Donald Trump is trying to resurrect a lawsuit against CNN on appeal following his defeat in a lower court when he tried and failed to claim that the network defamed him when it used the “Hitlerian” term the “Big Lie” in reference to his pervasive and debunked claims of voter fraud in the 2020 election.

As Law&Crime previously reported, a judge dismissed Trump’s 2022 defamation case against CNN in July. This was “erroneous,” Trump’s appeal in the Eleventh Circuit entered on March 29 argues. He first filed a notice to appeal the ruling last December, according to a review of the appellate docket in Florida.

The court’s error, the former president’s full appellate brief outlines, was due to the lower court’s reliance on just five of 60 statements made by the network that Trump says unfairly connected him to “ongoing false claims of knowing lies and misleading Nazi linkage throughout the defendant’s programming.”

Why do seemingly serious people repeat crazy political lies? This was the question the American anthropologist and political scientist Lisa Wedeen explored when she studied the Syrian dictatorship in the 1990s.

She was struck by how people who were usually rational in private would repeat the utterly absurd slogans of the regime, such as claiming that the dictator Hafez al-Assad was the greatest chemist in the world.

“From the moment you leave your house, you ask: what does the regime want?,” a Syrian explained to her. “The struggle becomes who can praise the government more.” The bigger the lie you uttered, the more loyal you were.

“The regime’s power resides in its ability to impose national fictions and to make people say and do what they otherwise would not,” Wedeen concluded. “

This obedience makes people complicit; it entangles them in self-enforcing relations of domination, thereby making it hard for participants to see themselves simply as victims of the state’s caprices.”

I was reminded of Wedeen’s research when the US Congress finally selected a speaker after weeks of chaos. Their choice, Congressman Mike Johnson of Louisiana, is best known for ardently supporting ex-president Donald Trump’s baseless claims that the 2020 election, which Trump lost to Joe Biden, was rigged. Johnson rallied more than 100 House Republicans to question the integrity of the election. He constructed spurious legal arguments that tried to discredit the vote, though his proposals were thrown out by the US supreme court. He raised the unfounded theory that the voting machines used in the election were tampered with.

This claim is so groundless that Fox, the network that supported the allegation, had to pay nearly a billion dollars in a settlement with Dominion, the company that makes the machines.

Many of the Republican representatives who supported Johnson’s candidacy have admitted both publicly and privately that the elections were, in fact, not falsified. Yet when journalists faced a gaggle of Republican congressmen and questioned Johnson’s record on this blatant lie, his colleagues jeered and he mockingly said: “Next question” – as if the facts were irrelevant here.

And in a sense, they are. Agreeing to Trump’s claims about the rigged election is the absurdity you have to pledge allegiance to in order to show you belong to the tribe. It ensures your fealty by making you complicit. For anyone who has lived in authoritarian regimes, it’s a familiar sight.

Along with Wedeen’s Syrian example, I’m reminded of the Czech dissident and playwright Václav Havel’s essay The Power of the Powerless, where he tells the story of a greengrocer in communist-era Prague who puts up pro-regime posters in his shop window. The greengrocer doesn’t believe the communist slogans; the people who make the slogans don’t believe in them; and the people who read them don’t believe in them.

But as long as everyone plays along, the system continues. It’s the act of not believing and yet pretending, rather than of fervently believing, which is the power of such systems. Your will is corroded: you are made into moral mincemeat that can be shaped any which way by the leader.

Havel nobly suggested that in order to fight such a system, what was needed was to “live in truth”, start being honest. Republican politicians face none of the danger communist-era Czechoslovaks or Syrians under the Assads have, but living in truth seems beyond them.Contradicting Trump’s absurdities risks falling out of favour with the leader and his supporters.

Altogether, about 40% of Americans think the 2020 vote was illegitimate, and about 60% of Republicans (the figures fluctuate). A democracy will struggle to survive, let alone flourish, when such huge swathes of its population see it as their badge of loyalty not to trust its most fundamental processes.

