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Donald Trump continues to smash fake news on rallies and speeches, meanwhile news (whether fake or not, you can decide yourself) are slamming the president with one story after another. I personally believe some of them were quite accurate and others were quickly debunked.

But why can't the president enforce some laws for news agencies so every story that was proven to be misleading/wrong/fake/dis-informative has to be either retracted and apologized for (not by adding one correction line, but running a whole new correction story) or fined accordingly for disinformation of general public? The process has to be organized and everybody should have the right to issue a claim on the falsehood of the story and depending on the story the fine either goes to falsely accused people or government.

I guess Trump will lose a huge political advantage (because you can't say that something is fake with this kind of law in place), but wouldn't it give him a bigger advantage since every fake story will have too big consequences to run it before fact checking it? His whole campaign was about politicians "All talk, no action", so why not do something about it?

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    The reason is that you don't want politicians meddling with the press, picking and choosing what is 'true' and 'false'. That's the whole point of a independent press, to be able to tell people what the politicians don't want them to hear. – Tirous Mar 10 '17 at 21:44
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    The paramount importance of a free and independent press for a functioning democracy is expressed in German by calling the press the "Vierte Gewalt (Fourth Power)". I believe a similar term exists in the US (Fourth Branch of Government). – Jörg W Mittag Mar 11 '17 at 0:22
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    @JörgWMittag: In my experience we usually say "the Fourth Estate" . . . which is weird, because we don't actually have the first three estates (clergy, nobility, commoners). The phrase "the Fourth Branch of Government" does exist, but doesn't have any specific standard denotation -- it's more like "the Eleventh Commandment" or "the 51st state". – ruakh Mar 11 '17 at 2:26
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    It may be worth trying to reframe the current administration out of the question as it is increasingly the case that their definition seems to be 'news they do not like, catches them out in a lie, or otherwise portrays them unfavorably' rather than any more recognisable definition of news items or editorial policy. – James Snell Mar 12 '17 at 22:08
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    Libel laws could be used to root out fake news, the problem is that they require someone to initiate legal action before anything will be done about what was printed. Initiating legal action is not free, and it needs to be done for each story separately. (I believe there's also something about the aggrieved party needs to have suffered actual damages for it to hold up in court. "Hey! This guy lied!" isn't going to do the trick all by itself.) – Steve-O Mar 13 '17 at 19:25
182

Because of the First Amendment to the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(emphasis mine)

This constitutional restriction makes it extremely difficult for the United States government to exert any control over the media.


Besides, you can also spread false stories without lying. For example, take this story:

An anonymous source just told us that Politics.SE moderator Philipp kicked his dog.

That didn't say that I did do that. Just that an anonymous source said I did. Can you prove that no anonymous source said this? No? Then you cannot prove that this statement is false.

Now you could prove that the information that I kicked a dog is false, so the news network is guilty of spreading a piece of false information. But what about this news:

President Donald J. Trump just said that the murder rate in the United States is the highest in 47 years.

It turns out Trump was wrong and it isn't. Is the news network guilty of spreading misinformation? It's the exact same situation. They reported on a statement being made, and that statement turned out to be false.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Mar 10 '17 at 21:01
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    Interesting answer. Isn't there any law against defamation that Philipp could use to sue the journal? – Taladris Mar 12 '17 at 13:21
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    @Taladris According to this defamation made simple article, the statement must be proven "false". So I think this falls into the same boat of "you can't prove the anonymous source didn't say this so you can't prove the statement is false" boat. So I suppose you could sue the anonymous person if you found they made the false claim, but they are of course anonymous. – DasBeasto Mar 13 '17 at 15:30
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    @DasBeasto, it's not that simple; multiple judges have ruled that you can't simply print libelous claims made by unnamed sources, so you're on the hook if the claim itself is shown to be false. On the other hand, Trump is a public figure, and in that case you need to prove that there was actual malice, not just that it's false. – André Paramés Mar 13 '17 at 17:00
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    @chrylis I think he's aware of that. The legal distinction he made there is correct. The standard of proof for public figures in libel in the US is distinct from other legal persons, requiring actual malice. Which is what he said. – Rushyo Mar 14 '17 at 16:54
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Apart from the legality, your assumptions are wrong.

You assume that there is a thing that can objectively be called "fake news", and that it comprises of stories containing false facts which can be disproven by fact-checking.

This is not the definition of "fake news" that Trump is using.

