Defamation, Platform law, Media law, Social media
Communications Law | First Amendment | Internet Law
There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?
Fueled by a new model where media profits are driven by views, both the mainstream media and social media platforms have restructured their business in a way that calls for the revisitation of the prohibition. Specifically, if one examines the disturbing rise of misinformation and disinformation, the clear trend is toward knowing falsehoods by media outlets and media pundits. There are numerous recent lawsuits against the media for engaging in misinformation, including the Sandy Hook lawsuit against Alex Jones, suits by poll workers in Georgia against the Gateway Pundit and One America News Network (OANN), and of course, Dominion and Smartmatic’s suits against Fox and other media pundits for erroneous statements in the aftermath of the 2020 election.
This Article argues that “Defamation 2.0”—suits by media lawyers against media companies and media pundits that spread misinformation and disinformation—can significantly improve media accountability by seeking to obtain the truth and to push for apologies and corrections on equal footing with misinformation. In addition, the link between misinformation and political violence is now well-established, and defamation lawsuits offer the possibility of holding not only the media accountable but also social media platforms where the content is or has been created by the platform. In so doing, it offers the possibility of protecting democracy against erosion by forces threatening to undermine U.S. institutions and seeking to inflame and foment violence such as the January 6 insurrection or mass shootings throughout the United States.
Cortelyou C. Kenney, "Defamation 2.0," 56 Loyola of Los Angeles Law Review 1 (2023)