By Tom Lamia

In last month’s column, I spoke of political dirty tricks. Typically a “dirty trick” in political campaign combat involves secretive skullduggery designed to be untraceable to the candidate or his or her campaign. No credit for the trick is claimed and deniability is built into the planning. It was such a dirty trick that brought low Ed Muskie of Maine of whom I spoke last month.

Richard Nixon was a master, if not the originator, of the dirty trick. “Tricky Dick” worked hard at leaving no fingerprints on his tricks, which generally involved unsourced claims that his opponents had Communist Party sympathies. When Nixon first ran for the Senate, he referred to his Democratic opponent, Representative Helen Gahagan Douglas, as the “Pink Lady.” His campaign workers made telephone calls to voters, asking, “Did you know that Douglas is a Communist. “

In at least one case, Nixon’s accusations of Communist party activity were proved to be accurate, but his long history of crying wolf made him a doubtful accuser of Alger Hiss, a brilliant lawyer and high-ranking State Department official who was convicted of perjury for lying to a grand jury about his contacts with communists and served a long prison term.

McCarthyism soon followed, buoyed by the Hiss conviction. Nixon went on to gain respectability as Eisenhower’s Vice President. The stigma of his early campaign tactics faded, but his willingness to play dirty to win elections was again made evident by the Watergate scandal that enveloped his 1972 presidential campaign and led to his resignation as President in 1974. Muskie was the leading candidate among Democrats for their party’s nomination in 1972 before becoming a victim of the dirty tricks practiced by the Nixon presidential machine.

Dirty tricks have not gone away. Today’s tricksters are to be found more often in social media than in newspaper or telephone scams. Twitter trolls and bogus digital ads operating behind complex computer firewalls have enabled the spread of “alternative facts”–lies that through repetition over social media become accepted as true and remain so in the eyes of those who would like to believe they are true. Still, a reputation damaging false statement is libelous, even if its source believes it to be true. A lie made in an anonymous chat room is legally no different from one made in open debate.

All publishers are legally responsible for the content of what they publish. A false statement about a public figure, if made with reckless disregard for its veracity, is a libel compensable in money damages. Reputations of public figures can be enormously valuable, great enough to ruin even the largest newspapers, broadcasters or magazines. Consequently, the mainstream media are very careful about what they publish. Today, all media have some protection against libel lawsuits brought by public figures. A 1964 U.S. Supreme Court case established that even a false statement about a public figure was defensible if not made with a “reckless disregard” for the truth. Where did that leave tricksters who use social media to knowingly and recklessly misinform? Unprotected and underground.

Today’s dirty trick is less likely to be a false report in the mainstream press than a thinly sourced tabloid story or a troll posting on social media. The no reckless disregard defense applies to tweeters and retweeters of loathsome stuff that has undergone no verification review at all, but these information pirates can hide behind anonymity or can find refuge in bankruptcy. The big fish, like the supermarket tabloids, are prepared to defend themselves in court. No issue goes to press without first being vetted by lawyers whose pedigrees and hourly rates are more impressive than the journalistic standards of their clients.

So, in this setting, how can the public be responsibly informed?

A possible remedy, however impracticable, would be an independent “truth teller” charged with separating fact from fiction in the political atmosphere.

In government, business, religion, charity, military and sports, there are truth tellers—well-informed neutrals responsible for finding objective truth where necessary. These are the inspectors general, ombudsmen, research scientists, mediators and other professionals who by nature or training are relied upon to protect institutions from villainous misdirection.

Why would it make any sense to add yet another layer of complexity and expense to sorting out truth from lies? Why not follow Facebook’s example and leave it to the market?

Facebook’s business model doesn’t work if it is legally responsible in money damages for false statements in its ads and posts. If Facebook is a publisher of that content it does have legal responsibility and would, therefore, have to prove the truth or the absence of reckless disregard for the truth of what is in that content. Accordingly, perhaps, Facebook has advised the public that it is a “platform,” not a publisher. As a platform, it says, it simply puts up what its members and advertisers propose, without censorship or qualification for truth. Hundreds of years ago, in England’s market courts, this was known as caveat emptor (let the buyer beware) and released the seller from liability for defects in goods. Facebook appears to be using a similar denial of responsibility to absolve itself from defects in its content.

So, I am wondering, is my notion of a truth teller any more fanciful than Facebook’s belief that it does not publish what it circulates? Consider that Facebook uses the Internet (a government creation) without charge for its worldwide community electronic bulletin board. How reasonable is its claim that it should have no responsibility for what is on its pages? For salt in the wound, consider also that Facebook uses the voluminous data that it mines from its content in refining and extending its products, and also sells that data to third parties. If Facebook is not legally responsible for its content and turns a blind eye to the identity of users and advertisers, who or what is to protect the public from cyber thugs?

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