But if the “rigged” election claim is more about identity than evidence, it also means it will be hard to fact check our way out of this situation. The issue can’t simply be resolved by “trusted” sources, even those on the far right, who can communicate the truth about the election to Trump supporters. Instead, sources only become trusted if they agree to the lie.

Pledging loyalty to the “big lie” is more about identity than knowledge – and to fight it entails understanding the need for belonging and meaning it fulfils. Authoritarian propaganda can give the illusion of status and at its extremes a sense of supremacy to compensate for the lack of real agency.

Self-styled “populists” can flourish in what sociologists call “civic deserts”: frequently rural areas where the old institutions that bonded communities, the local clubs and town halls have disappeared and where civic engagement is particularly low.

But such communities can start to be regenerated for a digital age with, for example, online as well as offline town halls; reinvigorated local news that responds to people’s priorities; and online municipal budget making and other innovations that help people feel part of a community and have ownership over local politics.

Historical lessons from understanding and fighting propaganda can be useful here too. When he investigated the psychology of German soldiers in the second world war, the British psychiatrist Henry Dicks thought that counterpropaganda needed to stress the bonds people had that went beyond belonging to the Nazi Volk: the emotional bonds they felt with loved ones and relatives, for example.

The competition with the big lie is not just, or even primarily, about fact checking. It’s a competition between different models of belonging: can we build alternative communities that are more benign and yet fulfilling than the ones offered by the conspiracy theorists?

A voter fills out a ballot in Jackson, Miss., on Tuesday. Federal and local officials have worked closely with researchers to track rumors and conspiracy theories in recent elections but that cooperation is fading under pressure from conservatives.

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A voter fills out a ballot in Jackson, Miss., on Tuesday. Federal and local officials have worked closely with researchers to track rumors and conspiracy theories in recent elections but that cooperation is fading under pressure from conservatives.

Brandon Bell/Getty Images

In Marion County, Fla., elections supervisor Wesley Wilcox has stopped using the word “misinformation.”

Not because lies or misleading rumors about elections are any less prevalent in his county than the rest of the country. Wilcox says he regularly interacts with groups that aim to find what they see as rampant fraud in elections.

But Wilcox, who is a Republican, has had to shift his vocabulary to talk about those falsehoods because others in his party see the term as code for censorship of conservatives.

“In Republican circles, ‘misinformation’ is a dog whistle,” Wilcox said. “All of a sudden, man, you got skewered if you even mention the word.”

An election partnership that Wilcox helps lead has even stopped advertising a service that allows local officials to report false voting information online, for fear of conservative backlash — a sign of broader concerns of those who work to safeguard elections as America nears another round of presidential voting.

Experts say a campaign of legal and political pressure from the right has cast efforts to combat rumors and conspiracy theories as censorship. And as a result, they say, the tools and partnerships that tried to flag and tamp down on falsehoods in recent election cycles have been scaled back or dismantled. That’s even as threats loom from foreign governments and artificial intelligence, and as former President Donald Trump, who still falsely claims to have won the 2020 contest, is likely to use the same tactics again as he pursues the White House in 2024.

Added Wilcox: “Everybody is gun-shy.”

“Open season”

As Nina Jankowicz sees it, the opening salvo came in the spring of 2022, when a right-wing campaign quickly snuffed out a Department of Homeland Security initiative called the Disinformation Governance Board.

Jankowicz, who has written books about Russian information operations and online harassment, was tapped to lead the board. The federal government described it as a working group, without “any operational authority or capability,” tasked with coordinating efforts to identify false and misleading claims and share facts about security concerns, from elections to natural disasters.

But the combination of the board’s ominous-sounding name and DHS’s poor efforts to communicate its purpose made it catnip for right-wing influencers, who quickly seized on the board and Jankowicz herself as avatars of a nefarious plot to censor Americans.