Looking through his Twitter feed, we can see that he describes CNN, NYT, ABC, CBS, NBC and other news organizations as "fake news"[1][2][3][4]. Not specific articles or reports from them, but the whole organization. There are very few concrete reports that Trump objected to, and nearly none where he presented evidence for false reporting.

Outlawing all major news organizations would not only be illegal and unpractical, it would also be a bad political move as it would result in large-scale backlash.

Additionally, outlawing false reports instead of entire organizations would likely not play out well for Trump (even ignoring the backlash and legal problems). Most of the reports about him by major news organizations are true, while many of Trumps claims are false. Having courts confirming this fact is not beneficial.

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    Agreed in the literal sense, but semantically there's a subtle distinction between 'fake' and 'false'; Trump mostly seems to be targetting non-stories, i.e. deceptive tactics that are intended to mislead, rather than outright falsehoods: inviting panels of biased 'experts'; cutting people off after asking a loaded question; making news stories out of out-of-context soundbytes or by association, etc. So the point about presenting evidence of false stories is a red herring; the outlets in question are called out for their persistent agenda-driven deceptive techniques, not outright falsehoods. – Tasos Papastylianou Mar 12 '17 at 2:26
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    @TasosPapastylianou Do you have any evidence that that is what Trump is calling out, or are they just assumptions based on what you find objectionable? – tim Mar 12 '17 at 9:24
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    No no, these are all things he's called out. Have a look at his recent press conference, he mentions a lot of those. For example when he talks to the CNN reporter he accuses them openly of biased reporting, untruths, hateful tone, exclusively anti-trump panels, vilification of trump supporters, emotional exaggeration, reverse framing of good stories as bad and viceversa, lack of credibility, etc. He says very little about outright fabrication; his attack seems to be about media dishonesty in the broader sense. – Tasos Papastylianou Mar 12 '17 at 19:00
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    @TasosPapastylianou Thanks, that's an interesting video. Trump also talks a lot about lies in it (he doesn't specify which ones), but you are right, he also talks about other issues. Which was kind of my point to begin with; It's not about actual falsehoods (except when it is, I guess), but about what he perceives as bias against him. Which is also why he can't really do anything about it as the OP suggests, because it's subjective. – tim Mar 12 '17 at 19:29
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    Correct, he's calling them out for creating falsehoods out of thin air by misrepresenting him and people around him, hiding actual news, and spinning fantasies around things by pulling statements and prior actions way out of context. Which is NOT the way a news agency is supposed to act. – jwenting Mar 16 '17 at 10:16
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The underlying political theory behind the First Amendment protection of the media mentioned in the other answer is that the governments and courts cannot be trusted to determine what is and is not true outside of the context of commercial speech where there is substantial regulation of untrue claims.

It is basically an epistomological position that recognizes that it is difficult or impossible to determine the truth of many political statements that often involve long chains of inference from objectively determinable facts that can have different answers when considered using different data.

For example, a statement that gun control saves lives (or does not save lives) involves cause and effect determinations in highly complex social science contexts where there could be hidden causes or misunderstood relationships. Given that the courts and government don't necessarily have a superior ability to sort of the truth of statements like these, these kinds of statements are given special protections from legal liability for being false.

If a new report truly is a false statement of fact that causes harm to someone's reputation, and if the news reporter has no actual factual basis for the factual claim, the First Amendment does permit the courts to impose both civil and criminal liability for the false statements, with civil suits brought by someone who is harmed and criminal liability enforced by the government. But, usually, this is very hard to prove.

The price we pay for a free press in the U.S. is the need to have healthy skepticism of political claims. The validity of those claims is resolved with more speech in most cases, not with legal action.

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    I'm glad someone mentioned "epistemological." – George Chen Jun 24 '17 at 20:23
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EDIT: disclaimer in response to comments below questioning my motivation or ascribing partisanship to the way I have approached this question: My answer is not intended as an apologia for Trump; in fact the Trump administration is also clearly guilty of using the exact same techniques of misdirection, reframing, and appeal to emotion. My answer only intended to address the specific question asked, namely, how the exact nature of media dishonesty (where that exists) affects Trump's ability to move legally against it, and why he is taking the course he is taking now of trying to discredit the media instead.


There are two kinds of "lies"; the ones you can clearly call out for simply not being factual, and the kind of lies that are implied untruths or statements intended to mislead, but that technically have plausible deniability if called into question. Of course, these aren't exclusive to Trump stories, but Trump has provided extremely fertile ground for such fake stories, and has been very interesting to watch.

