JOURNALISTIC FRAUD

Trump v. Cable News Network, Inc.
July 28, 2023 (Florida)

BOOK:  January 2025 "Disinformation, Misinformation, and Democracy: Legal Approaches in Comparative Context"

Disinformation, Misinformation, and Democracy

Ronald Krotoszynski - University of Alabama School of Law

Garden, Charlotte | University of Minnesota Law School

The Perils of Fundraising Using the Disinformation of the Big Lie
Ciara Torres-Spelliscy

Disinformation, Misinformation, and Democracy

United States v. Alvarez | 567 U.S. 709 (2012) | Justia U.S. Supreme Court Center

Barr v. American Association of Political Consultants Inc. | Oyez

the-perils-of-fundraising-using-the-disinformation-of-the-big-lie.pdf

 Williams-Yulee v. Florida Bar, 575 US 433, 443 (2015) (‘As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection’; ibid. at 446:

Barr v. American Association of Political Consultants, 140 S.Ct. 2335, 2381 (2020) (‘The Court has held that entire categories are speech – for example, obscenity, fraud, and speech integral to criminal conduct – are generally unprotected by the First Amendment entirely because of their content’)

criminal fraud, which enjoys no First Amendment protection.Footnote¹5

Illinois ex rel. Madigan v. Telemarketing Associates, Inc., at 612.

¹⁵ Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 US 600, 612 (2003) (‘the First Amendment does not shield fraud’); United States v. Hansen, 143 S.Ct. 1932, 1939 (2023) (same).

 Andrew Guess’ and Benjamin Lyons’ definitions of misinformation and disinformation. Misinformation is false information that ‘contradicts or distorts common understandings of verifiable facts’.Footnote³⁰ Meanwhile, ‘disinformation is the subset of misinformation that is deliberately propagated. This is a question of intent: Disinformation is meant to deceive, while misinformation may be inadvertent or unintentional.’Footnote³¹ 

although the Supreme Court has been very lenient on liars, even in the context of elections,Footnote³⁹ it still maintains that fraud is outside of the ambit of First Amendment protections.Footnote⁴⁰ The argument I am advancing here is that just as common law fraud (and wire fraud) is not protected by the First Amendment, 

⁵⁶ United States v. Smith, 985 F.Supp.2d 547, 605–6 (S.D.N.Y. 2014).

although the Supreme Court has been very lenient on liars, even in the context of elections,Footnote³⁹ it still maintains that fraud is outside of the ambit of First Amendment protections.Footnote⁴⁰ The argument I am advancing here is that just as common law fraud (and wire fraud) is not protected by the First Amendment, raising money for Trump’s Save America PAC (and other political committees) with the Big Lie is not covered by the First Amendment either.

The Supreme Court has long been hostile to individuals who have defrauded others. Dating back to 1820 the Court stated, ‘the first principles of the common law [is that] fraud [is] the object of its peculiar abhorrence, and [fraud] contaminat[es] every act’.Footnote⁴¹ The Court has defined common law fraud as including ‘a scheme to deprive a victim of his entitlement to money’.Footnote⁴² In 1976, the Supreme Court concluded in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. about commercial advertisements that ‘[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake.’Footnote⁴³ And in another case the Supreme Court added to this definition, ‘common-law fraud has long encompassed certain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability.’Footnote⁴⁴ Thus, according to the Supreme Court, fraud can be both express lies as well as failures to tell key truths. 

July 16, 2024 "The Other Press Clauses"

IMMUNO AG. v. MOOR-JANKOWSKI, 77 N.Y.2d 235 (1991)

HERBERT v. LANDO

"Disinformation and the First Amendment: Fraud on the Public"
Wes Henricksen, 96 St. John's L. Rev. 543 (2022).

p. 552: "With few exceptions,^fn54 disinformation is protected speech. fn55

fn. 54. "The exceptions include the torts of defamation and false light, and civil and criminal claims for securities fraud.

553:We are bombarded constantly by disinformation from a myriad of sources. All this disinformation demonstrates the contradiction under the law whereby it is illegal to defraud one person, but legal, with a few narrow exceptions,57 to defraud millions.58 That is, where one deceives another for profit in a way that harms the victim, it is generally categorized as a fraud of some kind,59 which constitutes both a crime and a tort.60 But if one deceives a great number of people for profit in a way that harms many people, or that harms the public at large, the environment, or democratic institutions, it is only deemed criminal or tortious if it fits within one of the narrowly defined areas prohibiting such misrepresentations.61 There are exceptions.62

fn. 62:  "...In re Simon II Litig., 211 F.R.D. 86, 140 (E.D.N.Y. 2002), order confirmed (Oct. 15, 2002) (“It is not necessary that the misrepresentation be made directly to the party claiming to be defrauded. . . . Misrepresentations made to the public at large may give rise to a claim of fraud so long as the plaintiff was part of the class of persons intended to receive the misrepresentations.” (citation omitted));

pp. 556-57:  "speech that qualifies as “fraud on the public,” as defined in the Article, is a narrow subset of disinformation that today is treated as protected speech but should, under longstanding principles and precedent,fn78 be deemed unprotected fraudulent speech. ... Speech that qualifies as fraud on the public is not merely false—i.e., untrue—but fraudulent in that it is communicated for the purpose of gaining profit or advantage by deceit and causes harm as a result of people buying into the lie. In this way, fraud on the public is distinct from, and worse than, other kinds of disinformation.79 This Article sets forth elements that must be met to qualify as fraud on the public.80 This is a category of speech delineated by the elements set forth in Part II. It is not, however, a proposal to establish any particular tort or crime, such as any of the other long-established categories of fraudulent speech, like civil and criminal deceit, securities fraud, or false advertising.81 Fraud on the public, defined in Part II, is carried out in the same manner as fraud on the individual, and the harm it causes to individuals, society, and the environment is at least as destructive as that resulting from fraud on the individual. Accordingly, fraud on the public, like other kinds of fraud, runs counter to the aims of the Free Speech provision.82 It should not be protected speech. Continuing to treat it as protected speech will, in the future, result in the continued growth and spread of destructive disinformation, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.