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Is There Liability for Publishing Fake News?

Whether you call it fake news or conspiracy theory, allegations of imagined crimes can have very real consequences. Take the case of Edgar Welch, a father of two who drove six hours from his home in North Carolina to a Washington, D.C.-area pizza restaurant to investigate unfounded claims that it was involved in a child sex-slave ring led by former presidential candidate Hillary Clinton.

Welch's investigation involved walking into the popular pizzeria with a loaded AR-15 assault rifle and firing it inside the restaurant. Fortunately, he was arrested before anyone was injured, but his actions, and those of others who bought into the "Pizzagate" myth, have many wondering about the legal liability for publishers of fake news.

Not So Little Lies

While it's not clear exactly where Welch got his information from, according to the criminal complaint charging him with assault with a dangerous weapon, unlawful discharge of a firearm, and other gun-related charges, he told officers "that he had read online that the Comet restaurant was harboring child sex slaves and that he wanted to see for himself if they were there."

Accusations that Comet Ping Pong was involved in child sex-trafficking -- and that Clinton was at the center of the conspiracy -- began surfacing on fake news sites and social media in October and every debunking of the fabrication only served to embolden its adherents. According to the Washington Post, the restaurant, its staff, and even its business neighbors have since been subjected to attacks on social media, including death threats.

Legal Liability

In almost all cases, publishers of news, real or fake, can't be held liable for the actions of their readers. Absent some specific call to action or incitement of violence, freedom of speech and freedom of the press would protect most speakers and publishers, even if the statements were untrue.

Without knowing Welch's source, or what it said, it's hard to know whether a person or publication could be liable in this case. Obviously, simply reading a "Clinton Involved in Pizza Parlor Child Porn Ring" and taking matters into one's own hands is different from hearing a person or media outlet call on listeners to arm themselves and investigate the accusations.

And while Clinton, Comet Ping Pong, and possibly some of its employees could file defamation claims, those suits would be hard to win. Clinton, the restaurant itself, and its owners and chefs may be considered public figures, and would need to prove actual malice in order to win a libel claim. And non-public figure employees may have difficulty proving the false statements involved them. What may be easier to prove, given Welch's actions, would be damages, but all of the other elements of a defamation claim would need to be met as well.

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