Area Free Market Proponent Sues Facebook For Defaming Him By Moderating His Personal Marketplace Of Climate Change Ideas

from the libertarian-right-up-until-getting-hit-in-the-wallet dept

Being consistent is hard. Just ask John Stossel, libertarian news commentator and self-proclaimed supporter of free markets and deregulation.

Here's John touting the power of free markets to route around perceived "censorship" by platforms engaging in moderation:

If you can't read/see the tweet, it says:

.@realDonaldTrump just signed an executive order changing #Section230 protections social media companies have - reducing their ability to control what kind of content they allow on their platforms.

Why not just encourage competition? @LBRYio is an excellent example.

If you don't like how you're being served by your current social media provider, feel free to start your own or take your business elsewhere. That's a solution that doesn't involve government intervention and actual censorship.

This is Stossel on free markets and the things he doesn't like about the US legal system:

As a libertarian,[37] Stossel says that he believes in both personal freedom[38] and the free market. He frequently uses television airtime to advance these views and challenge viewers' distrust of free-market capitalism and economic competition.

[...]

Stossel has criticized government programs for being inefficient, wasteful, and harmful.[42] He has also criticized the American legal system, opining that it provides lawyers and vexatious litigators the incentive to file frivolous lawsuits indiscriminately.

This is also John Stossel, albeit more recently:

Former TV journalist John Stossel is demanding at least $2 million in damages from Facebook in a lawsuit he filed against the social media giant, alleging the company defamed him by appending fact-checking labels to two videos he posted about climate change.

How libertarian. Nothing says free market more than asking the government to step in and force a private company to pay $2 million for enjoying its free speech rights and engaging in moderation efforts users agreed to be subjected to in order to use the service. Stossel was always free to take his business elsewhere. Instead, he has decided to engage in the sort of litigation he previously frowned upon at length.

The lawsuit [PDF] proceeds under the no-longer-novel (but still seriously dubious) legal theory that being fact checked is libelous. Stossel, however, proceeds under the opposite assumption:

This case presents a simple question: do Facebook and its vendors defame a user who posts factually accurate content, when they publicly announce that the content failed a “fact-check” and is “partly false,” and by attributing to the user a false claim that he never made? The answer, of course, is yes.

"Of course." "Yes." So says Stossel, unable to cite any court precedent stating this largely because there is no court precedent stating this. Having put his best wrong foot forward, Stossel goes on to claim (at length) that having his climate change-questioning videos labelled as dubious by Facebook somehow resulted in $2 million in reputational damage.

Of course, this ignores several things, even after subtracting the complete lack of judicial precedent. Setting aside the protracted and imaginative legal arguments, let's ask ourselves if Facebook's fact check actually did any damage to Stossel's reputation? Chances are, the labelling only solidified his reputation with users who agree with what Stossel says and had zero effect on users who already find Stossel's takes on climate change dubious. So, there's that part of it.

That's not the legal standard, of course. But the legal standard isn't any easier to meet, especially since Stossel is undeniably a public figure. That raises the bar for defamation. And there's no way Stossel is going to meet it. And assertions like these, while expected in plaintiffs' complaints, are inadvertently hilarious.

This reality is evidenced in the case of Plaintiff John Stossel, an award winning career journalist with a formerly unblemished reputation for truthful and accurate reporting.

Sorry, John, but your reputation is not "unblemished." Many, many people believe you carry water for billionaires and have nothing but contempt for you and your contributions to the marketplace of ideas.

Here's the meat of Stossel's complaint:

Defendants defamed Stossel, with malice. First, they attributed to Stossel a claim he did not make, and which caused his viewers to shun him. Defendants made this false attribution recklessly, before they had even reviewed his video. And even after Stossel brought the issue to Defendants’ attention, Defendants refused to correct their speech, and intentionally left the false attribution online for anyone to see, where it remains today.

Then, Defendants falsely labeled Stossel’s second video report as having failed a “factcheck” and stated that it contained “factual inaccuracies” and was “partly false.” Defendants applied these labels, knowing full well that Stossel’s content contained not a single false fact, and despite the concession by Defendants’ own scientist reviewer that no “specific facts” in the report were “wrong.”

Defendants’ statements are provably false, inherently damaging to Stossel, and were made either with a reckless disregard for their truth or falsity, or with knowledge of their falsity.

Well, we'll see how that plays out. Facebook is free to moderate in any way it deems appropriate, which is frustrating for users, but standard operating procedure for every large social media platform. Inconsistency and blown calls are to be expected because Masnick's Impossibility Theorem.

Stossel is upset because one video was flagged for a claim he didn't make (that climate change did not contribute to California wildfires) but admits later in his narrative that there's a reason it may have been flagged by the fact-checking system. It doesn't make the flagging correct but it does suggest where the system might have erred.

