Randall Nice, ‘Reviving the Lost Tort of Defamation: A Proposal to Stem the Flow of Fake News’

ABSTRACT
In the landmark case of New York Times v Sullivan, the Supreme Court established the ‘public official’ doctrine to protect the press in its reporting on government officials. Since that case, the tort of defamation, in existence for hundreds of years, has been whittled down into irrelevancy. At the same time, the traditional concept of ‘verification journalism’ has given way to a press culture that values publishing scandal-ridden news ‘first’ over accurate reporting of important stories. This has opened the door to the spread of ‘fake news’, which marked the 2016 presidential election. With Sullivan and its progeny blocking any meaningful legal recourse for those who are victims of fictitious stories, fake news represents a very real threat to democracy.

Part I of this Note explores the issue of fake news: what it is, who makes it, and why it is made. Part II examines the issues facing the modern media outlets, such as a decline in quality journalism, as well as the roles they play in disseminating fake news. Part III shows how Sullivan has rendered the tort of defamation meaningless – instead of promoting a strong and legitimate press corp – and causes widespread public cynicism of both the press and our elected officials. Finally, Part IV proposes scaling back the extreme protections of Sullivan in order to hold the purveyors of fake news responsible for their actions while still protecting news organizations when they commit legitimate errors.

Randall D Nice, Reviving the Lost Tort of Defamation: A Proposal to Stem the Flow of Fake News, 61 Arizona Law Review 205 (2019).

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