Examples of these are:

  • the turning of a 'statement of fact' into a question, because there's no evidence to support the statement as factual. The phrasing of the question implies the answer is 'yes', hoping to instill this as a fact in the casual reader's mind, but the actual answer is invariably 'no' (this is known as Betteridge's Law of Headlines). Examples:

  • News by Association: Posting a seemingly irrelevant story alongside a Trump story, hoping to create a mental association that will frame the Trump story in a particular context, without the paper ever having made an explicit accusation.

    This is a very popular technique in the media in general. For instance, when the whole "priests and pedophilia" media debacle happened, newspapers could not factually claim that priests are at an increased risk of being pedophiles (because the reverse is actually true), so instead, they would pair stories about priests with unrelated generic articles about pedophilia in the front page.

  • Treading a thin line between libel and satire. A newspaper will hide behind 'freedom of the press' while making offensive statements or accusations thinly disguised as 'satire'. Typically also accompanied by pictures in unflattering poses or out of context.

  • Favouring 'expert opinion' misrepresented as factual analysis. This typically involves inviting 'experts' with a 'friendly bias' for prolonged discussions, typically after showing a news item that they'd want to paint in a particular light through the help of the 'expert'. Since the 'actual' story comes out of the mouth of the 'expert' rather than reported by the outlet directly, if pressured, the news outlet has plausible deniability, since it can always back out of the claims stating it was only an opinion piece, and the views of the expert do not necessarily reflect those of the outlet.

  • Exaggeration of otherwise innocent and irrelevant soundbytes taken out of context to fit a particular narrative, hoping they'll take a life of their own and become actual news (i.e. 'the throw shit on the wall and see what sticks approach'). For example, the whole 'Did trump mock a reporter with a disability' story. Or, conversely, what is known as 'Okrent's Law', where a valid position is juxtaposed against an invalid one, hoping to shift the viewer's perception away from the valid position via the "fallacy of the middle ground".

etc etc.

So to answer the question, the only legal recourse Donald Trump would have is to sue on an individual basis, where a court would have to decide whether the particular article was intentionally misleading and libellous. And given the press knows these tricks well, their plausible deniability would probably work on some if not most of these cases, so in general such legal action would not be worth pursuing. But the existence of a plethora of such articles does not grant Trump any legal way to attack "Offending Press Outlets" as organisations as a whole. Especially since they'll relish the opportunity to point out he's "attacking freedom of the press".

So, instead, he seems to be doing the "next best thing" he can, as someone in a position of influence: discredit the offending media outlets and wage public opinion war against them. If he manages to get readers of these outlets to not trust their journalistic integrity, then this is a direct blow to their readership, and a warning to any outlets that would follow similar practices. Furthermore, this has the desirable side-effect for him that it puts the topic of the integrity of the media on the table, providing a suitable distraction reframing the current state of debate away from controversies involving him specifically onto a more generally controversial topic most people might sympathise with (remember, the media has been dishonest way before Trump, so most people have a degree of distrust and a strong opinion on this topic already).

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    You seem very hard to come up with all kinds of ways how a newspaper could print information that is not a factual lie but misleads the reader, when the clear fact is that what Trump calls "Fake news" is actually just news that Trump doesn't like. This is double despicable from Trump because it moves attention away from "real" Fake news, like the Pope endorsing Trump (he did the exact opposite), or Obama releasing 122 prisoners who rejoined terrorism (when > 90% where released by the previous administration before Obama, that lie actually spread by Trump himself). – gnasher729 Mar 12 '17 at 23:41
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    Implicit in your comment is the assumption the above is false and that I speak motivated by a "pro-Trump" bias (i.e. you're committing the Bulverism fallacy). For the record, I am neither pro nor anti Trump. This is just "hostile media" bias on your account. I'm just stating observations. As for your statement, the media (not suprisingly) states Trump only calls Fake News stories he dislikes, but Trump himself has been fairly clear what he calls out is media dishonesty in general, not cases of outright fabrication. See my comment on prev. answer for this point. – Tasos Papastylianou Mar 13 '17 at 14:08
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    @gnasher729 - Re:"when the clear fact is"...Really, the clear fact? Trump colluding with Russia is a clear fact? Trump being a fascist, a clear fact? Trump....whatever....a clear fact? I have seen very few "clear facts" coming from the media. In fact, the absurdity of most of the liberal media is actually comical. But in your mind "a clear fact". I think you need to step back, recognize that you have a brain and should be able to think for yourself instead of repeating what others tell you to think and then learn the meaning of OBJECTIVITY. Tasos obviously understands the concept. – Dunk Mar 13 '17 at 20:34
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    It's not a right-wing answer, I think it's rather neutral, as it also shows why Fox News and Breitbart are allowed to operate. Some News outlets employ most of these techniques all the time, and some use them sparingly. Yet personally I'm not aware of a single "reputable" news outlet that hasn't used every single one of the tricks mentioned in this answer. – Peter Mar 14 '17 at 13:04
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    The references in the answer are to low-quality sources like The Nation, Huffington Post and HelloBeautiful, while Trump typically uses "fake news" for high-quality sources like New York Times or Washington Post. I.e. the answer is making Trump's claim seem more reasonable than it actually is. Since invoking rhetoric jargon seems to be the trendy thing around here, this one is called motte and bailey fallacy. – Tgr Mar 15 '17 at 10:37
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I think it's important to understand the origin of "fake news" first, and Trump's use of "deflection" second. First, fake news was originally almost a wholly right wing concoction. Take for example the reports of Hillary Clinton's seizures, [1],[2], and the vicious story accusing her and others of being members of a child sex ring run out of the pizzeria, Comet Ping Pong,[3], among many others.

