Sue over fake news? You'd face some tough realities

Unlike the gunman accused of firing a rifle inside a Washington pizza restaurant after getting scammed by fake news, Morris Lefkowitz acted much more civilly when he got scammed by a Minneapolis newspaper advertisement 60 years ago.

He went to court.

Over the decades since, Lefkowitz's case has helped courts decide when they should protect consumers from advertisements that are too good to be true. Studied by generations of lawyers, his plight helps demonstrate how the law evolves when new ways to mislead the public emerge.

Are lawsuits over fake news next? Maybe. But like Lefkowitz, litigants have some creative thinking to do.

Lefkowitz vs. Great Minneapolis Surplus Store, Inc., arose after the store advertised three fur coats valued at "up to $100" and a stole valued at $139.50 — on sale for $1 apiece. Be there at "9 a.m. sharp," the newspaper ad read. "First Come First Served."

Lefkowitz was there first but was not served. Arguably, he should have known better under the doctrine of caveat emptor, or "buyer beware." Undeterred, he sued in Minneapolis Municipal Court and won a judgment for the stole but not the coat.

The store appealed, claiming the ad was a "unilateral offer" that could be withdrawn anytime. Lefkowitz represented himself at the Minnesota Supreme Court and prevailed over the stole on grounds that the deal had all the makings of a legal contract. He lost over the coat because the quoted price of "up to" a certain amount was too indefinite to be binding.

Law school students study this case to learn the basic contract-law principles of offer and acceptance. Professors use the case to discuss whether the Minnesota Supreme Court correctly deviated from caveat emptor.

Based on current law, overcoming caveat lector, or "reader beware," will be more difficult for fake-news lawsuits.

It is easy to think defamation law applies to fake news, but defamation occurs when someone's reputation is tarnished by lies, and not necessarily when people act on lies by shooting, voting or otherwise.

Before Sunday's restaurant shooting, the most widely debated incident of fake news was a story headlined "FBI agent suspected in Hillary e-mail leaks found dead in apparent murder-suicide." The article, entirely fake, was shared on social media thousands of times before the election.

Duped voters have no defamation claim. And even if Clinton herself sued, she could recover only monetary damages and would have to overcome the "actual malice" barrier that makes defamation claims extremely difficult for public figures.

In 2014, former Minnesota Gov. Jesse Ventura won a defamation case (but lost on appeal) by linking a published falsehood to lost income he claimed in his work as a television personality. Clinton has no similar claim.

What's more, although state and federal statutes make deceptive trade practices and false advertising illegal, the laws are geared toward protecting consumers who buy things, not voters who buy into things.

The strongest claim from fake news might come from consumers who got tricked into buying a product based on false advertising that looked like news. Also, businesses such as the Washington pizzeria might consider suing on grounds their business was harmed.

The problem is, Section 230 of the federal Communications Decency Act provides broad immunities for websites that host or republish speech. The law makes it exceedingly difficult to go after Facebook and other websites that provide platforms for sharing fake news.

Indeed, the First Amendment lurks anytime the government tries to prevent or punish expression, even false expression. In the 1920s Minnesota enacted a law to shut down scandalous tabloids, but in 1931 the U.S. Supreme Court struck it down.

Subsequently, the court extended constitutional protection to satire, and often the line between fake news and satirical sites such as the Onion is blurry.

The most obvious barrier to fake-news lawsuits is a practical one. It has been staring supermarket shoppers in the face for years after Morris Lefkowitz got duped. Tabloid headlines such as "Elvis is alive and running for president!" have taught decades of news consumers that if they did not already believe some news was fake, they'd better start.

As it stands, the law is wary to protect news consumers from themselves.

Steven P. Aggergaard is a Minneapolis attorney at Bassford Remele, PA.