How malicious posts sow the seeds of chaos

Judge Gail Prudenti, BridgeTower Media Newswires

The unpatriotic attack on American democracy last week at the U.S. Capitol could become the norm, rather than a grotesque aberration, unless we, the people, take control. And we take control by checking facts before sharing posts, objectively evaluating divisive assertions and remembering that patriotism is loyalty to the Constitution rather than devotion to a political party, ideology, person, mob or symbol.

Foreign relations specialists tell us that regimes hostile to the United States seek to pierce the foundation on which our nation rests. And they do this by spreading falsehoods designed to encourage half of America to despise the other half, to convince the public that their fundamental institutions, such as the courts and the ballot box and the press, are corrupt and untrustworthy—in other words, to sow chaos. If we get to the point where Americans believe that democracy is rigged, that the courts are crooked, that their neighbor is the enemy, that facts are facts only if they confirm their biases, this country will be irreparably damaged, and the true enemies of this country will be the beneficiary. Let’s not do any favors for those who wish to undermine our nation and our freedoms.

Historically, relatively few people had the wherewithal to put their thoughts and opinions before the masses. Social media has changed that. Today, everyone is a publisher, with the means of reaching potentially millions of people. Generally, that’s a good thing. I firmly believe that an educated, informed public and a free marketplace of ideas are vital to the interests of the nation and the cause of freedom and democracy. What concerns me is the proliferation of misinformation and disinformation, and the irreparable harm it can do to this country as well as individuals falsely accused of nefarious or treasonous acts.

A growing body of academic literature discusses and explores potential remedies to so-called “fake news” — fabrications which the perpetrator shares via social media in the hopes that the mis/disinformation goes viral. Scholars at both Hofstra Law and Hofstra University are very much attuned to the issue; Professors Russell Chun and Susan Drucker in the Department of Journalism co-edited a new book, Fake News: Real Issues in Modern Communication, an anthology of the legal, technical and ethical issues surrounding misinformation.

Traditionally, the legal remedy to a defamatory statement is a slander (if spoken) or libel (if written) lawsuit. To prevail, the person defamed would have to prove that the offensive comment was fake (truth is an absolute defense) and published or posted with negligence. But it’s often difficult or impossible to figure out who initiated a false and defamatory post that was then shared (and believed) by tens of thousands of people.

Additionally, under Section 230 of the Communications Decency Act of 1996, online publishers are generally immune from lawsuits where the “information” at issue was provided by another Internet user. In other words, if someone posts an item to Facebook or Twitter falsely accusing you of a salacious crime, you can probably sue the individual who posted the accusation, but you probably can’t sue Facebook or Twitter for providing a platform for that false and defamatory assertion. Critics of Section 230 contend that it facilitates the proliferation of disinformation, both domestic and foreign, since social media companies are usually not legally liable for the material posted on their sites.

That may change, at least somewhat. During the 2020 election, both President Trump and former Vice President Biden called for revisions to Section 230 (for quite different reasons) and more recently Facebook, Twitter, Google and a number of smaller companies have expressed a willingness to “reform” the statute. What “reform” means is unclear, and the ramifications of amending or rescinding Section 230 are considerable.

Holding online companies liable for what is posted on their sites may prompt those businesses to more carefully monitor the content—for better or worse—and could cause them to err on the side of caution and censor information that may well be true. I question whether it would really do much to plug the flow of fake assertions that a court was in the pocket of some group or another or that a local election was stolen by some unnamed, unidentifiable “powers that be.”

So, it falls to all of us who love our country and the democratic principles at its core to be mindful of becoming an unwitting pawn of those who wish to harm this nation through disinformation and misinformation. Checking facts before sharing “information” is not only the responsible thing to do, but the patriotic thing to do.


Judge Gail Prudenti, is the Dean of the Maurice A. Deane School of Law at Hofstra University.