CO127 Scot Faulkner on the 1994 Contract with America

Scot Faulkner was the National Director of Personnel for the Reagan-Bush presidential Campaign of 1980. He went on to serve the Reagan Administration in executive positions at the Federal Aviation Administration, the General Services Administration, and the Peace Corps. He serves on the boards of numerous corporations and foundations and he’s the author of a bestselling book called Naked Emperors: The Failure of the Republican Revolution, published in 2007.

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I was talking last week about how the libel laws in England prevent journalists from working, and keep stories about the rich and powerful under wraps. That doesn’t happen much in the US.

As I mentioned last week, the US follows a 1964 precedent called New York Times v O’Sullivan, from a libel case taken by Montgomery police commissioner LB Sullivan who said that some inaccuracies in a piece about the policing of civil rights demonstrations in Alabama libeled him.

In the UK he would have been certain of a win and probably a big payout, but the Supreme Court agreed with the New York Times that they are going to make some honest mistakes from time to time and if that could put them out of business, that would effectively restrain their free expression.

They ruled that proving the facts is not enough to sue. You must prove the journalist knew, or should have known the truth and maliciously or recklessly wrote something false anyway. Basically you have to prove what was in their mind, an almost impossible task.

That’s why there is no big libel business in the US. But someone did win a libel case recently. His name is Leonard Pozner, he’s the father of Noah Pozner who was murdered at the age of six years in the Sandy Hook school shooting. The court ruled that James Fetzer, a crackpot conspiracy theorist must pay him $450,000.

Fetzer had made up multiple ludicrous theories to claim that the shooting didn’t happen, that the murdered boy never existed and published them in a book. When, probably unwisely, Leonard Pozner published his son’s birth certificate, Fetzer accused him of faking it.

Someone once said that every decision is made for two reasons, a good reason and a real reason. I suspect that the real reason that Fetzer lost the case is because he is a vile individual who made it his life’s mission to terrorize the grieving parents of murdered children in a crazed attempt to bend reality to match his ideology.

But the good reason, the reason it was possible to find against him legally is because there was ample evidence that Fetzer had oceans of evidence to show that what he was writing was untrue, but he published it anyway. He had, after all, been posting on it online obsessively, so he could not claim to have been misinformed.

It’s sort of ironic that his obsessiveness actually hurt him legally, rather than helped him, but this was a very exceptional legal case. It’s extremely rare for anyone to win a significant libel case, which is why it’s rare that they are even taken. Is this a good situation?

The rise of fake news cannot be seen in isolation from this issue. There are some outlets out there that freely publish lie after lie, that make a lot of money doing that because it brings in the clicks, and the people who are being lied about can basically do nothing about it.

The effect of this is that public pressure, which can sometimes convert into political pressure, is making big tech companies into a poor substitute for libel courts. Facebook, twitter and others are feeling the pressure to get fake news off their platform, or at least to be given less attention, and they are responding, to some degree. They try to outsource the decision as to what is fake and what isn’t, but they can’t run away from it totally. Many of the platforms – as they call themselves to try to avoid the tag ‘publishers’ – many of them have been deleting posts, closing accounts, banning people.

Conservatives in particular have complained about being victimized about this. Whether they’re just being snowflakes or have a genuine grievance is another question. But this highlights a question that we aren’t tackling. There’s a list of things – no effective libel laws, frictionless publishing for everyone with a phone, social media companies not being a privatized judge and jury, and the defense of people who are the victims of merciless campaigns of lies. You can have some of the things on that list, but you can’t have all of them.

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