When these stories were all debunked the rise of the use of the term "fake news" came into vogue. A lot of people, including Trump and some of his most avid supporters, were also held up to understandable public ridicule.

This is where Trump's deflection comes in. He co-opted a term that was useful in describing a real problem, and turned it into a meaningless trope. He began to call any news that did not reflect positively on him or his administration as "fake news". It's similar to the "I know you are but what am I?" silliness that little children play. He cannot do anything about so called fake news, because it's generally not fake, it's simply not "pro-Trump". This was Richard Nixon's problem with the press as well.

If Trump is truly libeled or slandered in the press, he knows he has legal recourse through the courts; he has tried it before unsuccessfully. He seems, for the moment, content to just cry about it.

  • Another legitimate example of a made-up news story is "Satanic Spirit Cooking In The Clinton Campaign," which was spread by Russian trolls and reported by InfoWars, ZeroHedge, Breitbart, NationalEnquirer, TheGatewayPundit, and numerous sources that no longer turn-up in google. – John Nov 2 '18 at 23:03
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Further to comments about the Constitution...

Donald Trump's own social media feeds and news reports from the office of the President would equally well be news sources. They would equally well be covered by such a law.

Donald Trump's statements are regularly proved false by fact-checkers. Not as in "we got that number wrong", or as in "it depends on your point of view", but as in "that event provably didn't happen and even a cursory look would have demonstrated it". Further to that, when he is called out on a lie, the reaction is to lie further by accusing the press of creating "fake news" by fact-checking him.

Yes, there are some stories about him which are not true. Frankly, I don't see why. With the positive embarrassment of riches on things he has genuinely said and done, I don't see why you'd invent things.

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    Yup, Trump based his whole campaign, and now his rule, on spreading fake news. And creating so many fake false news that his fundamental mental unfitness for the job was glossed over while media debated his fakes and lies. – Peter M. - stands for Monica Mar 14 '17 at 15:08
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Apart from concerns about freedom of press (which have been discussed in detail in other answers), it could be in a politician's best interest to paint the press into a "free but untrustworthy" corner, especially by letting it paint itself into that corner freely - if people do not trust the press, they will still feel informed and entertained, but will be slow to take action based on unreliable information.

A press that, while still working in a context of freedom, would be held to high ethical/journalistic standards, would be very much trusted - not in every leader's interest.

0

The accepted answer shows the legal reason. But this is politics.SE, so I'll provide some examples that demonstrate the political nightmare this would cause.

The president cannot make a law to protect only himself

Even if he could technically, it would be political suicide to make a law that says "Thou shalt not kick the president in the knee. This law applies only to the president." It would have to apply to everyone.

This could backfire and cause problems for people reporting the truth

Let's borrow Philipp's example for a moment. Let us suppose that Philipp actually did kick his dog. You report this since it is true: "I just saw Philipp kick his dog." If Philipp can show that the claim is unfounded, or worse, lie about it and show (falsely) that you are making a false accusation against him, then you will get charged for your "false" reporting and get penalized for telling the truth.

The reporter might believe that what they are reporting is true

Let's twist the previous example a bit. What if it was someone in a Philipp costume who kicked Philipp's dog, and they did it to fool you. You have now been fed false news, but you have every reason to believe it is true. You report on what you reasonably believe to be true, but Philipp later shows it to be false.

