Fake News, Open Records, and the Spat between a Colorado Senator and Newspaper

How do responsible citizens interact with news media? What does good journalism look like? Is it ever fair to apply the term “fake news” to stories from otherwise reputable media outlets?

These are some of the questions that a panel of media experts addressed March 15 at a forum hosted by the Colorado Freedom of Information Coalition (CFOIC) and moderated by Kyle Clark of Denver’s 9News. The half-hour event, in which I participated, is available through 9News’s Facebook feed, and I encourage people to listen to the discussion.

Here my goal is to touch on some of the issues we discussed, focusing on a dispute between Colorado Senator Ray Scott and the Daily Sentinel of Grand Junction. Jay Seaton, publisher of the Sentinel, appeared on the March 15 panel to discuss that dispute; Scott declined an invitation to join the panel.

Background of the Dispute between Scott and the Sentinel

Joey Bunch of ColoradoPolitics.com lays out the basic details of the dispute at hand.

On February 8, the Sentinel editorialized in favor of Senate Bill 40, “Public Access To Government Files,” a bill to make it easier for members of the public to access government records. Initially Scott delayed consideration of the bill, and the Sentinel seemed to imply that Scott was acting against its passage:

SB 40 deserves a fair hearing before the full Senate. We call on our own Sen. Scott to announce a new committee hearing date and move this bill forward. Open records shouldn’t be a partisan issue. We have a difficult time understanding why anyone would oppose easier access to government data, which belongs to the public.

But Scott claimed he delayed the bill “to work out compromises in advance of a vote” (Bunch’s words) to help it pass. In a Tweet, Scott referred to the “very liberal” Sentinel as “our own fake news in Grand Junction.”

In a follow-up opinion, Seaton threatened to sue Scott over the allegation:

[T]here is a difference between criticism of a news story, editorial stance or perceived bias and what Sen. Scott has done. His tweet is patently, provably false.

Worse, he made his false statement knowingly for the purpose of diminishing the only real asset this newspaper has: its credibility. . . .

I don’t think I can sit back and take this kind of attack from an elected official. We are brokers in facts. Words have real meaning in this business. Sen. Scott has defamed this company and me as its leader.

To borrow a phrase from another famous Twitter user, I’ll see you in court.

That’s an extraordinary threat. Before I evaluate it, I want to discuss a bit more history of the bill in question.

As originally introduced, SB 40 was supported by a broad coalition including CFOIC, Colorado Common Cause, and the Independence Institute (for which I have written articles).

On March 1, the Senate State, Veterans, and Military Affairs committee amended the bill before passing it on to Senate Appropriations. On March 14, Appropriations passed the bill on to the senate as a whole.

The first committee, on which Scott sits, considered and passed six amendments, including a particularly contentious one, L.011, which “passed without objection.” The upshot is that Scott supported amendments to the bill, then voted in favor of the amended bill.

Amendment L.011 allows public officials to deny access to the public “any records the inspection of which is reasonably likely to compromise the safety or security of any natural person.”

At first glance, Amendment L.011, requested by Colorado Attorney General Cynthia Coffman, doesn’t seem especially far-reaching. But critics fear it would grant too much leeway to elected officials and effectively allow them, at their personal discretion, to hide records from public view.

A March 2 editorial by the Denver Post indicates the nature of the criticism of the amendment:

Let’s pause a moment to think about just how broadly that could be interpreted by a public official hoping not to release documents that make them look bad. If the documents were bad enough, an elected official could be the “natural person” and the danger could be the public outrage that would ensue from such documents being released.

Jeffrey Roberts of FOIC voiced a similar concern (via email):

My concern is that some of the amendments added in the Senate state affairs committee could be broadly interpreted to let governments withhold records currently available for public inspection. The point of SB 40, as introduced, was to make sure the public has access to public records in useful formats that allow for analysis and a better understanding of the records. If records are kept in a spreadsheet, the public should be able to get a spreadsheet after the removal of any confidential fields of information.

The bill, as introduced, was about format. It didn’t make available any records currently not available nor did it exempt any records currently open for inspection.

Under one of the amendments, a records custodian could deny requests for “any records the inspection of which is reasonably likely to compromise the safety or security of any natural person.” I don’t know how records custodians might interpret that clause, and it may be very difficult to challenge it if you feel that it’s been applied improperly.

See also Roberts’s write-up about the bill for CFOIC.

For what it’s worth, although I have not studied the bill in detail, offhand the rationale for the initial bill and the arguments against the amendments strike me as persuasive.

With that background under belt, let’s return to the dispute between Scott and the Sentinel.

A Dubious Charge of Fake News

Notably, the Sentinel didn’t outright say that Scott opposed “easier access to government data”—but it did seem to insinuate as much. A generous interpretation of Scott’s motives is that he sincerely wanted to expand public access to government records, and he delayed the bill to work out amendments he knew the bill needed in order to pass. A less generous interpretation is that he delayed the bill so that he could help weaken the open-records provisions. Which of those stories is closer to the truth I have no idea. (I have a query out to Scott and will include his reply here when and if I receive it.)