“The Biden Administration’s decision to stand up a ‘Ministry of Truth,’ is dystopian in design,” said now-House Speaker Mike Johnson, R-La., shortly after the board was announced. “The government has no role whatsoever in determining what constitutes truth or acceptable speech.”

Supporters of former President Donald Trump look at merchandise ahead of his rally in Hialeah, Fla., this week. Trump continues to falsely claim he won the 2020 election, fueling conspiracy theories around the voting process.

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Supporters of former President Donald Trump look at merchandise ahead of his rally in Hialeah, Fla., this week. Trump continues to falsely claim he won the 2020 election, fueling conspiracy theories around the voting process.

Ricardo Ardeuengo/AFP via Getty Images

After a barrage of death threats and abuse, Jankowicz resigned, and DHS scrapped the board altogether. Jankowicz told NPR that the timid effort by the federal government to defend her or push back against the allegations sent a clear message.

“That showed … that it was open season on researchers, on civil servants, on anyone who was working in this space,” Jankowicz said.

Amid that furor, in May 2022, the Republican attorneys general of Missouri and Louisiana filed a lawsuit accusing the Biden administration of colluding with social media companies to censor conservative speech, by pressing platforms to take action on misleading posts about COVID-19 and elections.

This July, a Trump-appointed federal judge ruled the government had likely violated the First Amendment and issued a sweeping injunction blocking agencies’ communications with platforms about most content. The injunction was narrowed by an appeals court, before being put on hold last month by the Supreme Court, which is slated to hear the case this term.

Pressure is coming from Congress as well, where the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government, led by GOP Rep. Jim Jordan of Ohio, a Trump ally, is conducting its own probe into alleged collusion between the Biden administration and tech companies to unconstitutionally shut down political speech.

To be sure, there is an open debate about what role the government should take in countering rumors or lies about high-risk subjects like elections and public health, and widespread skepticism about the power social media companies wield over public discourse.

But the government, platforms and researchers say the lawsuit and investigation unfairly mischaracterize their communications. They say that while officials and outside groups flag content they believe may break the social networks’ rules, it’s ultimately up to the tech companies to decide what action to take.

Rep. Jim Jordan, R-Ohio, center, is leading a congressional investigation into what he and other conservatives describe as a joint effort by the federal government, researchers and tech companies to censor conservative points of view. He’s seen here after a March hearing with Rep. Matt Gaetz, R-Fla., left, and now-Speaker Mike Johnson, R-La.

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Jordan is subpoenaing researchers and social media companies, demanding years of email correspondence and conducting hours-long interviews, which his staff has used to make explosive accusations against federal agencies, nonprofit organizations and academic institutions.

“What the federal government could not do directly, it effectively outsourced to the newly emerging censorship-industrial complex,” committee staff wrote in a report published this week.

“The Committee’s ongoing investigation focuses on the federal government’s involvement in speech censorship, and the investigation’s purpose is to inform legislative solutions for how to protect free speech,” said Nadgey Louis-Charles, a spokesperson for the House Judiciary Committee.

The rise of content moderation, and the backlash

Election misinformation isn’t a new phenomenon; there have been false and misleading claims as long as there have been elections.

But efforts by Russia in 2016 to use social media to meddle in the U.S. presidential election were a wake-up call for tech companies and the government about the power of online platforms to amplify rumors, conspiracy theories and lies.

Under public pressure, Facebook, Twitter and other social media sites created policies prohibiting false election claims and set up teams devoted to monitoring abuse, from cracking down on posts telling people the wrong day to vote to disrupting coordinated influence operations backed by foreign governments.

At roughly the same time, in January 2017, DHS designated the country’s voting systems as critical infrastructure, meaning that keeping local and state systems safe from hostile actors was officially under the federal government’s purview.

But it was becoming increasingly clear that foreign adversaries were also targeting the minds of American voters, so the federal government started wading into the thorny world of online information. Ahead of the 2018 midterms, DHS began coordinating with social media companies around election misinformation.

