CIVIL
RIGHTS, LIBEL LAW, AND THE FREE PRESS 161 (2011).
174. Id.
175. Id. at 167.
176. Sullivan, 376 U.S. at 283.
177. Id. at 288.
178. HALL & UROFSKY, supra note 173, at 168.
179. Schmitt, supra note 141 (quoting ANTHONY LEWIS, MAKE NO LAW: THE
SULLIVAN CASE AND THE FIRST AMENDMENT (1991)).
180. Id.
2019] DEFAMATION AND FAKE NEWS 223

rather than reckless disregard of the truth. 181 When Brennan used the phrase “actual
malice” in Sullivan, he did so as if it already had an accepted meaning. 182 However,
at the time, the phrase’s legal meaning varied widely from state to state. 183 The
meanings were only similar in that they referred to the state of mind of the
publisher.184
At the end of his career, Justice Brennan admitted that the phrasing was
misleading.185 “I wish I had never used the word ‘malice,’” he stated.186 “I have only
confused things with that because people think of malice with its ordinary
connotations, not with the special definition I gave it in Times v. Sullivan.”187
Brennan conceded that using the term “malice” was a mistake.188 Regardless,
Sullivan would have a substantial impact on the future of defamation lawsuits.
C. Defamation after Sullivan
Current defamation law offers substantial protection for speech but
provides little protection for the reputation of public officials.189 After Sullivan, the
remedies that libel laws can provide public figures are “largely illusory.” 190 Because
the constitutional issues raised in Sullivan are implicated in seven out of eight libel
suits,191 and because the chances of winning a defamation suit against the press are
so low, some scholars question if libel still exists as a viable tort.192
Sullivan discourages many public officials who are defamed from filing
defamation suits.193 In the early 1980s, an average of 30 libel cases filed against
news organizations went to trial each year,194 with 266 defamation trials taking place
in that decade.195 By 1990, the number of libel cases tried each year had been
reduced to about 15,196 with only 192 trials taking place during that decade.197 In

181. LEVINE & WERMIEL, supra note 169, at 342.

182. HALL & UROFSKY, supra note 173, at 167.
183. Id.
184. Id.
185. LEVINE & WERMIEL, supra note 169, at 342.
186. Id.
187. Id.
188. Id. (“It’s confused everybody. ‘Malice’ as I defined it is a very different thing.
Oh well, you have to make some mistakes.”).
189. Jonathan Garret Erwin, Can Deterrence Play a Positive Role in Defamation
Law?, 19 REV. LITIG. 675, 692 (2000).
190. Anderson, supra note 142, at 488.
191. Barrett, supra note 143, at 855.
192. Schmitt, supra note 141; see also Randall P. Bezanson, Libel Law and the
Realities of Litigation: Setting the Record Straight, 71 IOWA L. REV. 226, 230 (1985).
193. See John Koblin, The End of Libel?, OBSERVER (June 9, 2010, 1:23 AM),
http://observer.com/2010/06/the-end-of-libel/. Several other theories were also advanced for
the decline in defamation suits including the use of the Internet to make quick corrections or
for defamed plaintiffs to issue their own responses. Id.
194. Alex Jones, News Media’s Libel Costs Rising, Study Says, N.Y. TIMES
(Sept. 26, 1991), https://www.nytimes.com/1991/09/26/us/news-media-s-libel-costs-rising-
study-says.html.
195. Koblin, supra note 193.
196. Jones, supra note 194.
197. Koblin, supra note 193.
224 ARIZONA LAW REVIEW [VOL. 61:205

