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Fact-checking on social media gave rise to a new flavor of libel suit in which a person alleges defamation when a post is labeled as false but, just as fast as it is filed, it’s getting tossed out of court. The most recent dismissal came Tuesday when a federal judge ruled that Facebook doesn’t have to face a lawsuit from TV journalist John Stossel, who sued over labels attached to his videos about the 2020 California wildfires and climate change.
U.S. District Judge Virginia DeMarchi found that Facebook couldn’t have defamed Stossel because its fact-check program “reflects a subjective judgment about the accuracy and reliability of assertions” made in the content that’s been checked. “Simply because the process by which content is assessed and a label applied is called a ‘fact-check’ does not mean that the assessment itself is an actionable statement of objective fact,” reads the order.
The judge didn’t permit Stossel another chance to fix his claims. In addition to the disputed statements being “not actionable as false statements of objective fact,” she ruled the suit would also be dismissed under California’s anti-SLAPP statute, which allows for the dismissal of meritless suits arising from protected conduct under the First Amendment on a matter of public interest.
Stossel objected to Facebook’s treatment of two of his videos in which he discussed climate change. In one post, Stossel acknowledges that climate change played a role in forest fires but says that it wasn’t the primary cause. Facebook placed a “Missing Context” label on the post stating that “independent fact-checkers say this information could mislead people” and redirected users to a page that Stossel said misattributed quotes to him on the issue.
Another video — titled “Are We Doomed?” — that questioned claims made by those whom Stossel referred to as “environmental alarmists,” was labeled by Facebook as “partly false.” He alleged that the attribution constituted a false statement.
Following the lead of other federal courts that have issued identical rulings, DeMarchi concluded that fact-checking is a subjective undertaking. Neither Facebook nor its third-party reviewers can be liable for defamation because they’re not making statements of objective fact, she found.
“A reviewer’s assessment that Mr. Stossel was sympathetic to” and intended to communicate that poor forest management caused the fires and not climate change “is the kind of assessment that is protected by the First Amendment as a statement of opinion,” she wrote.
The judge said that the article users are directed to, for more information, if they click the “Fact Check” button attached to misleading posts is a “classic example of viewpoint expression, or opinion, based on disclosed facts.”
“The article identifies multiple examples of false statements or factual inaccuracies in the Alarmism Video and explains why the reviewers judge the statements to be false or inaccurate,” the order reads. “Mr. Stossel identifies no facts in the Alarmism Article that he contends are false. Defendants’ critique of the Alarmism Video reflects a subjective assessment of the contents of the video and is not capable of being proved true or false.”
Facebook didn’t immediately respond to a request for comment.
In July 2021, a federal judge sided with independent fact-checkers at Lead Stories and USA Today in a suit filed by conservative political commentator Candace Owens. She sued over warning labels for “false” content relating to claims she made that the government overcounted COVID-19 deaths.
The court in that case also found that the labels didn’t constitute an untrue statement.
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