The tech platforms got more aggressive about policing content, with moderation reaching what some experts argue was a peak in 2020 and 2021, amid the COVID-19 pandemic and the 2020 presidential election. They began labeling false and misleading claims, including, controversially, posts by then-President Trump. After the Jan. 6 attack on the U.S. Capitol, the big platforms all suspended Trump.

The rise of those policies, along with high-profile disputes over how they have been applied, sparked a backlash from conservatives and some disaffected liberals who say platforms went too far in limiting speech.

Efforts to the back burner, and a rebranded ‘Rumor Control’

Wilcox, the election administrator in Florida, sits on the executive committee of a nationwide partnership for election officials called the Elections Infrastructure Information Sharing and Analysis Center (EI-ISAC) that was created after the 2016 election.

But he says he’s had to downplay that work when talking to voters because the EI-ISAC is funded by DHS, which has become the target of conspiracies. One conspiracy theory info packet viewed by NPR, acquired in a records request in Texas by the transparency group American Oversight, detailed how the EI-ISAC was “likely manipulating our County vote tallies.”

“I have to be very careful,” Wilcox said. “I can’t even go out locally and tell anybody that I sit on this board because DHS is the bad guy.”

Voters cast ballots in Louisville, Ky., this week. In recent years, local election officials have come to rely a variety of mechanisms to share information about rumors and conspiracy theories about elections.

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Voters cast ballots in Louisville, Ky., this week. In recent years, local election officials have come to rely a variety of mechanisms to share information about rumors and conspiracy theories about elections.

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One of the functions the EI-ISAC took on around 2020 was to essentially give thousands of election officials across the U.S. somewhere central to report false and misleading information. The group then disseminated that information to researchers at a few universities for narrative tracking and to the tech companies for review to see if it violated their policies, through an effort called the Election Integrity Partnership.

Those efforts, which took place under the Trump administration, have become the subject of claims by Jordan’s weaponization subcommittee that they’re part of a coordinated push by the government to “conduct censorship by proxy.”

Wilcox says today, the EI-ISAC is no longer advertising that service. They’re back to focusing strictly on cybersecurity.

“It’s still out there, but it’s really run back to a back burner,” Wilcox said. “[DHS] has kind of shied away from even those types of things, just because of the exposure.”

The agency’s cybersecurity and infrastructure security arm, CISA, confirmed to NPR that it had no contact on Tuesday’s Election Day with any social media companies.

Another feature of DHS’s election security work that seems to be fading into the background is a website called “Rumor Control.” As votes were being counted in 2020, the site served almost as a live-debunking tool, responding to election misinformation in real time.

Kathy Boockvar oversaw elections in 2020 in Pennsylvania as its secretary of the commonwealth, and she remembers leaning on Rumor Control when she began getting questions from Republican state legislators in her state about a conspiracy theory in Arizona involving Sharpies.

“I remember specifically that CISA had a section on the Rumor Control website to explain that there was no -gate in Sharpiegate,” Boockvar said, referring to a rumor that spread on election night 2020 in Arizona that using permanent markers on ballots would bleed through and invalidate votes. “I was actually able to share something that had the credibility of the federal government security agency — and frankly, it was the federal government under President Trump.”

Boockvar, who has since started a consulting firm focused on improving elections, noticed during last year’s midterm elections that Rumor Control was not being updated as frequently, and seemed to be more limited in its scope. The site has since been rebranded, not to focus on “jurisdiction-specific claims,” but instead explaining election processes more broadly.

CNN also reported last year that CISA turned down a multimillion-dollar proposal to protect election officials from harassment ahead of the midterms.

During a background briefing call with reporters on Tuesday, a senior CISA official downplayed concerns from local election officials that CISA was being more hands-off when it comes to misinformation.