2009, only nine defamation suits went to trial.198 In 2010, the Media Law Resource
Center, a non-profit membership association for media-content providers and their
attorneys,199 stopped its yearly tracking of libel suits against news organizations due
to the lack of cases.200 As an attorney for the Times observed, “50 years after the
Sullivan decision, plaintiff’s lawyers have come to grips with the fact that libel suits
are hard to win, and it might not be worth the time and effort to spend in fighting.”201
A study by the Libel Defense Resource Center found that even if plaintiffs
are filing defamation suits, about 90% of libel actions against the news media are
dropped, settled, or dismissed before going to trial. 202 Courts grant close to 70% of
defendants’ motions for summary judgment in libel cases against news
organizations.203 The Iowa Libel Research Project found that only 10% of public-
official plaintiffs win their suits, and a similar proportion settle their suits, usually
without monetary compensation.204
Even when a plaintiff wins at trial, the verdict is often reversed on
appeal.205 Prior to Sullivan, federal appeals courts reversed about 20% of libel
decisions; however, that rate jumped up to 70% after Sullivan.206 According to a
study of libel appeals filed between 1984 and 1994, defendants obtained an outright
reversal in 41.3% of plaintiffs’ trial-court victories.207 An additional 14.1% of
appeals resulted in reversal and remand for a new trial. 208 Even when the plaintiffs’
verdicts were not reversed, an additional 16.3% saw damages reduced.209 Only 28%
of appealed verdicts remained intact. 210 Another study in the early 1980s showed
appellate courts only upholding just 5%–10% of damage awards in libel suits.211
Despite their slim chances of winning, Sullivan actually encourages public
officials to file frivolous defamation actions. 212 Sullivan reduces the risk that a case
will be decided by a jury; therefore, the public official need not worry that a jury’s

198. Id.
199. About MLRC, MEDIA L. RESOURCE CENTER, http://www.medialaw.org/about-
mlrc (last visited Jan. 9, 2018).
200. Koblin, supra note 193 (“The number of libel cases going to trial has dropped
to the point where it’s not worth doing the survey on an annual basis,’ said Sandy Baron, the
executive director.”).
201. Id.
202. Jones, supra note 194.
203. Marc A. Franklin, Winners and Losers and Why: A Study of Defamation
Litigation, 1980 AM. B. FOUND. RES. J. 455, 492 (1980).
204. Bezanson, supra note 192, at 229.
205. Anderson, supra note 142, at 514–15.
206. New Challenge to Press Freedom, N.Y. TIMES (Jan. 29, 1984),
www.nytimes.com/1984/01/29/magazine/new-challenge-to-press-freedom.html.
207. Ten Years of Appellate Review in Defamation Cases from Bose to
Connaughton to Present, LIBEL DEFENSE RESOURCE CENTER BULLETIN, (April 30, 1994),
http://www.medialaw.org/images/stories/files/publications/bulletin/B1994-2.pdf.
208. Id.
209. Id.
210. Id.
211. Barrett, supra note 143, at 855.
212. Id. at 862.
2019] DEFAMATION AND FAKE NEWS 225

verdict would validate the defendant’s statements as true.213 When the defendant
wins on summary judgment, as often happens, the plaintiff is free to continue to
claim that what was published or said was false and can also claim that the defendant
won the legal case on a technicality. 214 As such, the public-official doctrine
encourages the abuse of the courts and allows public officials to use the stature of
legal proceedings to discredit truthful reports about them.
Many public-official plaintiffs feel filing a defamation action is a powerful
reply and vindication to disparaging stories.215 The public is likely to believe the
plaintiff’s allegations of defamation contained in a complaint because of widespread
distrust of the institutional press.216 The Iowa Libel Research Project found that
because a defamation suit is such a powerful reply, the vast majority of public-
official plaintiffs who filed defamation actions and lost would sue again, even
knowing that they would lose.217 Of course, the general public may not even
remember the original issue in controversy, as the average time spent on pretrial
litigation issues in libel cases is four years. 218
The Sullivan decision has removed the issue of a report’s truthfulness from
libel actions involving public officials.219 The issue of libel now centers on what was
known by the reporter and editor at the time of publication—something difficult for
the plaintiff to prove.220 As a result, modern-day libel law generates huge social costs
in the form of increased public cynicism.221 While Sullivan protected the press from
one threat, it has also resulted in lost credibility for news organizations.
Additionally, political leaders and public figures have lost respect due to libelous
stories, and the legal system is viewed as having elevated technicality over
principle.222
IV. SOLUTION
Although the execution of Sullivan may have had unintended
consequences, the central tenet of the case remains true as ever:
The maintenance of the opportunity for free political discussion to the
end that the government may be responsive to the will of the people
and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of
our constitutional system.223

