The Law, the Media, and Fake News

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Dozens of law students and media law experts crowded into the Jonathan B. Chase Student Center at Vermont Law School September 15 for the Vermont Law Review’s latest symposium entitled “Media Law & Journalism: Protecting Democracy’s Safeguards.”

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Co-sponsored by, the event featured national luminaries of media law from organizations such as the Gizmodo Media Group; the Center for Investigative Reporting; and the Wall Street Journal.

The panelists were eager to discuss both newly emerging as well as long-simmering concerns for an industry once hailed by America’s founding fathers as “the bulwark of liberty,” according to VLS professor Peter Teachout, who kicked off the well-attended event.

“I guess you could call me the voice of constitution past,” joked Teachout as he briskly outlined the evolution of the journalism industry from 17th century England through to the present day.

“The framers’ understanding of the freedom of the press is not necessarily the same one we have today,” he said. “I think we have a much more libertarian understanding, in some respects, than the framers did,” added Teachout, explaining that while contemporary journalists operate without many of the severe restrictions faced by their Enlightenment-era predecessors, they continue to face challenges from both the government and their various audiences.

Freedom of Information

Dividing the day up into a series of panel discussions, the assembled law students and media experts tackled three areas of media they deemed most relevant in an era of digital media disruption and rising distrust of many media organizations.

Author, professor, and media law expert Mary-Rose Papandrea speaks during a panel discussion on whistleblowers, leakers, and national security on Friday at Vermont Law School. (Herald / Dylan Kelley)

Tackling questions of open government and accountability, the first panel dove into the necessity and efficacy of the Freedom of Information Act (FOIA)—a piece of 1966 legislation that seeks to promote transparency in the federal government by allowing members of the public to request official documents directly, but very slowly, from the government.

“We have to be accountable and transparent in government if people are going to support the whole notion of a democracy,” said founder Anne Galloway during a discussion that alternately lauded the open government goals of FOIA, but bemoaned its expense and languid pace.

That system, described by Gizmodo Media Group General Counsel Lynn Oberlander as “arduous, expensive, and time consuming,” effectively excludes many private citizens and small-outlet journalists from doing timely reporting and research.

“They’re not great ways of getting information in terms of doing your story,” said Oberlander, referring to the painstaking process of requesting documents and records.

“It is a fight every day to get records,” agreed Galloway during the lively discussion. “It is exhausting,” she added, emphatically pointing to a litany of FOIA lawsuits over the years. “The public’s right to know constantly needs to be refreshed,” she said.

Fighting “Fake News”

One major disruptor to news organizations’ ability to fulfill that right to know has been the proliferation of “fake news.”

Roaring to the front of the national conversation in the wake of the 2016 election, the derisive label has been used to discredit both credible and untrustworthy media organizations alike, leaving many wondering—despite the presence of professional fact checkers—what’s real and what isn’t, according to Harvard University professor and author Matthew Baum, one of Friday’s panelists.

“Fact checking, as it has evolved, has been almost entirely ineffective,” said Baum, explaining that “most people, most of the time, consume news to feel good.”

Offering a “taxonomy of fake news,” Baum briefly outlined the difference between satirical news outlets, promotion and public relations, and well-funded, ideologically driven sponsored research that, he argues, muddy the waters for both politicians and the public on issues ranging from the health affects of tobacco to climate change.

“I think that people here and around the country are really concerned about making sure we have access to true information,” said law student Pamela Roberts of Bucks County, Pa. “I think the biggest problem is that so much information and misinformation is getting equal play. It makes it very difficult for most of the public to discern the difference.”


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