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Prior to studying law, Mr. Glasser was a journalist from 1979 to 1992, covering spot news, combat correspondence
and enterprise reporting for daily newspapers and wire services, filing stories from El Salvador, Cuba, Haiti, Miami,
Nicaragua, Great Britain and India. He later studied at the New York University School of Law, worked with U.S.
Supreme Court Justice William Brennan at NYUs Brennan Center, and started his legal career at NBC News,
working on Dateline and NBC Nightly News. After representing and advising a wide variety of publications and
broadcasters, he spent twelve years as Global Media Counsel for Bloomberg News, where he was responsible for
pre-publication review, ethics issues, and training more than 2,200 reporters in more than 120 bureaus around the
world on legal issues and journalistic fundamentals, particularly focusing on investigative and business news. He
also managed media litigation globally, and is acknowledged as an expert in international media law. He is the
author and editor of The International Libel and Privacy Handbook (Fourth Ed., 2016-17, Lexis/Nexis) and is a
member, regular panelist and contributor for several media law and journalism organizations including The Media
Law Resource Center, The Committee to Protect Journalists, and the Media Law Defence Institute (UK). He also
writes for and appears regularly for Reuters, The Washington Examiner, Talking BizNews, i24 TV and others. In
addition, he has been appointed an Adjunct Professor at New York Universitys Arthur Carter Journalism Center,
where he teaches a graduate level class in Law and Ethics for Investigative Journalism. He also serves at the
Columbia University Global Center for Free Expression as a listed expert and panelist on international media law
and free speech rights.
1
Pulitzer-Winning Lies, THE WEEKLY STANDARD, Jun. 12, 2003, http://www.weeklystandard.com/pulitzer-winning-
lies/article/4040
2
See, New York Times Statement About 1932 Pulitzer Prize Awarded to Walter Duranty, The NEW YORK TIMES,
http://www.nytco.com/new-york-times-statement-about-1932-pulitzer-prize-awarded-to-walter-duranty/
1
chat rooms and bulletin boards, hoaxers would create fake headlines that
announced some market moving news that wildly increased value of their shares.
Before the fake headline was discovered to be false, the swindlers sold their stock
at a higher price, in some cases for tens of millions of dollars.
Because this disinformation was not of interest to the general public but only to
those involved in the equities markets, the issue of fake headlines did not enter
the general publics consciousness. Its worth noting that many of these people
were caught and charged with securities fraud, which goes to the element of
accountability that well see is central to our thesis.
WRONG vs FAKE
As many of you know, last year a jury found that Rolling Stone published a story
about a campus rape that turned out to be a complete fabrication. The legal ins-
and-outs of that case are too complicated to go into here, but the court heard
credible allegations that reporter had been lied to, manipulated by anti-rape
activists, and also led by her own bias, failed to fact-check allegations before
being published. 3 After a series of corrections, Rolling Stone retracted the article
in its entirety. The Dean of Students for UVA school sued Rolling Stone for
defamation, and won a $3 million award, which is not being appealed. 4, but the
issue they are litigating is not the falsity of the story, but whether damages should
be awarded against them.
The central thesis I submit is that neither CNN, The New York Times nor Rolling
Stone are fake news outfits. They have simply published wrong or biased
news from time to time. Unfortunately, the phrase fake news is now being
thrown around as a slur against any news with which someone disagrees, or finds
factual fault.
3
See, Rolling Stone and UVA: The Columbia University Graduate School of Journalism Report: An anatomy of a
journalistic failure, April 5, 2015, ROLLING STONE, http://www.rollingstone.com/culture/features/a-rape-on-
campus-what-went-wrong-20150405
4
Rolling Stone settled another suit brought by one of the named fraternities. See, Fraternity chapter at U-Va. to
settle suit against Rolling Stone for $1.65 million, June 13, 2017, THE WASHINGTON POST,
https://www.washingtonpost.com/local/education/fraternity-chapter-at-u-va-to-settle-suit-against-rolling-
stone-for-165-million/2017/06/13/35012b46-503d-11e7-91eb-
9611861a988f_story.html?utm_term=.b31040450e89
2
The key distinction between fake news and wrong or biased news is not a
question of ideology, but rather one of accountability. Whether we take free
speech as a human right, or instead approach it as the keystone that holds
together the bridge of an informed democracy, we must admit that we all have a
capacity for error. Reasonable readers must be taught that that the First
Amendment allows us the breathing space to make such errors. 5
As for accountability, responsible news organizations often self-police errors by
providing corrections or allowing aggrieved subjects an opportunity to respond. A
few large news organizations still employ public editors or standards editors
to provide internal checks and balances. Whether you believe that these people
are not doing their jobs well is off point: if the public does not believe they are
doing their jobs well, they will simply stop buying their publications. This is the
free marketplace of ideas at work.
Finally, in the worst-case scenario of ultimate accountability, the First
Amendment still allows citizens who believe they have been libeled to seek
redress in court, usually subject to a very high standard of proof involving
knowing falsity or reckless disregard of the truth.6
5
See, New York Times Co. v. Sullivan, (1962) (Holding that First Amendment freedoms need breathing space to
survive and not all false speech constituted actionable defamation about public officials. A rule imposing strict
liability on any false speech would not provide the breathing space necessary for individuals to criticize public
officials.)
6
Reckless disregard is explained in greater detail in Purposeful avoidance of the truth: the other side of actual
malice, Charles J. Glasser, Nov. 15, 2016, INFORRM, https://inforrm.org/2016/11/15/purposeful-avoidance-of-
the-truth-the-other-side-of-actual-malice-charles-glasser/
3
In the case of Rolling Stone, arguments can be made that the writers bias may
have led the reporter to introduce falsity into the story. But thats wrong news,
not fake news.
Instead of looking at legitimacy through an ideological lens, by using some simple
Internet tools and little bit of detective work we can use five steps to sort the
wheat from the chaff and become better journalists, commentators and readers.
USING GEEK TOOLS
1. Domain Registry is the First Sign of Fakeness.
Legitimate news organizations do not hide behind private domain
registrations or anonymous ownership that make it impossible to trace or
contact the publisher. All domain names are listed in an international
registry called ICANN. This registry shows the details of who owns what
domain name. Using the Internet tool called whois 7 we can look up the
owner of the domain name. We can see that the domain Bloomberg.com is
run by Bloomberg LP, located at 731 Lexington Ave. Similarly,
Thinkprogress.org (although decidedly leftist-progressive) lists an address
that can be checked as legitimate through Google maps.
7
https://www.whois.net/
4
email address and does not name any editors or journalists, it is likely a
fake news website.
Similarly, using an Amazon-owned search tool called Alexa,8 you can also
track which websites link to the one you are examining. Fake news website
operators have become very experienced in gaming search engines by
creating networks of links from one fake news website to another. (Much
of this is motivated by clickbait ad verticals designed to generate revenue).
Thus, it is not the number of links to the website in question that matters,
but rather the type and quality of news organization that cite the website
you are examining. Again, this method is nonideological: even the arguably
left-leaning New York Times has cited the libertarian/conservative
magazine Reason at times.
5
additional comment. This attracts readers to revisit their news websites
frequently, thus increasing revenue. In turn, it is in their interest to update
stories. By contrast, fake news websites almost never publish corrections
nor have a letters to the editor section, and rarely update news stories.
9
See, Trump: Media Should Compete for 'FAKE NEWS TROPHY, Nov. 27, 2017, THE HILL,
http://thehill.com/homenews/administration/361932-trump-media-should-compete-for-fake-news-trophy