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There has been quite a bit of misinformation flowing about COVID-19, some of it has even been reported on major news agencies, the one most heard about being Fox and Friends claiming, falsely, that the ability to hold your breath for 19 seconds is a good indicator of COVID-19 infection; but this is hardly limited to one show or wrong fact. Given the threat of COVID-19, and how each infection increases the risk of future infections exponentially, the misinformation being spread could realistically put lives at risk.

Now I'm not suggesting anyone be punished for COVID-19 misinformation specifically, for many reasons. However, it got me wondering at a more general level if there are forces in place to handle more direct and blatant spread of dangerous misinformation via the news.

It does make me wonder what laws exist for intentional spread of misinformation. Slander and Libel laws only apply to misinformation about an individual, they wouldn't apply to other forms of misinformation. The FDA has stepped in to stop false claims about drugs and medication, but again that is only one specific type of misinformation.

What about more general misinformation? If some news agency decides as an April fools joke to report that the government is encouraging all kids to play on highways today, or some other grossly negligent and potentially dangerous fact, and there is reasonable evidence to suggest it was done intentionally what laws may be used to penalize such a dangerous spread of misinformation?

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    Surely the claim is that the ability to hold breath for 19 seconds is a good indicator of a lack of COVID-19. Also, for the precisely minded, COVID-19 is a disease, not a virus; it is possible to be infected with SARS-CoV-2 without having symptoms. An infected person without symptoms arguably does not have COVID-19. – phoog Apr 6 '20 at 16:23
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    Just, as a matter of fact, you should be aware that the answer which you accepted does not address your exact concern. Content of cable news is not regulated by the FCC. You can look through the comments, moved to discussion, after that question to see why that is. – grovkin Apr 17 '20 at 0:05
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While the other two sort out their disagreement, here's one way the broadcast of misinformation is regulated which is not subject to dispute.

There is a federal agency called the Federal Communications Commission (FCC). The FCC regulates interstate and international communications over TV, radio, satellite, cable, etc., throughout the US and its territories.

Among its duties and powers, it prohibits the broadcast of false info regarding a crime or catastrophe if the broadcaster "knows the information is false and will cause substantial 'public harm' if aired." FCC rules indicate that the harm "must begin immediately and cause direct and actual damage to property or the health or safety of the general public; or divert law enforcement or public health and safety authorities from their duties."

Additionally, while law prohibits the FCC from engaging in censorship or otherwise infringing on First Amendment rights of the press, it is nonetheless illegal for "broadcasters to intentionally distort the news, and the FCC may act on complaints if there is documented evidence of such behavior from persons with direct personal knowledge."

The FCC may not interfere with how a broadcaster chooses to select or present news or commentary and its authority to respond to complaints regarding the above is narrow in scope. Generally, it cannot intervene without testimony from a person with "direct personal knowledge of an intentional falsification of the news."

The FCC's authority for this may be found at 47 CFR § 73.1217, which states:

§ 73.1217 Broadcast hoaxes. No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:

(a) The licensee knows this information is false;

(b) It is forseeable that broadcast of the information will cause substantial public harm, and

(c) Broadcast of the information does in fact directly cause substantial public harm.

Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

Important context is included in the accompanying note, which states:

For purposes of this rule, “public harm” must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A “crime” is any act or omission that makes the offender subject to criminal punishment by law. A “catastrophe” is a disaster or imminent disaster involving violent or sudden event affecting the public.

EDIT: Addition:

More helpful context may come from Sec. 4 of this law review article and you may find the article in general, about criminalizing false speech on social media, interesting: https://jolt.law.harvard.edu/assets/articlePDFs/v31/31HarvJLTech65.pdf

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Apr 6 '20 at 3:00
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The right to spread misinformation is absolutely protected under the First Amendment. This applies not only to "news agencies", but also churches, social-media platforms, politicians and activists, and the wingnut who lives down the street. It also applies to scientific journals, which may be relied on by the scientific community to determine what is true. You have noted that there are certain limits on false or unproven claims in very specific contexts, in particular relying on laws passed by Congress under the Commerce Clause (no false advertising...).

Misinformation has put lives at risk for centuries, a fact that was well-understood by the Founders and Framers. For this reason, the First Amendment precludes the development of a governmental Truth Bureau which decides what is true and what false or misleading statements are to be punished. Instead, the expectation is that all sides have an equal right to make claims about the truth. There are other means of persuading the majority of which statements are true and to be adhered to.

