Striking a blow against fake news
By: Michael Greiner
Tags: Government, Politics, Words That Matter 2017, Law, Fake News

Photo by Elijah O'Donnell on Unsplash

The deal between prosecutors and the National Enquirer sends a message to the purveyors of falsehoods

At this time of year, we see a lot of posts suggesting a “word of the year.” Amy O'Rourke suggests the word “moments,” while Jessica Valenti proposes “trust,” Meghan Daum submits for consideration “f*ck,” nancy gibbs brings up “listen,” James Comey recommends “truth,” and Morgan Jerkins proposes “rage.” Any one of these is a good candidate, but I would advocate for another: “fake news.”

I don’t think any of the above words have been tweeted as regularly by the President of the United States as “fake news.” What’s somewhat shocking to realize given how circumstances have developed is that “fake news” was originally a term coined by the left, moderates and intelligence analysts to describe falsehoods spread on Facebook during the 2016 campaign. The source of many of these lies (let’s call a spade a spade) was bots based in Russia.

Upon hearing the term, however, Trump seized upon it. The term became a key part of his campaign to discredit the mainstream media that has traditionally worked for the public interest. Any time news sources report something Trump doesn’t like, he calls it “fake news.” Do the traditional media sources always get it right? Certainly not. But their agenda is the dissemination of information, and their credibility rests upon their effort to get it right at least most of the time. They may have an ideological bent, but those beliefs will not stop them from exposing a hot story that embarrasses one of their ilk.

Such is not the case with real purveyors of fake news, such as the bots set up in Russia with the intent to deceive voters, or Trump’s lawyer seeking to silence porn stars. We now have a new candidate for the ultimate purveyor of real fake news: the National Enquirer. This revelation might be the least surprising fact revealed by the various investigations into Trump’s affairs. After all, anyone who has ever stood in line in an American grocery store has probably been amazed by the gall of that publication with its outlandish headlines promoting ridiculous stories. But up until now we thought its only agenda was selling newspapers by promoting hysteria to the lowest common denominator. It turns out that its agenda was actually much more sinister.

In a recent statement, prosecutors from the U.S. Attorney’s office for the Southern District of New York — the same prosecutors who went after Trump attorney Michael Cohen — announced that the owners of the National Enquirer will cooperate with prosecutors in return for immunity from prosecution. The crime? Allegedly paying hush money to former Playmate Karen McDougal during the 2018 campaign to keep her quiet about her affair with candidate Trump. Such payments, when unreported, potentially represent violations of Federal campaign finance laws.

The dynamics of what happened are actually a little more complicated. Allegedly, the National Enquirer purchased rights to McDougal’s story, paying her and promising her the opportunity to write about health issues for the Enquirer. McDougal considers herself a fitness expert. When the Enquirer did not publish the Trump story, and backed out of its post-election commitments to her, McDougal cried foul.

This is where what they did becomes particularly insidious. At least in the past, the Enquirer, like most newspapers, was supposed to be committed to the dissemination of information. But here, it was involved in hiding information from the public, information that might have mattered in such a close election.

With this deal, then, prosecutors have fired a warning shot across the bow of the real fake news purveyors. Because of first amendment protections, newspapers believed they could say or do whatever they wanted without consequence. But that is not strictly true. At a certain point, society has an interest in restricting certain kinds of destructive speech. Think of the classic case of somebody yelling “fire” in a crowded theater. Such speech is not protected and can, in fact, be prosecuted. Now it appears that there may be potential criminal liability for newspapers that use their privileged position in American society to damage our political system.

Thus far, most of the commentary about this deal has focused on the risk it represents to Trump, as indeed it does since the testimony and records of the National Enquirer can now be used to bolster the testimony of the decidedly non-credible Michael Cohen. The possible impact of this deal upon fake news, however, could have even more important long-term consequences. Certainly, any law that potentially burdens our free speech rights will face tough inquiry by the Courts. But the principle that free speech rights are not absolute is well established, and the National Enquirer may have unwittingly added an exception to this right where journalists purposely obscure facts to impact an election.

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