213. Id.
214. Bezanson, supra note 192, at 230.
215. Id. at 228.
216. Barrett, supra note 143, at 862.
217. Bezanson, supra note 192, at 229.
218. Id. at 231.
219. Id. at 230.
220. Id.
221. Barrett, supra note 143, at 861.
222. Id. at 861–62.
223. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (quoting Stromberg v.
California, 283 U.S. 359, 369 (1939)).
226 ARIZONA LAW REVIEW [VOL. 61:205

The Supreme Court acknowledged that a commitment to the principle of

free debate on public issues may include “vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials.” 224
Protecting the civil-rights movement factored heavily into the Sullivan
Court’s decision-making process.225 As such, the Sullivan Court may have
overreached in its quest to protect the budding civil-rights movement of the 1960s.
While the Sullivan actual-malice standard may have been the right decision at that
time, new societal issues that the Court could not have foreseen have emerged, and
the law must be prepared to adapt to issues caused by new problems. Therefore, the
standard for defamation of public officials should leave intact protections for the
press and public discourse but should be altered to bolster the tort of defamation to
encourage accurate reporting on government officials.
In Curtis Publishing Co. v. Butts, Justices John Harlan, Tom Clark, Potter
Stewart, and Abe Fortas suggested a new defamation standard for public figures who
were not public officials.226 In their plurality opinion, they said that a public figure
should only recover for defamation upon a showing of “highly unreasonable conduct
constituting an extreme departure from the standards of investigation and reporting
ordinarily adhered to by reasonable publishers.”227 This standard strikes a better
balance that is needed for a free society. The high standard gives news organizations
room for legitimate errors when reporting on public officials, while still ensuring a
check against the fake news stories that have degraded our faith in the nation’s news
organizations and public discourse.
This new standard would require establishing a baseline conduct of a
“reasonable publisher.” This is not unusual as courts often employ industry
standards to determine reasonable conduct: reasonable suspicion is examined
through the lens of a “reasonable officer;”228 persons performing professional
services must exercise a “reasonable degree of skill and care, as determined by the
degree of skill and care ordinarily employed by their respective professions under
similar conditions;”229 and medical professionals must exercise a “degree of care,
skill, and proficiency which is commonly exercised by ordinary careful, skillful, and
prudent” physicians.230 One might argue that the practice of those professions does
not implicate any constitutional rights, so the courts should not adopt such a
standard. However, the purposed standard of deviation provides far more protection
to reporters than it does to professionals in the above situations. Whereas a lawyer
who deviates from a reasonable degree of skill and care subjects himself to liability,
a news organization would have to engage in highly unreasonable conduct that
constitutes an extreme departure from industry norms. Thus, news organizations

224. Id. at 270.

225. See supra Section III.C.
226. 388 U.S. 130, 155 (1967). Ultimately, Justices Black, Douglas, Brennan, and
White joined Chief Justice Warren in extending the actual-malice standard to public figures.
Id. at 163.
227. Id. at 155.
228. Graham v. Connor, 490 U.S. 386, 396 (1989).
229. See Hous. Auth. v. Greene, 383 S.E.2d 867, 868 (Ga. 1989) (discussing the
duty imposed upon architects).
230. Vergara ex rel. Vergara v. Doan, 593 N.E.2d 185, 186 (Ind. 1992).
2019] DEFAMATION AND FAKE NEWS 227