How does your proposed law handle mutually exclusive beliefs by opposing points of view?

A Christian, a Muslim, and an Atheist walk into a news station. No, this is not the setup for a joke, though each one of them might believe the other to be a laughingstock.

The Christian reports:

Jesus arose from the dead! After being sacrificed for our sins, he has conquered death. All who believe on him and repent can be saved from their transgressions.

The Muslim reports:

Jesus was a fraud! His disciples removed his body from the tomb then claimed he arose and left.

The Christian files a claim against the Muslim using a new law that does just what you requested: allows false news to be punished. The Christian's report claims that the Muslim is spreading false lies that the Christians removed the body of Jesus from the tomb.

At the same time, the Muslim files a report against the Christian for making a false claim that Jesus arose from death, hoping to get the Christian punished.

At court, the Christian uses the fact that there were hundreds of witnesses who saw the resurrected Jesus walking and talking and still having the wounds from his crucifixion. The Muslim says those witnesses don't count since it was a long time ago and all those witnesses are now dead; there is nobody to bear witness in court today.

The courts cannot say the Christian made a false news story. To do otherwise would set a terrible precedent: someone reporting on the crusades or the Spanish inquisition or any other historic events could likewise face punishment.

The courts cannot say the Muslim made a false news story. To do otherwise would set the precedent that nobody is allowed to challenge commonly held beliefs.

So what do we do now!?? But wait, there is more...

While this is going on, still back at the news station...

The Atheist reports:

There was no Jesus, and there is no God.

Immediately upon finishing the report, the atheist files a fake news claim against both the Christian and the Muslim for their reports about Jesus and previous reports they have made about God.

But wait, there's more! The Christian and the Muslim each heard the Atheist's report, so they both file fake news claims against the atheist.

This is getting out of control!!!

And then a Jew, a Hindu, and a Buddhist each file claims against the reports so far and then walk into the news station...

0

For the sake of the strongest possible argument assume the most favorable interpretation of the question, and suppose both that:

  1. the Executive branch is honorable, and
  2. its media critique was asserted in good faith.

"Fake News" would therefore be either lies or errors. So the question becomes, why shouldn't an honorable and faithful government outlaw lies and errors in the media as other countries have done through history?

Some lies are dangerous, but sincere error has probably done more harm through history than lies have. Attempts to utterly outlaw public lying tend to also make sincere errors nearly invincible, specifically the sincere errors of those in power, who then innocently misconstrue the sincere opinions of those not in power as malevolent lies. Societies that remove any safe means of dispelling the sincere errors of their rulers eventually tend to succumb to the disastrous consequences of those errors.


In a comment, the OP later wonders that if there is no press censorship:

How can I trust any of them and not be dis-informed without my own research?"

TLDR: Learn to live with doubt.

For citizens, if one's available information is inconclusive and contradictory, usually one need not and should not decide. Citizens should emulate the culture of science, which places shame upon those that pretend to know, and honors those who open up new fields of interesting questions.

If, for some reason, making a choice is necessary despite having inadequate information, then flip a coin, guess, or settle for intuition -- and however things turn out, note the results. Here we emulate medical practice -- when faced with conditions for which there is presently no known or certain cure, doctors test things and try to note their failures, the better to learn from those.

Sometimes information only seems to be inconclusive, and an answer may be puzzled out -- but even then, there may not be time or energy to work it out, so it's back to flipping a coin. Studying old or recurring problems at leisure can improve one's puzzling speed, but there's always a frontier of new problems.

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    I must apologize to you, as this looks like, feels like, and acts like an answer, yet I don't think I understand any of it in totality.... – CGCampbell Mar 10 '17 at 18:22
  • @CGCampbell, More context added. – agc Mar 10 '17 at 22:11
  • there shouldn't be censorship, but Public Lies Debunker (or Truth Defender, whatever) Office. Spreading intentional lies causes grave harm and must be opposed on behalf of unsuspecting public. We can't all research all the stories we read all the time. – Genli Ai Mar 15 '17 at 12:02
  • @WillNess, Why not "Ministry of Truth"? Euphemisms aside, all sincere censors regard themselves as truth defenders. Re "we can't ... all the time": we can't memorize pi, but we get by with approximations. – agc Mar 16 '17 at 15:57
  • debunking is not censorship. no need to get confused needlessly. (re-read first 4 words in my comment). – Genli Ai Mar 17 '17 at 17:12

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