How Social Media and General Media Have Ruined the Burden of Proof

By Andrew John Yanik

Instagram Handle: @andre_jyy

June 13th, 2020

For many conservatives, one of the greatest challenges of daily life has been to navigate and engage in what we would hope to be civil discourse. As many if not all of us know this is never really the case. When we do try to take the opportunity to explain why a post made was inaccurate or exaggerated statements, we are lobbed back a variety of insults and terms that allow some people on social media to box us into categories as to dismiss our arguments as a whole. “RACIST!”, “SEXIST!”, “BIGOT!”, “NAZI!”; all terms conservatives have come accustomed to seeing and if you haven’t you probably have not been on social media all that long.

However, these terms and dismissals often overshadow the larger issue that conservatives miss when trying to engage in debate or discourse and as bad as it may be it is actually not the nature of being negatively labeled. No, in fact it is a much bigger problem: a complete alteration of what it used to take to make a statement about politics at all. This of course is the idea of the burden of proof and for those who are unfamiliar, in a legal sense this means that it is the responsibility of the person making an argument that a statement is true to prove that it is exactly that: true. This very unfortunately has somehow changed as fake headlines and posts have run rampant on social media with little citations, proof, or even anyone of authority to verify if they are true before they are posted and the greatest shame of it all is that no one really bothers to check before allowing them to go viral. Thus the responsibility to disprove them falls onto conservatives more often than not; although I do not want to say that conservatives never post fake news as we all know this is entirely false. More often than not though the burden still hangs over our heads to do the opposite of what every law school and debate instructor would ever tell us to do at all and this of course is the great tragedy of social media and although would fall under the idea of free speech, does most certainly push its limits.

Now, I do understand how helpless some of this may feel if it all falls under any individual’s First Amendment rights as a United States citizens and perhaps solutions may not seem possible on a more micro level, but they are in fact very possible on a larger scale and just briefly I want to tell you some of my growing theories of how to stop the spread of fake news and force civil discourse to return:

1. Understand the nature of free speech restrictions (Schneck vs. United States 1919): This first Supreme Court Case established the notion of a “clear and present danger” that some free speech can have and is most commonly exemplified as yelling “fire in a crowded theatre” or “bomb on an airplane” as a way to show the most extreme cases. The major problem with this notion is that it is perfectly okay to yell both of those things; if there is a fire in a theatre or a bomb on a plane. The problem is not with the saying but with lying in your speech in order to create chaos and disorder and this is exactly where I think the government has a grand opportunity to further the clear and present danger test especially when it comes to the incitement of certain acts or the publication and distribution of fake news that leads to violence, disorder, and chaos as we all too often see it today. There is a very clear push for policy that conservatives can make to maintain better order and punish those who look to push fake stories without getting into a never ending debate. We ought to have this case reviewed and the extent of its provisions deeped as to encompass a larger scope of misinformation.

2. Push to revise New York Times vs. Sullivan (1964): The second major Supreme Court decision that allows for the news media to extend their reach in creating fake stories with very little punishment is the case of NYT vs. Sullivan. In this case, the Supreme Court established extremely loose guidelines for what can be considered slander or libel in the media. This is also in addition to the fact that the side of the prosecution has to prove “actual malice” and that the side of the defense intentionally disregarded true information or recklessly went forward with their story. This as one can imagine is virtually impossible as you cannot prove someone’s exact intent when they do something like this and in fact encourages reporters to move forward with their opinion pieces and conclusions about a given situation without waiting for all of the facts to come out. The very general language and how much has to be proved to not only see that a story is false but to prove it was intentionally false is exactly why this case needs to be revised or overturned. Oftentimes, because this case was used to promote the work of Dr. Martin Luther King Jr., the strawman argument comes up that if this case were to be overturned that the party looking to do so would be against the work of King and thus be dismissed as racist but of course this is not the case. This case has been manipulated and ruined all on the back of Dr. Martin Luther King Jr. for the profit of the media to create fake news stories with minimal work to retract or apologize and with the avenue being as impossible as it is to sue them, there is little to no incentive for them to stop.

Of course I strongly encourage anyone who reads this article to do their own research and develop their own unbiased understandings, but I certainly feel as though these cases are a major supporting pillar for the fake news media. With their revision, the American people can finally reduce the profit made off of falsified or exaggerated stories by holding major media outlets responsible in court for defamation, damages, or perhaps inciting violence.

There is still much more work to be done to return to a more honest media that Americans saw just decades ago, but I hope through this work I have inspired you to make change in the system we have seen fail us, as this is one of only a few articles that looks to make the case for logical solutions without simply complaining about the problems or demanding that the entire system be abolished as we often see from extremists today.

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Work Cited

1. Supreme Court Ruling Information: NYT vs. Sullivan https://www.oyez.org/cases/1963/39

2. Supreme Court Ruling Information: Schenck vs. United States https://www.mtsu.edu/first-amendment/encyclopedia/topic/18/legal-terms-and-concepts-related-to-speech-press-assembly-or-petition