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Is It “Fake News” To Call Media “Fake News?”

Since the 2016 presidential election, the term “fake news” has become a ubiquitous part of our media and political vocabulary. But as we all know, the “fake news” label is often, well, “fake.”  So what can media entities do when they are unfairly tagged with the “fake news” moniker?  Normally not much—the First Amendment would make it rather difficult to challenge the truth of a such a hyperbolic claim (and realistically, the media has no real interest in curtailing these free speech rights).  CNN, however, has found a way to fight back that is sure to stir debate in media, legal and political circles.

Fake News, KeyboardOn May 2nd 2017, CNN refused to air a 30-second TV spot marking President Trump’s 100th day in office. The reason?  A one-second graphic showing MSNBC’s Andrea Mitchell, CNN’s Wolf Blitzer, MSNBC’s Rachel Maddow, ABC News’ George Stephanopoulos and CBS News’ Scott Pelley with “FAKE NEWS” written in red across their faces. CNN says its decision to pull the ad (which can be viewed in its entirety here) was not because CNN did not like the message. Rather, CNN says that the “fake news” claim is false and thus, the ad itself violated CNN’s false advertising policies.  CNN stated: “The mainstream media is not fake news, and therefore the ad is false.  Per our policy it will be accepted only if the graphic is deleted.”

Of course, it seems unlikely that the FTC will be knocking on the White House door to pursue a truth-in-advertising claim (even if the FTC did not ultimately answer to President Trump). Although there is still a distinction between myth and fact, labeling something as “fake” seems to be increasingly open to interpretation, and a court probably would not find that labeling a news outlet as “fake news” in President Trump’s ad (or any other ad) is actionable false advertising.  But CNN’s move does open a new door to challenge the “fake news” claims—albeit by curtailing speech.

Not surprisingly, President Trump’s camp sees no merit to CNN’s position. In a statement on his Facebook page, President Trump doubled down on his claim, stating that “[i]t is absolutely shameful to see the media blocking the positive message that I am trying to share with the country. We will fight back – OUR message will not be silenced by FAKE and BIAS news!” As the battle between the new administration and the traditional media continues to intensify, those with an interest in media law should watch with great interest to see how First Amendment rights may be affected.

© 2019 Vedder Price

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About this Author

Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office
Shareholder

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property,...

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Bryan Clark Media & Privacy Law  litigation Vedder Price Law Firm Chicago
Associate

Bryan Clark is an Associate at Vedder Price and a member of the Litigation group in the firm’s Chicago office.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.

Mr. Clark’s other representative work includes drafting successful dispositive motions in right of publicity and invasion of privacy cases, arguing successful motions to quash on behalf of media entities facing subpoenas, defeating motions for preliminary injunction in intellectual property litigation, and advising advertising and marketing clients on compliance issues. He presents on issues related to digital privacy and data breach before a national audience, such as the ABA Annual Meeting in 2013.

Mr. Clark is a member of the Trial Bar for the Northern District of Illinois and has first-chair trial experience in federal court. As a litigator, Mr. Clark has been involved in a broad range of matters in addition to media and privacy, including topics as diverse as loan enforcement and foreclosure, consumer fraud, environmental, construction, and insurance law. He also has handled a variety of pro bono engagements, including work for nonprofit media entities, representation of an Illinois prisoner with multiple sclerosis, and Section 1983 civil rights litigation

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