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    Basically nothing is "absolutely protected under the First Amendment." – bdb484 Apr 5 '20 at 16:11
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False information receives First Amendment protection on roughly the same terms as any other speech.

It may be punished under certain circumstances where falsity jeopardizes other cognizable legal interests, as in the cases you identified: e.g., libel, perjury, deceptive advertising -- but the fact that it is false is generally not, by itself, going to be a basis for liability. See United States v. Alvarez, 567 U.S. 709 (2012).

Applying the general rules of free-speech law, I see no reason that courts could not permit liability -- civil more likely than criminal -- against people who spread information that they knew was false and that they knew posed a meaningful risk to public health. Those are the same kinds of standards that we impose for defamation liability and other torts based on the spread of false information. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Far less likely to be permitted would be any kind prior restraint, i.e., a law that attempts to put limits on what people say before they say it. Those kinds of laws are unconstitutional in virtually every case. See New York Times Co. v. United States, 403 U.S. 713 (1971).

On your final question, regarding a coronavirus-related April Fool's prank or the like, you would then turn to an analysis under the existing tests for parody. The court would look at the entire work in question, in context, and ask whether a reasonable reader, upon reflection, would believe that the speaker was "stating actual facts." If the reasonable reader would not believe that, the speech is protected parody. If the reasonable reader would believe the story was true, you move on to the next steps. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

To illustrate, imagine a couple false news headlines:

  • "Doctors discover vaccine against COVID-19: Chopping off your own head": Would a reasonable reader believe that doctors are recommending chopping off your own head? No. This is a protected parody. What if 100 people believe the story and chop off their own heads? They were unreasonable to do so, and their gullibility does nothing to change the fact that this is protected speech.
  • "Doctors discover vaccine against COVID-19: Nintedanib": Would a reasonable reader believe that this drug was a vaccine for COVID-19? We probably can't say that a reasonable reader should know what that drug is, how it works, or how it would affect a person with COVID-19. So we'd look past the headline to the rest of the story. If the story is written as though it's authentic and there's nothing to clue the reader in to the fact that it's fake, you don't get parody protection, so you would move on to other questions, such as whether the speaker knew he was saying something false, whether the speech harmed anyone, etc.

So the short answer is that the current state of First Amendment doctrine provides avenues to punishing false speech about COVID-19, on basically the same terms as any other false speech. One thing I'm watching out for, though, is the possibility that the courts will view the pandemic as a unique circumstance that might justify weakened First Amendment protections. The First Amendment as we know it has never seen a crisis like this, so it would not be unthinkable that the courts conclude that we need tighter controls on information to avoid truly catastrophic outcomes.

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    There isn't a shred of evidence that the courts will penalize or find liability for "misinformation" outside of well-established defamation and fiduciary and related "duty of care" law. No such "duty" exists for news media, even the newspaper that you subscribe to. – user6726 Apr 5 '20 at 18:26
  • Are you arguing that the news media are somehow exempt from the general duty of care that every other person and entity is subject to in common-law jurisdictions? – bdb484 Apr 5 '20 at 19:11
  • And more to the point, you're just wrong. Hustler v. Falwell was not a defamation suit, yet the Court certainly left room for liability for IIED or invasion of privacy based on the publication of false statements. They did so again in Snyder v. Phelps. And there are countless other cases where courts indicate their openness to liability for false statements outside the contexts you've cherry-picked. – bdb484 Apr 5 '20 at 20:26
  • See, e.g., Rich v. Fox News Network, LLC, 939 F.3d 112, 126 (2d Cir. 2019) ("[W]e hold that the Riches” complaint plausibly alleges enough facts to state a claim for intentional infliction of emotional distress"); Holloway v. Am. Media, Inc., 947 F. Supp. 2d 1252, 1261 (N.D. Ala. 2013) ("[A] claim alleging intentional infliction of emotional distress, like a libel claim, can survive a First Amendment challenge when the publication was factual, false, and made with actual malice."); and Gibson’s v. Oberlin College. – bdb484 Apr 5 '20 at 20:26
  • @bdb484 there is no “general duty of care” - duty of care if one exists arises out of the particular relationship. – Dale M Apr 5 '20 at 21:03

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