“When it comes to foreign influence operations and disinformation, this is an area where we remain committed to ensuring that state and local election officials are provided with the techniques and tactics and procedures that we know foreign adversaries are using so that they have awareness of the threats,” the official said. “We continue to amplify election officials as trusted sources of information.”

But experts worry that local election officials often don’t have the resources or time to combat false information online, especially in a rapidly changing technological environment, in addition to their other responsibilities.

“There is only so much you can ask an election official to do and to do well. And we are nearing capacity on people,” Wilcox said. “You want me to be a cybersecurity expert? You want me to be a database expert? Now I’ve got to be an AI expert. I’m like, I’m sorry. At some point, I got to tap out and say, ‘I just don’t have it.'”

“Weaponized criticism”

The pressure campaign and the uncertainty caused by the paused legal injunction have also chilled communications between people who track and study the spread of rumors and false narratives and the platforms themselves.

Academics and researchers who participated in the Election Integrity Partnership in 2020 have been targeted by Jordan’s probe, as well as a private lawsuit brought by America First Legal, an organization run by former Trump adviser Stephen Miller. Those involved say it’s unlikely the partnership will have the same level of information sharing next year.

“The weaponized criticism of research on misinformation is having a negative impact on our ability to understand and address what many of us feel to be a pretty large societal problem,” said Kate Starbird, a co-founder of the University of Washington’s Center for an Informed Public, one of the members of the EIP. She’s been the target of harassment and threats over that work.

“They are limiting our ability just to do the research, because we’re spending too much time with our lawyers, but also limiting our ability to have conversations with the people who need our work the most, whether that’s election officials or whether that’s social media platforms,” she said.

Starbird says despite the pressure, her UW team is continuing its work and plans to do rapid response to viral rumors once again in 2024. That means they will be tracking, analyzing and communicating — even if it looks different than in previous cycles.

“How do we make sure people can use our outputs, even people that can’t maybe talk to us directly because they’re afraid about being given a lawsuit or being tied into the next conspiracy theory?” she said.

Dialogue between the people running elections, researchers and the tech companies is critical, said Eddie Perez, who oversaw Twitter’s election integrity work before leaving in September 2022 amid Elon Musk’s purchase of the company. He’s now a board member at the OSET Institute, a nonprofit focused on election infrastructure.

“There are moments where [the platforms] need to rely on substantive information from subject matter experts,” Perez said. He cites the Sharpiegate rumors in 2020 that Boockvar also mentioned and which Rumor Control knocked down.

“It’s rare for a social media company to have on board somebody that is that familiar with voting technology, for example, to be able to say, ‘Look, here’s the real story,'” Perez said. “They have an interest in trying to get the answers really quickly, because by definition, when something is viral, the damage is done very quickly.”

Social media platforms step back from the spotlight

The headquarters of X, formerly Twitter, in San Francisco. The company has largely stopped trying to police viral lies on its site and has dismantled teams that deal with election integrity.

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The headquarters of X, formerly Twitter, in San Francisco. The company has largely stopped trying to police viral lies on its site and has dismantled teams that deal with election integrity.

Justin Sullivan/Getty Images

Worsening matters is the pervasive sense that social media platforms are backing off efforts to more aggressively police and counter false and misleading election claims and conspiracy theories. Layoffs in the tech industry have hit teams working on trust and safety, leaving many working on election integrity uncertain about who to talk to.

“[The platforms] would reach out to us all the time. And that’s just not happening. It’s gone silent,” Starbird said.

Meta, the owner of Facebook and Instagram, still has channels for election officials to reach out and teams responsible for different states, according to a person familiar with the company’s work.

YouTube said it continues to invest in making the video platform a reliable source for election news and information and prohibits content that misleads people on how to vote or encourages interference in the democratic process.

Both companies declined to comment on their interactions with government officials and researchers.

