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56 Loy. L. A. L. Rev. 1 (2023)

handle is hein.journals/lla56 and id is 1 raw text is: DEFAMATION 2.0 Cortelyou C. Kenney* There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule -a rule that can result in excommunication from the premier media law organization if it is violated is that playing both sides of the defamation game is disloyal to traditional media actors be- cause any chance of victory could inadvertently distort the law of defa- mation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far? Fueled by a new model where media profits are driven by views, both the mainstream media and social media platforms have restructured their business in a way that calls for the revisitation of the prohibition. Specifically, if one examines the disturbing rise of misinformation and disinformation, the clear trend is toward knowing falsehoods by media outlets and media pundits. There are numerous recent lawsuits against the media for engaging in misinformation, including the Sandy Hook lawsuit against Alex Jones, suits by poll workers in Georgia against the Gateway Pundit and One America News Network, and of course, Domin- ion and Smartmatic's suits against Fox and other media pundits for er- roneous statements in the aftermath of the 2020 election. This Article argues that Defamation 2.0 suits by media law- yers against media companies and media pundits that spread misinfor- mation and disinformation can significantly improve media accounta- bility by seeking to obtain the truth and to push for apologies and * Academic Fellow, Cornell Law School and Affiliated Fellow, Yale Law School Infor- mation Society Project. Ms. Kenney previously served as the Associate Director of the Cornell Law School First Amendment Clinic, a Clinical Instructor at Yale Law School's Media Freedom & Information Access Clinic, and a Thomas C. Grey Fellow at Stanford Law School. She thanks her research assistant and thought-partner, Christopher Johnson; long-time research assistant Jamie Smith; Cornell's fantastic research librarian Jacob Sayward; and the excellent editorial staff of the Loyola of Los Angeles Law Review. She also thanks Yonathan Arbel, Jack Balkin, Sandra Baron, Joseph Blocher, Michael Dorf, James Grimmelmann, Brittan Heller, Mark Jackson, John Langford, Lyrissa Lidsky, Aziz Rana, David Schulz, Nelson Tebbe, and Tom White. The author also thanks the participants of the Yale Law School Freedom of Expression Scholar's Conference, the Yale Information Society Project Fellow's Workshop; the Mesa Refuge Writer's Workshop; and the Cornell Law School Academic Professionals' Workshop. She also thanks interviewees from the media bar and journalists. She thanks the University of California, Berkeley School of Law's Hu- man Rights Center Fellowship for financial support. All errors are, of course, her own. 1

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