Published in Litigation, Volume 48, Number 3, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
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Truth Suits
Litigating Against the Viral Spread
of Disinformation
MICHAEL J. GOTTLIEB AND MERYL CONANT GOVERNSKI
Michael J. Gottlieb is a partner and Meryl Conant Governski is an associate with Willkie Farr & Gallagher LLP, Washington, D.C.
Before the term “super spreader” became inseparable from the
coronavirus, it was sometimes used to describe individuals (and
artificial intelligence) responsible for the “viral” spread of online
information. That parallel is sensible. In many ways, disinforma-
tion and viruses are similar: A germ of an idea passes from a host
to direct contacts who (knowingly or unknowingly) contaminate
their own contacts, thereby perpetuating an exponential spread
that is difficult to contain.
Disinformation has serious consequences for democracy, na-
tional security, public health, and individual rights. Increasingly,
victims are attempting to combat disinformation via litigation.
Litigation is an imperfect and inefficient tool for most victims
of disinformation. Federal and state laws were not designed to
combat the viral spread of information in the modern social me-
dia ecosystem. Thus, for the foreseeable future, victims’ ability to
challenge the spread of disinformation will continue to depend
less on lawsuits and more on communications strategies (includ-
ing access to the traditional news media) and the voluntary poli-
cies enshrined in private companies’ user agreements.
In court, disinformation victims most commonly seek to rem-
edy their harm by alleging that they were defamed. Before the
internet existed—indeed, well before there was electricity—the
common-law tort of defamation existed as a tool to protect an
individual’s reputation. William Shakespeare wrote in Othello:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
’twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
The tort’s imperfections match its age. More than a century
ago, a Columbia Law Review article described the law of defama
-
tion as the legal doctrine most “open to criticism for its doubts
and difficulties, its meaningless and grotesque anomalies” and
as “absurd in theory, and very often mischievous in its practical
operation.” See Van Vecthen Veeder, The History and Theory of
the Law of Defamation, 3 Colum. L. Rev., no. 8, Dec. 1903, 546–73.
As lawyers, we have witnessed the strengths and weaknesses of
defamation litigation as a strategy against the spread of disinfor-
mation. We have represented victims of disinformation, relying on
defamation causes of action, in which our clients have alleged that
viral online conspiracy theories, motivated by partisan ends, have
upended their lives and devastated their reputations. We have also
defended clients against claims of defamation based on statements
about issues of public concern. Our work in this space has even
pulled us into court as defamation defendants, when a defendant
