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Could libel lawsuits squash misinformation?


There are two big shadows over the media landscape affecting what you read, hear and watch - libel suits, often aimed at putting the media on the defensive, and misinformation, falsehoods designed to mislead the public. Under the radar, there's a new alliance of attorneys filing related suits using the first - that is, libel laws - to counter the second - misinformation.

John Langford is a lawyer with the not-for-profit legal center called Protect Democracy. We should note he has represented NPR on open records litigation that's unconnected to what we're about to talk about. John Langford, welcome to the program.

JOHN LANGFORD: Thank you. Thank you for having me.

FOLKENFLIK: So let's start out by laying out the terrain. Can you spell out some of the big-stakes cases we're talking about here?

LANGFORD: Yeah. So I think the cases that you refer to as putting the media on the defensive are the cases that groups like Smartmatic and Dominion have filed against Fox News. You might think about the Palin lawsuit against The New York Times.

FOLKENFLIK: And what about your own?

LANGFORD: We're representing two low-level election workers in Georgia who counted ballots during the 2020 election. They were falsely accused of having introduced a suitcase of illegal ballots and then double- or triple-counting those ballots to help candidate Biden. It was false. It was immediately debunked by Republican election officials in Georgia and then continually debunked over the next month and continues to be debunked to this day. But that didn't stop some of the former president's top allies in the media - The Gateway Pundit, One America News Network - from continuing to spread that lie about our clients.

As a result of the lie, our clients received death threats. One of our clients was advised by the FBI that it was not safe to stay at her home, and she had to leave her home for two months. And they continue to live with the consequences of these lies to this day. When a car pulls up outside their house, they think twice about whether it's someone who might be a threat. When someone looks at them at a red light, they have to think about whether this person is a threat.

FOLKENFLIK: Let's talk about the approach here. Why does what you're doing amount to more than just avenging personal wrongs?

LANGFORD: Our information landscape right now is like the Wild West. Anyone with a YouTube account, anyone with a website, they can go out and reach more people than Walter Cronkite. And in this new frontier, there are a whole set of groups that are just publishing lies, and they're doing it for profit, and they're doing it for personal gain. And so what we're doing is setting up an organization called Law for Truth. It's going to serve as the sheriff in this new frontier and ensure that people who go out and intentionally spread lies about individuals are held accountable. And in doing that, we're going to help protect our democracy.

FOLKENFLIK: So let's drill down on that a little bit. Let's take the case against Fox News. You mention there are these two election tech companies that have filed what amount to multibillion-dollar lawsuits against Fox and some other actors for broadcasting false claims they were involved in election fraud in the 2020 presidential race. Fox's attorneys make the argument the network has to be able to neutrally report what newsworthy people say, even if it's bananas, even if it's off the wall, especially when that someone happens to be a sitting president. Why isn't that a good defense?

LANGFORD: It's not a good defense for several different reasons. So to be clear, what Fox did and what others did, they didn't just report that the president said that there was fraud or that these voting companies were involved. They, for months, had the same set of guests on - Sidney Powell, Rudy Giuliani - who repeated the lies over and over and over again. And they said there is evidence to support these claims. They endorsed the claims. That's just not neutral reporting.

FOLKENFLIK: John Langford, you used to work with the legendary First Amendment attorney Floyd Abrams. How do you square this strategy that you're unveiling now with the need for this robust environment for political speech envisioned by the nation's founders that allowed running room for people to run their mouths?

LANGFORD: I am a First Amendment lawyer, and you're not going to find someone who cares more about free speech and making sure that public debate is wide-open and robust than me and my colleagues here at Protect Democracy. But it has never been OK to spread falsehoods about someone, and especially to do it intentionally, and especially to do it over and over again.

FOLKENFLIK: As a matter of full disclosure, NPR has been sued a fair amount in recent years. I've been sued twice, though never successfully. I want to talk about your group for just a moment. It's not-for-profit. Project (ph) Democracy says it's nonpartisan, nonideological. It has some Republican support but drew inspiration from the January 6 siege of the U.S. Capitol last year and the false claims over the election. These defamation suits weren't, to my understanding, initially part of Project (ph) Democracy's approach. How did it end up evolving into an important part of your strategy?

LANGFORD: I think if you look around the world, what you see right now is a battle between authoritarianism and democracy. Look at what Putin is doing. He's spreading lies and clamping down on anyone who would fact-check those lies. Look at what Orban did.

FOLKENFLIK: Orban in Hungary.

LANGFORD: We can't have a functioning democracy if we don't have a shared understanding of facts. And we can't have a shared understanding of facts if there's a universe of groups out there that are intentionally, willfully or recklessly spreading lies about things like the legitimacy of elections or important public facts that are critical to public debate. So that's why it has become a key part of our work and a key component of Protect Democracy's mission, the broader contours of which are to prevent our democracy from declining into a more authoritarian form of government.

FOLKENFLIK: That's John Langford. He's a lawyer for Protect Democracy. John Langford, thanks.

LANGFORD: Thank you for having me.

FOLKENFLIK: And we did reach out to One America News and Gateway Pundit. We haven't heard back, but OAN chief Robert Herring commented to Reuters about the litigation, saying, quote, "I know all about it, and I'm laughing."

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.