The most drastic pullback has come at X, formerly Twitter, where Musk has eliminated the election integrity team entirely, unwound many of the platform’s policies, and made changes that critics say amplify the spread of harmful content. Musk has also made it difficult for researchers to study the platform and even sued a nonprofit research group whose work he objected to.

A press email address for X responded to a request for comment with an auto-reply saying “Busy now, please check back later.”

Boockvar said even in 2020, it was difficult enough getting the platforms to respond quickly to bad information as it spread.

“If they’re taking a step back, or 10 steps back. … We’re basically empowering the disinformation to spread,” she said.

Former President Donald Trump had a constitutional right to make false statements about the 2020 election, his lawyers have claimed in court.

In a written submission on Wednesday, they said that the federal election interference case against Trump is based on his alleged “lies” and that lies and false statements are protected under the First Amendment of the Constitution.

The Trump filing relies heavily on a 2012 Supreme Court ruling in United States v. Alvarez that says Xavier Alvarez, an elected official, could not be prosecuted for his false claims that he was awarded a congressional medal for bravery. The Supreme Court said that he had a right to lie, including claiming to be a U.S. Marine who had fought for his country.

Trump was indicted on four counts in Washington D.C. for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.

Newsweek sought email comment about the Alvarez case from Trump’s attorneys on Thursday.

Trump’s lawyers said in their submission to U.S. District Judge Tanya Chutkan that the Alvarez case shows that falsehoods are protected free speech.

They wrote that Trump is accused of lying and allegedly “used those lies as the instruments of his four criminal offenses.”

However, Trump is not accused of “any conduct involved in those crimes other than making, in their view, supposedly false statements about the election’s outcome,” they said.

The filing by Trump lawyers, Todd Blanche and John Lauro, is in support of their motion that the case is unconstitutional.

They accuse prosecutors of “handwaving the First Amendment” when they say that Trump went too far in his assertion that the 2020 election was rigged.

“Rhe prosecution states that President Trump ‘had a right, like every American, to speak publicly about the [2020 presidential] election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won,’ but claims President Trump violated the law because he allegedly ‘did not stop there,'” they write.

“The prosecution premises its entire case on the notion that President Trump did more than make supposedly ‘false’ claims about the election’s outcome.”

“But the prosecution does not identify any conduct involved in those crimes other than making, in their view, supposedly false statements about the election’s outcome,” it adds.

It says that false statements made during an election campaign are protected by the First Amendment.

“The reason the prosecution does not identify any non-speech or non-advocacy conduct charged in the indictment is that there is none. Every charge in the indictment rests on core acts of political speech and advocacy that lie at the heart of the First Amendment,” it said.

“All these allegations center on the claim that President Trump stated, supposedly falsely, to these state officials that there had been significant fraud in the administration of the election in their states,” it adds.

Numerous times the filing relies on the case of Xavier Alvarez, an elected member of a water district board in California, who identified himself at a 2007 public meeting as a retired U.S. Marine who had been wounded in combat many times and had received the Congressional Medal of Honor.

“I’m a retired Marine of 25 years. I retired in the year 2001,” Alvarez said at a public meeting of the board. “Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

“None of Alvarez’s claims was true. He never served in the Marine Corps or any branch of the military, was never wounded in combat, and has never received a medal of any kind, including the nation’s highest military award—the Medal of Honor. Alvarez had previously boasted, untruly, that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico,” according to a summation of the case on the U.S. federal courts’ website.

Federal prosecutors charged Alvarez with two counts of violating the Stolen Valor Act and Alvarez claimed in court that lies were protected free speech. The 2006 Stolen Valor Act made it illegal to claim to have won or to wear military medals or ribbons that were not earned.

The case went to the Supreme Court, where Justice Anthony Kennedy, writing for a 6-3 majority, said that content-based restrictions on speech are subject to strict scrutiny and are almost always invalid.

Kennedy wrote that Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm and that criminal punishment for such speech is improper.

“Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” Kennedy said, referencing George Orwell’s novel, 1984.