Stossel asked the scientists why his Fire Video would have been flagged as failing a “fact-check,” since the fact-check was directed against a Claim that Stossel never made. In response, Mr. Doerr opined that the video was likely flagged because it contained an interview with Mr. Shellenberger, an environmentalist who criticizes environmental alarmism, and who had previously been “fact-checked” by Defendants.

Does this amount to defamation? Highly unlikely. Instead, it highlights the fallibility of automated systems and human fact checkers, both of which can introduce their own biases when making moderation decisions. Stossel even inadvertently admits this decision was most likely not the result of actual malice (a legal term that has nothing to do with maliciousness, but rather a deliberate disregard for the truth), which is something he needs to clear the libel bar for lawsuits involving public figures.

This defense highlights a central problem with Defendants’ labelling system: since “missing context” is a description that could theoretically be applied to any content – whether five minutes or five hundred minutes in length – Defendants use the label to condemn any content that expresses an opinion with which Defendants disagree, under the pretext of a “fact-check.”

This is a good paragraph for an op-ed or maybe even testimony before a Congressional hearing on social media moderation. But it's no good here because it undercuts the malice assumption and replaces it with something that could be used in Facebook's defense. Since it has millions of minutes of uploaded video to review every day, shortcuts are taken and mistakes are made. But they are not deliberate mistakes. And they are not libelous because they are not factual statements made with a deliberate disregard for the truth.

At least Stossel can point to some actual damages, rather than leaving that part up to the imagination of the court:

[I]mmediately after Defendants affixed their false label on the Alarmism Video in April 2021, there was a dramatic drop in both views of that video and all Stossel’s other videos, and of the associated advertising revenue, which reduced by nearly half, from approximately $10,000 a month to approximately $5,500 a month, and which Stossel otherwise would have received.

Again, there's no guarantee Stossel would have continued to obtain $10,000 a month in perpetuity if not for Facebook's moderation effort. But even if the court assumes that to be true, at best the actual damages are $22,500 at the time of the filing. Not quite the $2 million Stossel believes should be his in addition to the actual damages.

I don't doubt this moderation effort caused Stossel some financial discomfort. I also don't think fact-checking should be handled by people unwilling to actually engage with the content they're moderating. But I also don't believe Stossel has a case. Moderation efforts are protected by the First Amendment. Section 230 also immunizes platforms for making these efforts, allowing them the freedom to experiment and deploy new moderation efforts that may actually be an improvement over what's being experienced now. Without this protection, moderation dies and even mildly controversial users will be the first ones shown the door.

But beyond that, Stossel is arguing against his own personal beliefs. It's hard to maintain your standards when it's your own money on the line, but if he truly believes the free market is self-correcting and no one is forced to use any particular platform to get their message out, he shouldn't engage in a lawsuit that almost certainly going to end in a loss, tying up court resources with allegations bordering on frivolous.

Filed Under: 1st amendment, actual malice, content moderation, defamation, fact checking, free market, john stossel, libertarian, section 230
Companies: facebook

Is Quoting Someone Out Of Context Defamation?

from the in-the-9th-circuit... dept

Earlier this year, there was certainly plenty of discussion in the political news business of the Shirley Sherrod incident, where Andrew Breitbart posted a video of Sherrod speaking, which implied she had made certain decisions on the basis of skin color. However, after Sherrod was fired from her job at the USDA, it quickly came out that the video clips of Sherrod speaking were taken totally out of context, and the message of the speech was completely the opposite of what had been implied. This quickly resulted in a scramble as pretty much every publication in the world covering the story wrote articles questioning whether or not she had a legitimate case of libel.

Of course, as with any highly politically charged legal discussion, it often appeared that those picking a side over whether or not she had a case might have been somewhat influenced by their political views on the matter. However, much of the discussion focused on what Breitbart said separately in relation to the video, rather than the video itself. Still, a recent case may bring the video back into discussion.

Michael Scott points us to the news of a recent ruling against newscaster John Stossel for allegedly posting video that was apparently taken out of context, and while a lower court protected him via California's anti-SLAPP law, an appeals court has ruled that the defamation case can move forward over the video. It doesn't mean that the defamation claim will necessarily stand, but the video edit and context apparently is seen as grounds for a potential defamation claim: Of course, Breitbart claims he didn't edit the video in the Sherrod case, which then raises other legal questions about whether or not he's protected himself on the video part, and whether or not he can use journalist shield laws to protect the "source" who provided him the video. All in all, while I can understand the desire to push a libel case in such situations, I do wonder if it actually results in much good. At this point, it's difficult to find anyone who isn't familiar with the "full story" of what happened with the out-of-context video, so it's not about "correcting" false info that's out there. Still, this latest ruling is a reminder that if you happen to quote someone out of context, you may risk a defamation claim.

Filed Under: andrew breitbart, defamation, editing, john stossel, shirley sherrod, video