New Lawsuit Reveals Challenges Of Taking ‘Fake News’ Peddlers To Court

March 16, 2018 6:00 a.m.

If online agitators spark a wave of harassment by publishing damaging, dishonest stories about private individuals’ personal lives, can the victims do anything to stop them?

Brennan Gilmore hopes so. A counter-protester at the 2017 white nationalist rally in Charlottesville, Va., Gilmore has brought a defamation suit against InfoWars, Gateway Pundit and other right-wing conspiracy-peddling sites that he says smeared his reputation.

The federal lawsuit filed Tuesday comes not long after some of those same sites falsely dismissed the student activists who survived the Parkland school massacre as “crisis actors,” and at a time of broader concern about the growing, destructive influence of fake news.

But the hurdles the suit appears to face speak to the challenges of using the courts to hold fake news purveyors accountable.

A complaint put together by lawyers at the Georgetown Law School’s Civil Rights Center details false stories about Gilmore’s involvement in a “deep state” plot to undermine the Trump administration by staging the murder of anti-racist activist Heather Heyer. Those stories have led to threats to Gilmore’s personal safety and caused potential damage to his career, he contends.

Gilmore, a foreign service officer on long-term unpaid leave, became a target after sharing on Twitter a video he’d captured from the rally, showing neo-Nazi James Fields’ car ramming into a crowd, injuring dozens and killing Heyer. In response, a number of far-right sites quickly noted that Gilmore had worked for the State Department and donated to Democratic politicians. They used this to suggest he was part of a conspiracy funded by philanthropist George Soros to effect an anti-Trump coup.

In one example, Infowars’ Alex Jones claimed in a video posted online that he “did research” and “confirmed” that Gilmore was a “high-level CIA” operative and “State Department insider with a long history of involvement in psy-ops.” Jones definitively stated that Gilmore helped orchestrate the chaos at Charlottesville and was paid $320,000 a year by Soros.

Within days, Gilmore was subjected to death threats, doxxing and in-person harassment on the streets of Charlottesville that made him fear for his personal safety, according to the complaint. He claims the enduring consequences of these false stories have “compromised” his career, deterring companies from wanting to work with him while he’s on leave and putting him at risk if he rejoins the foreign service and returns abroad, as he plans to. The result has been emotional distress, he says.

Gilmore told TPM he won’t settle for any amount of money, and wants his case to set a precedent. His goal, he said, is “to try and prevent someone else who is in my shoes to be victim to the same type of predation that Alex Jones and his fellow conspiracy theorists directed to me.”

“They knew what they were saying was false and they made no attempt to verify anything,”Andrew Mendrala, supervising attorney of Georgetown Law’s Civil Rights Clinic, told TPM. “[They were] putting this out there with the intention of smearing him and unleashing their followers to sort of carry that out in real life.”

Beyond defamation, the case aims to hold the creators of false online content responsible for their followers’ responses to that content.

That’s why it may be a heavy lift. Although Gilmore may have suffered real personal trauma, strong constitutional protections for publications that traffic in opinion pose a major challenge, First Amendment experts told TPM.

Not all of the defendants used language as unequivocal as Jones’. Derrick Wilson, a writer for former U.S. congressman Allen West’s website, wrote a story suggesting Charlottesville “was a complete SET-UP” and that it was “fishy” that Gilmore formerly worked for the State Department.

That could shield Wilson from the legal standard for defamation, which explicitly relates to false, damaging factual assertions, experts said. Call it the “a lot of people are saying” defense.

“It’s a tough argument to make,” preeminent first amendment attorney Bruce Johnson told TPM of Gilmore’s suit, calling it “path-breaking in terms of the First Amendment issues presented.”

“I could see the core of a defamation case lurking there,” Johnson, a litigator at Davis Wright Tremaine, told TPM. “And I can understand the plaintiff’s frustration because the prevalence of these fake news organizations has clearly infected our political dialogue.”

But, Johnson added, although people can be held liable for false and defamatory facts, “the courts are very reluctant to police individual opinions.”

Then there are the threats. Though the defendants could reasonably be expected to know that their legions of social media followers would go after Gilmore as a result of their bogus stories, it’s difficult to hold them accountable for the actions of others, according to Eugene Volokh, a First Amendment expert at the University of California at Los Angeles School of Law. Volokh noted that the defendants did not direct their followers to threaten Gilmore.

“Outright solicitation of violence or other kinds of crimes, like vandalism, against a specific identified target is probably unprotected,” Volokh said. But condemning somebody or publishing demeaning hypotheses about them is “generally protected, even when the foreseeable result given the audience is that a fraction of it is going to act improperly or even criminally.”

Many of the defendants in the Charlottesville suit have publicly brushed off the case as a concerted effort to silence conservative voices.

Compare the case to a recent lawsuit targeting the far-right brought by the Southern Poverty Law Center (SPLC). Last year, the civil-rights group sued Andrew Anglin, the founder of neo-Nazi site Daily Stormer, for directing his followers to carry out a months-long, anti-Semitic harassment campaign against a Montana Jewish woman and her family.

The SPLC accuses Anglin of invading Tanya Gersh’s privacy, intentionally inflicting emotional distress, and violating Montana’s Anti-Intimidation Act. First Amendment attorneys told TPM the case is strong, pointing to the over 700 messages the Gershes received on their personal devices at all hours of the night, on Anglin’s orders, including death threats and promptings to commit suicide.

Still, both cases represent a burgeoning effort to provide legal redress for private individuals suffering real-world consequences caused by chronic bad online actors.

As Mendrala, the attorney in the Charlottesville case put it: “They feel there’s some anonymity afforded them [online], combined with some vague notion that the First Amendment protects anything that they say about anyone, and that they can operate with impunity. And that’s not the case.”

“We feel like we’re sort of seeking to hold them accountable in ways that maybe they have not yet been,” he said.

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