Colorado Newspaper Battle Could Define What’s ‘Fake News’ And What’s Not

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A Colorado newspaper is fighting claims that it peddles fake news stories. The publisher of Grand Junction's Daily Sentinel is accusing a state lawmaker of defamation and threatening a lawsuit. If filed, legal experts said it would be the first of its kind, potentially setting a legal definition for what is considered fake news and what is not.

The dispute began with an opinion column in the newspaper supporting a bill that would give journalists and others greater access to public records. Sen. Ray Scott, a Republican of Grand Junction who serves as assistant majority leader in the Senate, postponed the hearing and vote.

The column urged him to advance it.

"We call on our own Sen. Scott to announce a new committee hearing date and move this bill forward."

Scott took issue with the column on Twitter. "We have our own fake news in Grand Junction, " Scott tweeted.

He then added a separate statement on Facebook.

"The very liberal GJ Sentinel is attempting to apply pressure for me to move a bill," Scott said. "They have no facts, as usual, and tried to call me out on SB 40 know as the CORA bill. They haven't contacted me to get any information on why the bill has been delayed but choose to run a fake news story demanding I run the bill." 

The accusation the column was "a fake news story" raised the ire of Jay Seaton, the Sentinel's publisher.

"I'm accustomed to all kinds of criticism for what we do, that comes with the job," he said, adding, "I consider that word [fake news] to be an attempt to undermine the speaker. That's where this bumps up against the First Amendment. When you've got a government actor who doesn't like something he's seen and tries to diminish its credibility, then you've got real problems."

And, potentially, a lawsuit. Seaton said he's going to cool down for a couple of weeks, but is looking at his options for filing the suit, which is likely to put the "fake news" term in the spotlight, said Steven Zansberg, an attorney who has represented the press in Colorado, including the Sentinel, though not in this case.

Zansberg noted that the Sentinel isn't alone in facing such accusations.

Senate Majority Leader Chris Holbert said he doesn't want the fake news lawsuit to reach court.
Credit Bente Birkeland / Capitol Coverage
Senate Majority Leader Chris Holbert said he doesn't want the fake news lawsuit to reach court.

"We are seeing a trend, not just here in Colorado but that politicians, for a variety of reasons have taken to calling very legitimate media entities, whether it be The New York Times, The Washington Post or CNN fake news," he said. "It's intended to delegitimize those sources for news."

From a legal point of view, the question is not just whether such accusations are fair to those news outlets, but if it is a good idea for news organizations to seek vindication for arguably tarnished reputations in court.

George Freeman worked for more than three decades as the in-house counsel for The New York Times.

"I see nothing wrong with the paper doing it," he said. "I think they're in the right to do it. I think the line has to be set: people just can't call whatever they don't like 'fake news,' and that's what [Scott] is essentially doing."

Freeman is now the executive director of the nonprofit Media Law Resource Center, which has a mission to protect freedom of the press.

Though he supports Seaton, The New York Times probably would not. That newspaper has a strict policy against filing libel claims against detractors. One reason for that is because the press doesn't want to suppress the speech of others. There's also a larger legal reason: Freeman said bringing cases like this could ultimately backfire on the press, because legal arguments made in such cases could later be used against them.

"Then the next time you're arguing something is opinion to win your case, maybe the court will look at this case and say, 'No…' it's similar to this case where the judge decided it's a fact," Freeman said.

The fight between the newspaper and the state senator is exacerbated by the fact that the bill at the heart of their dispute is something many journalists in Colorado want to see become law. The bill would make it easier for news organizations and other members of the public to analyze digital data through open records. The bill's Democratic sponsor now worries the measure is in jeopardy.

And the battle over what is news in Colorado comes as state Republican leaders hope to create an open dialog with the press to distinguish themselves from President Trump, whose battle with the media doesn't show any signs of letting up. For the first time in years, state Republicans are holding multiple media briefings each week and Republican senators recently hosted a reporter meet and greet. Some worry this potential lawsuit will be a setback.

"There's some risk of squelching open dialogue, and that's one thing I've been trying to encourage as majority leader," said Senate Majority Leader Chris Holbert, a Republican.

To him, "fake news" is a relative term and the fight between the newspaper and his colleague is a sideshow.

"What it means to one person might be different than another," said Holbert. "Are stories made up entirely out of whole cloth? In this instance, it seems like there are differing perspectives on the same reality. This really seems to be rather unnecessary."

Capitol Coverage is a collaborative public policy reporting project, providing news and analysis to communities across Colorado for more than a decade. Fifteen public radio stations participate in Capitol Coverage from throughout Colorado.