Silha Professor Jane Kirtley's current research examines the continuing and urgent question of how to reconcile the First Amendment protections for free expression with the rise of misinformation and fake news, including libelous speech.
Her latest article, "Uncommon Law: The Past, Present and Future of Libel Law in a Time of “Fake News” and “Enemies of the American People,"" published in the University of Chicago Legal Forum, grew out of a presentation at a symposium, What's the Harm? The Future of the First Amendment, at the University of Chicago Law School in 2019.
Kirtley writes that after many years of comparative quiet, the United States is experiencing a growth in libel suits brought by both public officials and private figures. President Donald Trump has claimed that “Our current libel laws are a sham and a disgrace and do not represent American values.” Is it time to “open up the libel laws,” as he has called for? Should the New York Times v. Sullivan actual malice standard be overturned, as suggested by Justice Thomas in February 2019? Should states curtail the fair report privilege protecting accurate accounts of government actions? Should the United States adopt standards of other countries around the globe that are less protective of free speech and more concerned with reputation and dignity?
Many would argue that governments have a duty to protect their citizens from “fake news.” But can we trust the government to define what is “true”? Recent initiatives abroad to enact laws to censor “fake news” demonstrate how problematic this can be. As scholars have observed, we must be careful not to assume that the findings of a government tribunal on a controversial issue are the truth.
Doing away with the Sullivan rule is a dictator’s dream, Kirtley writes. Because government can control and manipulate information, any determination of truth or falsity that fails to recognize the fundamental right of the people to criticize government is fundamentally flawed. The marketplace of ideas is imperfect, but essential to facilitate the search for truth. In fact, it is the essence of American values.
Together with postdoctoral associate Scott Memmel, as well as graduate student research assistants at the Silha Center for the Study of Media Ethics and Law, Kirtley continues to monitor and analyze free expression issues emerging from the use of social media, including in the context of the January 6, 2021 assault on the U.S. Capitol in Washington, D.C.