In the past few years, for obvious reasons, I’ve sometimes recalled a scene from my somewhat-misspent youth. It goes this way:
If you believed the supermarket tabloid, a woman had killed her husband, cut him up into little pieces, stuffed them into shoe boxes and stashed them in a closet. “Do you think it’s true?” someone asked as we loitered by the steps of a boarded-up neighborhood grocery. We may have been drinking beer from quart bottles more-or-less hidden in brown paper bags. We often sat on the grocery steps with our brown bags. On occasion, we also sang doo wop songs with Carmen taking the high tenor and the rest of us singing backup.
Anyway, this day we were talking about the lurid newspaper story. Big Roger — who had L-O-V-E tattooed across the knuckles of one hand and H-A-T-E tattooed across the knuckles of the other, just like Robert Mitchum’s evil preacher character in the film noir classic, “The Night of the Hunter” — said flatly that it was true.
“How do you know?” Roger’s younger cousin Jimmy needled him.
Roger thought. “Because they can’t print no false shit in no newspapers.”
“Why not?” Jimmy pressed.
Roger thought a bit longer. “Because we won’t let them print no false shit in our newspapers,” he said. Right.
Jimmy didn’t waste his breath on a reply.
This was long before anyone talked about “fake news.” But the phenomenon of fake news may have been with us forever. According to Pope Francis, the first purveyor of fake news was the serpent in the Garden of Eden. Reporting on Francis’ statement in The New York Times, Jason Horowitz suggested that the pope “conflated fake news, which is politically or economically motivated disinformation, with an incremental and sensational style of journalism he dislikes.”
There is a difference between lying for political ends and lying because fiction may sell more papers or draw more clicks than truth. (Or just for the fun of it. I once wrote a profile for my local weekly paper of a man who didn’t exist. I created plausible details but assumed my basic premise was so outrageous that everyone would realize it was false. I was wrong. An educated and intelligent woman I knew told me that she and her partner had argued over it. He said it was phony. She thought it was true. She asked the editor. He told her to ask me, which she did. I don’t remember what I said.)
Somehow, maybe self-servingly, I distinguish my own made-up story from that of Washington Post reporter Janet Cooke, who won a 1981 Pulitzer for her account of an 8-year-old heroin addict — which turned out to be a work of fiction. When the fiction came to light, the Post gave the Pulitzer back, and she was fired.
Even when they’re trying, reporters don’t always get it right. But the First Amendment gives journalists a very broad right to be wrong.
The United States Supreme Court’s Sullivan ruling (which actually involved not journalism but a 1960 political ad in The New York Times) makes it hard for a public figure to sue over much of anything said by a journalistic outlet — which these days may include just about anyone — unless the statement is knowingly false or has been made with “reckless disregard” for the truth.
The fact that a journalist — or the writer of an ad — gets something wrong doesn’t matter.
What about political campaigns based on lying? We know they exist. We know that in an ideal world, they wouldn’t. But some campaigns flourish despite or because of their reckless disregard for the truth (see Trump, Donald).
There oughta be a law, you say. Actually, Washington used to have one. But in 2007, the state supreme court ruled it was unconstitutional. The court decided 5-4 that politicians were free to lie about the opposition. This made national news. The court’s logic was simple: If the government is going to forbid or penalize false statements, it has to establish what’s true. Do we want government deciding what political statements are true and false? Hell, no. Therefore, we can’t have a law against lying.
“The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James Johnson wrote for the majority. In a dissent Justice, Barbara Madsen countered that “the majority’s decision is an invitation to lie with impunity.”
It turns out that this invitation had been issued years before. Back in 1934, frustrating the vested interests fighting that year’s Initiative 77, the Washington court had ruled that you can’t expect political speech to be truthful.
Initiative 77 banned fish traps. From 1877, when the first salmon cannery started up in Mukilteo, until 1934, the canning industry was big around Puget Sound. It had money and political power. And it caught the (sea) lion’s share of the fish. The canneries built the traps, funnels of nets and pilings into which salmon swam near the mouths of rivers. They were very efficient. The number of potential trap sites was limited. The cost of building a trap was high. People who cast nets or lines from small boats couldn’t compete. They resented the traps.
In 1934, they ran Initiative 77. Pro-initiative propaganda appealed to populism — “give this great natural resource back to the people” — and conservation. Opponents allegedly tried to bribe one of the initiative leaders. And they went to court, trying to keep the initiative off the ballot, alleging among other things that, in the court’s words, “the voters have been deceived.”
The court didn’t buy it. “Attempts to deceive can only be met by publicity and a campaign of education,” the justices said. That’s a standard civil libertarian line: the cure for flawed speech is more speech. In the marketplace of ideas, good speech eventually drives out bad. Can that really work if people get all their news — or “news” — from friends or from other people who share their biases? Can it work if people live in information silos? The court didn’t foresee the internet. It certainly didn’t foresee an internet stoked with millions of misleading messages spewed from Moscow or St. Petersburg or wherever.
Faced with the argument that initiative sponsors had deceived Washington voters, those state justices of 1934, basically shrugged. “Ever since popular elections were instituted,” they said, “in every one held, someone, perhaps many voters, have been deceived . . . and voters to a greater or less degree will always be deceived.”
“Always” is a long time, but 85 years later, the justices seem to have gotten that right.
Big Roger might well have added, these days, that we won’t let them put no false shit in our politics or on our screens, either. And his cousin Jimmy might well have rolled his eyes.