retain a robust shield that ensures defamation claims resulting from actual mistakes
do not infringe on the freedoms of the press.
Most importantly, this new standard would place a reasonable obligation
on journalists to verify stories when appropriate but still allow them to publish news
stories without further research when the situation dictates. Ideally, journalism is a
discipline of verification: seeking out multiple witnesses and asking all sides for
comment.231 Ensuring news stories are vetted when appropriate would move news
organizations away from the mixed-media culture that currently permeates the
modern news industry.
For example, Politico’s story claiming President Trump’s pick for
Secretary of the Treasury foreclosed on a 90-year-old woman after a 27-cent
payment error in 2014 was published because the author did not spend the “four
minutes” needed to verify the story on the court’s public docket. 232 The author,
knowing she could be held liable for an extreme departure of standards of
investigation, may have been more likely to take the time to investigate the
allegations, instead of rushing to press with a two-year-old story. However, if the
author had taken the time to verify the story but lacked the legal skills or know-how
to find or understand the exculpatory information, she would still be protected from
liability. Similarly, a duty to adhere at least somewhat to the standards of reasonable
publishers might have enticed Times reporter Zeke Miller to ask a White House
official (because he was in the White House) about the status of the Martin Luther
King, Jr. bust before publishing a story saying it had been removed. 233
Of course, this standard is not without complications. One of its significant
weaknesses is that the current industry standard is what has allowed fake news to
spread.234 However, there are a number of avenues through which American
journalism has attempted to regulate itself, such as trade publications, education,
training, think tanks, and advisory bodies.235 In the past, these institutions have been
limited to the “power of embarrassment” of outlets that breach good journalistic
standards.236 An industry-standard doctrine would force news organizations to take
such institutions, and their standards, much more seriously as they may be the very
expert witnesses testifying at an organization’s defamation trial. These self-
regulating institutions, empowered by a new standard, could become catalysts for
change within the news industry even without significant judicial intervention.

231. BILL KOVACH & TOM ROESENSTIEL, THE ELEMENTS OF JOURNALISM: WHAT
NEWSPEOPLE SHOULD KNOW AND THE PUBLIC SHOULD EXPECT 99 (3rd ed. 2013).
232. See supra Section II.C.
233. See supra Section I.A.
234. See supra Section II.C.
235. See Everette E. Dennis, Internal Examination: Self-Regulation and the
American Media, 13 CARDOZO ARTS & ENT. L.J. 697, 698 (1995). For example, the Columbia
Journalism Review has been critical of the media’s coverage of the 2016 election in relation
to fake news. Watts & Rothschild, supra note 24.
236. See Dennis, supra note 235, at 700.
228 ARIZONA LAW REVIEW [VOL. 61:205

Another concern that arises is the fact that many purveyors of fake news
may be judgment-proof or beyond the reach of the U.S. court system. 237 However,
many of those producers have only a minimal footprint within the realm of the
American media.238 Furthermore, many of the largest producers of fake news, such
as Disinfomedia, operate in the United States with significant financial assets. 239
Additionally, mainstream-media outlets, where the majority of Americans still get
their news,240 are vulnerable to large judgments and will likely want to reduce their
exposure to such liability by avoiding publishing fake news. While a new standard
for defamation may not eliminate all fake news, it is likely to inhibit the most
egregious producers.
In looking for a solution to fake news, it must be acknowledged that the
law cannot eliminate fake news. Because this proposed standard only imparts
liability for “highly unreasonable” conduct, fake news stories will inevitably enter
the national debate. However, to impart a standard of strict liability onto the press
would run counter to the spirit of the First Amendment: “That erroneous statement
is inevitable in free debate, and that it must be protected if the freedoms of
expression are to have breathing space that they need to survive.” 241 As James
Madison said, “some degree of abuse is inseparable from the proper use of
everything; and in no instance, is this more true than in that of the press.”242
The causes of fake news are many and extend beyond the decline of
defamation liability.243 As such, changing the standard for defamation liability is
unlikely to immediately curb the spread of fake news and restore America’s
confidence in its news organizations. However, it is likely to blunt the spread of fake
news into our mainstream media, as discussed above, and it can be part of a
multifaceted approach to ending fake news. A new standard for defamation can be
a starting point from which we can push for a better media.
Finally, modification of the standard for defamation remains an issue. The
American legal system operates on the principle of stare decisis, which dictates that
courts should abide by precedent.244 As such, the holding in Sullivan would seem to
represent a difficult obstacle in implementing a change in the standard of
defamation. However, such a change is not without precedent.
For example, in Arizona v. Gant, the Supreme Court changed 30 years of
legal precedent established by New York v. Belton when it held that an officer could
not search a vehicle after arresting one of its occupants except in narrow