Any claim based on divining Scott’s motives is bound to be pretty weak, so the Sentinel‘s initial insinuation seems gratuitous to me.

That said, at most Scott had a reasonable complaint about the insinuation. If he would have simply called out the Sentinel for making insinuations about his motives, he would have been on pretty solid ground. Calling the Sentinel as a whole a “fake news” operation was definitely out of line.

But Seaton threatening to sue Scott over the remark is also out of line, in my view. I will be surprised if Seaton actually follows through with a suit, and, if he does, I will be surprised if any court takes it seriously. For starters, Scott does at least have the semblance of a reasonable complaint about the op-ed in question. Proving that a sleight as vague as “fake news” is actionable libel would be impossible, I expect. Beyond that, I doubt that Seaton can prove that Scott’s claim damaged his newspaper, which after all buys ink by the barrel and which has received considerable positive publicity over the matter.

Frankly I think both Scott and Seaton were unwise to escalate the dispute. But the escalation is not entirely surprising, given the dynamics: Scott implied that he was persecuted by an out-of-touch media; the newspaper implied that it was smeared by a powerful politician.

Given that the dispute did escalate as it did, at least we can seek to learn from it.

What Is Fake News?

What lessons can we draw from this story regarding fake news? Let’s begin with Scott’s description of fake news (again via Bunch’s story):

We all have our own definitions of “fake news.” What one finds, when one looks closely at the issue, is that it’s a subjective, eye-of-the-beholder thing. An editorial that seeks to impugn my actions and motives, by drawing false conclusions without first checking for countervailing facts or evidence, as professional standards of journalism dictate, struck me at the time as an example of “fake news.” So out went “the tweet heard round the world.”

I think in terms of legal actionability, Scott is exactly right. To preserve freedom of speech, the courts have got to grant substantial leeway to the interpretation of such terms.

In terms of the ethics of civic engagement, Scott is dangerously wrong. Conflating a respectable newspaper such as the Sentinel with sites that intentionally mislead their readers is unfair, and it encourages people to ignore real news and take more seriously dubious “news” sources.

As Jason Salzman has uncovered, Scott himself has shared fake news via social media. Scott shared one item claiming that WikiLeaks “confirms Hillary [Clinton] sold weapons to ISIS”; he shared another item with a fake quote attributed to Ronald Reagan about Trump.

Obviously it is not helpful for an elected official to share fake news or to dubiously accuse a real newspaper of being fake news, much less to do both.

On the other hand, I do think that sometimes it is warranted to charge usually-responsible media outlets with publishing fake news. On this point, I disagree with First Amendment attorney Steve Zansberg, also the president of CFOIC, who writes:

Responsible and democracy-loving public officials should, or dare I say must, reserve the “fake news” label exclusively for the type of garbage for which it was created and has come to be understood: complete and utter fabrications that have no basis in fact and no legitimate sources to support the published allegations. That label is obviously inappropriate for the reports published in The New York Times, Washington Post, CNN, and other legitimate news outlets who have adopted, and strenuously adhere to, well-established canons of journalistic ethics.

But sometimes “legitimate news outlets” do publish fake news. For example, when the New York Times published articles by Jayson Blair, who fabricated material for his “stories,” that was fake news. Obviously the difference between the New York Times and a fake news site is that, when the Times‘s editors learned what had happened, they were horrified, and they fired Blair, corrected the record, and took appropriate safeguards to prevent such abuses in the future.

There is a huge difference between an outfit dedicated to producing fake news and a reputable publication that strives to get the facts right and yet sometimes fails.

I think it’s reasonable to use the term fake news widely or narrowly as appropriate. If an entire web site is devoted to manufacturing fake news, then we reasonably call it a fake news site. If a particular story is substantially fake, then we reasonably call that story fake news. And, I think, if an aspect if an otherwise-accurate story is fake, then we reasonably call that aspect of the story fake news. As I’ve written before, I also think it makes sense to distinguish intentional fake news from unintentional fake news. The key is to offer the relevant context to forestall confusion.

For some examples of what I consider fake news, see my recent articles on fake news broadly and on a particular case of fake news related to Donald Trump’s claims of wiretapping.

As I suggested during the panel discussion, the relevant standard is reality, not an authority and not your feelings. Insofar as an article gets the facts wrong, then its claims are fake to that degree—regardless of who makes the claims. As much as I sympathize with Zansberg’s concerns about smearing “legitimate” news organizations, I also see a danger in granting those organizations unquestioning trust. To get to the truth, we need to approach what we read critically, notice the quality of the evidence presented, and pursue additional research as needed.

What we should strive never to do is throw around the term “fake news” as a pejorative without supporting evidence. And when others do that, we should call them on it. At the same time, we should not shy away from criticizing reports or aspects of reports as fake when we can demonstrate in what respect they are fake. And then in turn we should expect others to evaluate our criticisms and sometimes push back.

Civil society does not depend on us always agreeing about what are the facts and what is the most reasonable interpretation of the facts. It does depend on us agreeing that the facts matter, doing what we reasonably can to root out falsehood, and striving to learn and relate what the relevant facts are. The responsible citizen ultimately rests his case in reality. The New York Times is right: getting to the truth often is hard. But it is possible.