By: Tisha Martin
Last August, an Oklahoma District Court Judge held Johnson & Johnson liable for its role in the opioid epidemic in Oklahoma. Oklahoma brought its case against the pharmaceutical company under public nuisance law. The court’s ruling—that a company can be held liable under public nuisance law for the effects of their advertisements—is groundbreaking and raises an interesting question: if a state can use public nuisance law to curb the negative effects of advertising, can the same be used for problems such as fake news?
As Oklahoma v. Johnson & Johnson et.al. illustrates, a public nuisance occurs if the act in question (1) annoys, injures or endangers the comfort, repose, health, or safety of others; or (2) offends decency; or (3) unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or (4) in any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities.
Additionally, 50 O.S. § 2 provides that a public nuisance “is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individual may be unequal.” The act in question must also cause harm. Oklahoma’s nuisance law extends beyond the protection of real or personal property, but Judge Thad Balkman, who presided over Oklahoma v. Johnson & Johnson et.al., notes that Oklahoma’s claim could have sustained a requirement that real or personal property be affected.
The state of Oklahoma specifically challenged Johnson & Johnson’s misleading marketing and promotion of opioids, which included presenting data out of context. Johnson & Johnson’s actions could be challenged by Oklahoma because they are considered commercial speech. Judge Balkman concluded that these acts “annoy, injure, or endanger the comfort, repose, health, or safety of others.” “First Amendment rights may not be used as the means or the pretext for achieving ‘substantive evils’ which the legislature has the power to control”
Fake news could be combated with public nuisance law similarly to how Oklahoma combated the opioid crisis if fake news were considered commercial speech. Commercial speech has fewer First Amendment protections than other types of speech and requires less strict review. Courts consider (1) whether the speech is an advertisement; (2) whether the speech refers to a specific product or service; and (3) whether the speaker has an economic motivation for making the statement to determine if speech is commercial. Fake news is not considered public speech because fake news articles are not advertisements for specific products or services.
Society is not likely to benefit from making commercial speech rules apply to all speech. However, there are dangerous forms of fake news that could be included in the definition of commercial speech if we broadened the definition. If the courts narrowed the definition to only consider whether the speaker has an economic motivation for making the misleading statement that caused the public nuisance, then fake news outlets that profit from their false statements through views, advertisements, and the like could be considered commercial speech.
The infamous idea that “vaccines cause autism,” which lacks scientific evidence, convinces parents that they should not vaccinate their children. This has weakened herd immunity and terrorized society with dangerous, formally eradicated diseases. “Pizzagate” outraged the public and was a substantial factor leading to a shooting incident. These are among many examples of fake news that “annoys, injures or endangers the comfort, repose, health, or safety of others.”
The First Amendment, for good reason, allows for the free expression of ideas. However, there is a problem when those ideas are expressed on a broad scale as facts, produce profit, and have devastating impacts on entire communities. The promotion of false statements by fake news outlets perpetuate widescale confusion and hateful actions.
This is not suggesting that the rules for commercial speech should apply to protests, social media comments, political positions taken for political contributions, genuine journalism, satire, and the like. Fake news is distinguished from the former by its intent, which is to spread false news and cause public chaos. The rules for commercial speech should be applied to those who profit, either from views or sales, by knowingly promoting misleading information that has severe negative impacts on society. Allowing such an application can reach fake news stories that public defamation laws cannot, such as antivax articles, because there is no one who is being defamed. This potential legal remedy could reduce the amount of fake news in society and possibly help facilitate more productive political discussion.
Changing the definition of commercial speech to combat fake news could have negative consequences. An examination of these possible negative consequences is beyond the scope of this post, but they should be discussed and dealt with if courts ever begin to take on this new definition of commercial speech. Additionally, Johnson & Johnson plans to appeal because they feel that, “[t]his judgment is a misapplication of public nuisance law that has already been rejected by judges in other states,”so the application of public nuisance law in this way may not even hold.
In the meantime, fake news is wrecking our society. Statutes that attempt to address the problem might be struck down if their constitutionality is scrutinized. If changing the definition of commercial speech in order to give states and municipalities a cause of action against fake news under public nuisance law, then we should explore it.