American commentators were quick to dismiss Paris Mayor Anne Hidalgo's threat to sue Fox News over its false and mistaken claims that certain areas of the city were "no-go zones" for non-Muslims. It's true that Fox News doesn't broadcast in France, and also true that in the U.S. a municipality ordinarily can't sue for defamation.
But these objections are really beside the point of the threatened suit: How should the news media be policed to stop them from making stuff up? If you think the answer is always "more speech," think again. The U.S. system has always recognized a role for the courts, and common sense suggests that sometimes the threat of liability might actually be necessary to make the system work.
Consider the context of the Fox News reports and their consequences for the truth. Once the statements were out there, the assertions about no-go zones wouldn't die. Sometimes the truth is great and will prevail, and more speech is the cure for false speech. But sometimes lies can actually drive out the truth.
A famous paper by Nobel economist George Akerlof showed there is a market for lemons when there is asymmetric information about car quality-- when the seller knows more than the buyer. That kind of market distortion can happen in the news world as well, where a similar information asymmetry arguably exists. The media in general know (or are supposed to know) better than the public where the truth lies. That's one reason we often believe what we read or hear.
Case in point: One of the most painful scenes in recent days was Louisiana Gov. Bobby Jindal on CNN insisting that no-go zones existed in some form in Britain, and struggling to redefine those zones so he wouldn't seem like a liar.
I was a student with Jindal 20 years ago and have followed his career with fascination. He's extremely intelligent, notwithstanding his critics. But Jindal, a Republican, was trapped by the fact that he assumed that what he or his aides had heard on Fox must be true. The recantations were secondary.
If a smart and cautious politician fell into the trap of believing what was on the news, the same will be even more true for the public.
So what's the fix? Recantations won't always drive out falsehood. Attention by other media might backfire, repeating the lie until it starts to seem true.
What's needed is an incentive system so that Fox won't make mistakes like this in the first place. Fox is a business. And the best incentives for business come from the bottom line. Does anyone believe that Fox will lose any viewers as a result of its errors? That seems highly unlikely. If anything, the publicity may make Fox viewers identify with the network as scolded, marginalized and vulnerable.
Here's where libel law comes in. When it comes to individuals, we recognize that the media won't have sufficient reason to be careful about defamation unless we allow legal redress.
We carefully set the standard for public officials so that the media outlet has to have known it was lying or else recklessly disregarded the truth of a defamatory fact that it reported. And we wisely protect opinion. Then we allow the lawsuit, and are prepared to impose monetary damages.
You could easily imagine something similar for groups or municipalities. Indeed, the precedent of the U.S. Supreme Court technically allows defamation suits against groups. In Beauharnais v. Illinois, a 1952 decision written by the great Justice Felix Frankfurter, the court upheld an Illinois law that made it a crime to depict the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion." Frankfurter's reasoning was that libel law had an excellent and ancient legal pedigree. For originalists, it is surely relevant that the framers of the Constitution certainly didn't intend to eliminate libel law when they enacted the First Amendment.
Today, most constitutional law experts would tell you that the Beauharnais precedent is on shaky ground in light of subsequent developments in First Amendment jurisprudence. But the decision has never been directly overruled, and is still on the books.
When it comes to a municipality, proving falsehood, reckless disregard and damages would arguably be even easier than it would be for groups. Fox News recklessly disregarded the truth about no-go zones in Paris. That much is easy to determine. Paris could in theory claim reputational damages just like an individual, and declining tourism from the Fox News-watching demographic could prove monetary damages.
I can think of worse things than a libel suit against Fox charging reckless disregard for the truth as well as defamation. Free speech would not be significantly undermined. If Paris was a woman, as the film title has it, she'd have a case. And maybe next time Fox would think twice about allowing falsehoods on the air.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.
Editorial on 02/01/2015