237. See Patrick Reevell, Will Russians Indicted by Special Counsel Face
Extradition? Don’t Hold Your Breath, ABC NEWS (Feb. 19, 2018, 8:25 PM),
http://abcnews.go.com/International/russians-indicted-special-counsel-face-extradition-
hold-breath/story?id=53198448.
238. See supra Section I.A.
239. See supra Subsection I.B.1.
240. See supra note 41 and accompanying text.
241. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271–72 (1961).
242. Id. at 271.
243. See supra Section I.B.
244. Stare decisis, BLACK’S LAW DICTIONARY (6th ed. 1990)
2019] DEFAMATION AND FAKE NEWS 229

circumstances.245 The Gant Court noted the importance of stare decisis but stated
that “it does not compel us to follow a past decision when its rationale no longer
withstands ‘careful analysis.’”246
The Court has also stated that the doctrine of stare decisis is at its weakest
when the Court interprets the Constitution because “our interpretation can be altered
only by constitutional amendment or by overruling our prior decisions.”247 In
Planned Parenthood v. Casey, the Court stated that “changed circumstances may
impose new obligations . . . to overrule a prior case as a response to the Court’s
constitutional duty.”248 Today’s journalistic landscape is radically different than that
of the Sullivan era,249 and the changed circumstances require that the Court take a
fresh look at the public-official doctrine.
Additionally, the proposed standard in Curtis does not necessarily
contravene the holding in Sullivan. The Court noted that the Times published the
false advertisement without verifying its accuracy; however, the Court found it
reasonable that the Times relied upon the good reputation of those who sponsored
the advertisement.250 This reasoning is more in line with the Curtis standard because
the Court analyzed it in terms of reasonable publishing policies. 251 As such, the
Curtis standard is able to be incorporated into the actual-malice standard of Sullivan
while still respecting the doctrine of stare decisis.
Just as Sullivan’s effect on journalism took decades to develop,252 a new
standard will need time to assert its influence in our national discussion, and both
the courts and journalists will need to watch and shape it along the way. My
proposed standard, and its reasonable obligation to verify stories, is designed to
strike a balance between being too ineffective against journalistic malpractice and
not posing a threat to the freedom of the press. However, it is impossible to set out
a new legal standard for defamation with certainty that it will strike the appropriate
balance. Some public officials, such as President Trump, have already threatened to
use new libel laws to silence their critics in the media. 253 Care must be taken not to
allow accountability to change into abuse. Therefore, the new standard, and its effect
on the journalistic landscape, would need to be monitored, adjusted, and if
necessary, repealed in order to strike the appropriate balance between freedom and
responsibility.

245. Arizona v. Gant, 556 U.S. 332, 344 (2009).

246. Id. at 348. The Court did attempt to reconcile the two cases. Id. at 348–51.
247. Janus v. Am. Fed’n of State, Cty., and Mun. Emps., Council 31, 138 S. Ct.
2448, 2478 (2018).
248. 505 U.S. 833, 864 (1992).
249. See supra Section II.A.
250. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 287 (1964). The Court has relied
upon this passage to support the doctrine that failure to investigate a story does not constitute
“actual malice.” See St. Amant v. Thompson, 390 U.S. 727, 732–33 (1968).
251. Sullivan, 376 U.S. at 287–88.
252. See supra Section III.C.
253. Michael M. Grynbaum, Trump Renews Pledge to ‘Take a Strong Look’ at
Libel Laws, N.Y. TIMES (Jan. 10, 2018),
https://www.nytimes.com/2018/01/10/business/media/trump-libel-laws.html.
230 ARIZONA LAW REVIEW [VOL. 61:205

CONCLUSION
In Sullivan, the Supreme Court sought to protect the civil-rights movement
and ensure a free press. However, the actual-malice standard has created problems
that the Court could not have foreseen in 1964 and should therefore be amended to
correct those problems. Holding news organizations and others liable when they
engage in “highly unreasonable conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to by reasonable
publishers”254 balances society’s need to have a free press with its need to have a
reliable press and stems the tide of fake news.

254. See supra Section IV.

Copyright of Arizona Law Review is the property of Arizona Law Review and its content
may not be copied or emailed to multiple sites or posted to a listserv without the copyright
holder's express written permission. However, users may print, download, or email articles for
individual use.