The Constitutional Right to Lie to the People

By Mark David Blum, Esq.

Fox news successfully argued to a Florida Appellate Court that under the First Amendment, Fox news had the legal right to lie, distort, and mislead the public. The case arose when a reporter was directed by Fox news to write up for public dissemination a wholly false and distorted story. When the reporter refused, Fox fired the reporter. In response, the reporter sued Fox news and after a trial, a six person jury found in favor of the reporter. A Florida appellate court overturned that verdict holding, “that the Federal Communications Commission position against news distortion is only a "policy," not a promulgated law, rule, or regulation.”

The public airwaves belong to all of us and are regulated by the FCC. In place is a policy that seeks to dissuade those who lease the public airwaves from lying or distorting the truth. The story arises from a reporter who was told to distort a story about growth hormones in milk so that Fox would not have to worry about its advertisers. Because the FCC only has a policy in place against misleading the public, the Courts held that the reporter (and the public) had no recourse for the lies being spread by Fox News.

Freedom of the Press is a treasured absolute right enjoyed by all Americans. Having a free press unfettered and uncontrolled by the government is an insurance against corruption and enables the public to be informed of what is going on in the world. Americans need a free press as a protection against unchecked power by government. Only through a free press can the nation have a chance to be alerted to wrongdoings and misadventures by government. “Watergate” is but one prime example of how the press works as a guardian of the People’s rights.

At the same time, the question arises whether Freedom of the Press should include the right to lie, distort, misdirect, or mislead the public. It is a constant joke that Fox News has to declare itself to be ‘fair and balanced’ because otherwise nobody would believe anything they say. Fox News only has credibility with those who are true believers of the politics being sold on that news channel. Spend any amount of time watching Fox News and you can easily identify their continuing misrepresentations, spin, and false depictions presented as news. Florida has now said that Fox News can lawfully do what they have been doing all along.

I disagree however that the Right of a Free Press is absolute any more than the Right to Free Speech is absolute. There is no absolute right to free speech. People can be held liable, even criminally so for uttering a lie. There are limits to free speech depending on the context, time, place, and manner of the speech. By similar analogy, the Right to a Free Press should be likewise limited. If you lie, mislead, misrepresent, distort, or falsify any news, there should be civil and if necessary, criminal repercussions. The rules of Free Speech cover the news in that if a news outlet lies or misrepresents the facts, they can be sued for any harm that arises as a result thereof.

Here in New York, as well said in O'Neill v Oakgrove Constr., 71 NY2d 521, 532 [concurring opn, Bellacosa, J.], “Additionally, … a journalist wields a potent weapon which has the potential to destroy a person's useful life. While journalists have a protective privilege, the weapon they have with its potential for good or evil should be wielded with at least minimal care and sensitivity when it is stated or implied that an individual is being exposed as an incompetent or a wrongdoer. The report by Floyd Abrams, noted constitutional expert on freedom of the press, on a questionable story by the Cable News Network about the reported use of nerve gas by the United States military in Laos, as quoted in the New York Times of July 3, 1998 (CNN Retracts Report That U.S. Used Nerve Gas, at A1, cols 2, 4, at A14, col 1), which he characterized as "journalistic overkill", is particularly applicable: "The CNN broadcast was not fair ... It showed no fabrication or illegality, but a more subtle process of distortion that began when conclusions outstripped the evidence ... and was compounded by interviews laced with hypothetical questions and ambiguous answers ... Fairness must come first. The CNN broadcast was not fair. Information that was inconsistent with the underlying conclusions ... was ignored or minimized."

There is no doubt that in New York, a news organization can be liable if they act in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties. Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, Gaeta, v. New York News Inc., 62 N.Y.2d 340; 465 N.E.2d 802; 477 N.Y.S.2d 82 (1984). Lewis v Newsday, Inc., 246 AD2d 434 (1st Dept 1998), Fraser, Respondent, v. Park Newspapers of St. Lawrence, Inc., 246 A.D.2d 894; 668 N.Y.S.2d 284; (3rd Dept. 1998), Grobe, Appellant, v. Three Village Herald, 69 A.D.2d 175; 420 N.Y.S.2d 3 (2nd Dept. 1979), Crane, Respondent, v. James Gordon Bennett, 77 A.D. 102; 79 N.Y.S. 66 (1st Dept. 1902) (It is unnecessary to state in detail the contents of all the different articles. Enough has been referred to, or quoted, to show that what was published of and concerning the plaintiff, if false, tended to degrade him in the public estimation and to hold him up to the contempt and scorn of the community).

In a case coming out of nearby Monroe County, Anderson v. Strong Memorial Hospital, 151 Misc. 2d 353; 573 N.Y.S.2d 828 (Monroe County 1991), News people do not stand in any favored position with respect to newsgathering activity . . . [They] have no special First Amendment immunity or special privilege to invade the rights and liberties of others … As observed by the Second Circuit in Galella v Onassis (487 F2d 986, 995-996): 'Crimes and torts committed in news gathering are not protected . . . There is no threat to a free press in requiring its agents to act within the law.' (see also, Le Mistral, Inc. v Columbia Broadcasting System, 61 AD2d 491, app dsmd 46 NY2d 940 supra; see also, Dietemann v Time, Inc., 449 F2d 245).”

It is patently immoral to give cover to a news agency to willfully and intentionally disseminate false information. It is repugnant to our very constitution to give cover to a news agency to lie to the public out of fear of offending advertisers.

The real question that arises in Florida is while we recognize a news agency can be liable for its’ lies about a person, is there relief available when a reporter refuses to participate in the fabrication. Should we allow a reporter to stand firm and refuse to participate in lying to the public or is the news agency’s desire to fire that reporter paramount? After all, we hold reporters liable when they liable others or act irresponsibly toward the public. We do not immunize the reporters under the First Amendment when they lie or distort the truth. Should we not at the same time give cover to reporters who refuse to act illegally? In Florida, they say “no”.

It is time the FCC promulgate a rule that not only shields a reporter who opts to not report a lie, but mandates reporters to refuse to participate in the dissemination of falsehoods and misleading stories. We as Americans need to know that we are not being deliberately lied to. That should be a right as fundamental as any First Amendment freedom. Nothing should be done to allow government to meddle in the content of any news media. At the same time, no news media should be able to shield themselves behind the First Amendment and punish a reporter who chooses not to lie to the public.

This case is being cast as giving the news media judicially sanctioned consent to lie. I do not read the Decision as such. Rather the decision says that a reporter is without remedy when they refuse to lie. Therein is where a change in policy has to occur. Without that protection, whom among our news bureaus can we trust. Without trust, the news media is irrelevant. Americans have a fundamental right to their news. We should not be subject to willful lies because a reporter is afraid of losing their job and perks. The balancing act comes out in favor of shielding reporters.

President Franklin Delano Roosevelt said, “The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government." America needs its public airwaves to be free of intentional lies and distortions. While there is room for such rubbish, it is the belief and trust that we have in the media that gives them their true power to fulfill their constitutional role. So long as news organizations are shielded and allowed to punish and sanction employees who refuse to lie and distort the facts to the People, that trust we so desperately need will be lost.

Hubert Humphrey said it best. "The right to be heard does not automatically include the right to be taken seriously." If we do not shield our reporters from malicious and evil intentioned news media, then none of the news will be taken seriously. That outcome is a clear and present danger to all of us.

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