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FAKE NEWS VERSUS WRONG NEWS:

A nonideological approach to smarter readership

Charles J. Glasser, Jr., Esq.


Fair Media Council
December 5, 2017

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.

2017 Charles J. Glasser, Esq. LLC


OLD WINE IN A NEW BOTTLE
Before we attack the problem, we must understand that the idea of
disinformation and thats what were talking about here is very old one.
During the 1930s, New York Times reporter Walter Duranty was found to have
filed completely false stories covering up the barbaric cruelties and famine
committed in Josef Stalins Soviet Union. When asked by a fellow reporter about
peasants in Ukraine dying of starvation at the rate of 25,000 a day, Duranty
replied What are a few million dead Russians in a situation like this? Quite
unimportant. This is just an incident in the sweeping historical changes here. I
think the entire matter is exaggerated. 1 Relying on the prestige of The New York
Times, Mr. Duranty's denial that there was a famine was accepted as gospel. After
Stalins atrocities came to light, in 1990 a member of The New York Times editorial
board admitted that Duranty's articles were some of the worst reporting to
appear in this newspaper.2
So, while disinformation is an old problem, electronic media (and by that, I mean
a 24-hour news cycle, and news breaking through the pervasiveness and
immediacy of social media) has created a multiplier effect. Theres an old saying
that a lie spreads halfway around the world before the truth is out of bed. In our
digital landscape, now a lie circles the globe several times before the truth is out
of bed.

ITS REALLY FAKE NEWS 2.0


Its also important to understand that disinformation through digital media was
happening long before the phrase fake news came into parlance. During the
dot-com bubble of the 1990s, stock market manipulators figured out that the
multiplier effect of digital media could be used to swindle stock investors using
the pump and dump scheme. The way these schemes usually worked was that
the swindlers would buy a reasonably unknown stock at a low price. Then, using

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

NUTS AND BOLTS OF DEFINING AND DETECTING FAKE NEWS


This leads us to the nuts and bolts question: how do we identify fake news sites?
I submit that its not a question of ideology. The alt-right Breitbart.com is not a
fake news site nor is the far left progressive Thinkprogress.org. To be sure, each
are laden with skewed editorial viewpoints loaded into what ought to be straight
news reporting, but that simply is the hallmark of bias.

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.

By contrast, the fake news site Bipartisanreport.com which is often cited


in social media reporting on US political news hides behind a private
registration company actually located in Australia that shields the true
ownership of the website from public view. This is the first red flag in
detecting a fake news website. This method is not colored by ideology, but
rather a hunt for simple transparency.

2. Lack of Contactable or Experienced Staff


Another red flag to look out for is whether or not the news site in question
has a masthead that lists the names of reporters and editors, or whether
the website is populated by stories containing no byline at all. Check the
about or contact us link on the website. If it simply lists the generic

7
https://www.whois.net/

4
email address and does not name any editors or journalists, it is likely a
fake news website.

3. Lack of Journalistic Legacy


Another backstop of credibility is to run a Google search on the name of the
author(s) in question on bylined stories. We all leave digital fingerprints,
and when checking on the name of the author, we should find at least
some breadcrumb that shows either previous experience in journalism,
expertise in the field about which they are writing, or some other evidence
that byline is not merely a pseudonym.

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.

4. Lack of Corrections, Updates and Self-Policing


Although there are cogent arguments that legacy media is doing a bad job
of issuing corrections, (and in some cases making stealth corrections to
stories not showing a change in text) to their credit, most major news
organizations spend considerable resources at least making the attempt to
correct errors or allow an opportunity to comment after publication.

In addition, seeking revenue in the transition from print to digital media,


many news organizations are monetizing the immediacy of digital media by
issuing updates to stories adding new information, clarifications, or
8
http://www.alexa.com/siteinfo

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.

5. Does this Make Sense?


As a final check, the thoughtful reader or researcher needs to leave their
own ideological bias at the door for a moment, and ask themselves
whether they believe the story because they want to, or because the story
has been proven true. While smaller, though legitimate news websites may
have a scoop from time to time, before sharing or citing a bombshell
revelation it is worth checking to see if the well-staffed major wire services
such as the Associated Press, Reuters or others have published anything
remotely similar.

In conclusion, I make no pretense to offering these five steps as a panacea to


curing us of the plague of fake news. Indeed, The Presidents constant use of
the label perpetuates the misunderstanding.9 In some cases, particularly in social
media, civilians and journalists alike often repost articles without reading them.
Yet others do not exhibit the good healthy skepticism that a reader should show
when an article is so loaded with hysterical outrage or obsessive use of modifiers
and editorialization that its credibility should be called into question. But that
said, if we slow down just a little bit and look behind the curtain we can improve
the quality and public trust of journalism and the quality of discourse in American
life.

Charles J. Glasser, Jr., Esq. 2017

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

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