All the Rumors are True: Verification, Actual Malice, and Celebrity Gossip

Missouri Law Review Missouri Law Review

Volume 88 Issue 3 Article 8

Summer 2023

All the Rumors are True: Veri5cation, Actual Malice, and Celebrity All the Rumors are True: Veri5cation, Actual Malice, and Celebrity

Gossip Gossip

Jasmine E. McNealy

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All the Rumors are True: Veri5cation, Actual Malice, and Celebrity Gossip

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All the Rumors are True: Verification,

Actual Malice, and Celebrity Gossip

Jasmine E. McNealy

ABSTRACT

More than half of Americans get their news from social media.

These spaces – social media platforms, video and audio recommender

systems, social news and gossip boards – have their own fact-checking

and editorial cultures that, although not the exact same as those found

in newsrooms, offer similar controls for the distribution of

information. While imperfect, just like the controls of traditional

media, these fact-checking cultures may offer a response to recent US

judicial rejection of actual malice and provide a route of inquiry for

courts examining evidence to determine if a defamation plaintiff has

met the heightened standard. This brief essay considers these cultures

of fact-checking with a focus on the cultures of celebrity gossip using

the recent ruling in Almanzar v. Kebe, the Cardi B vs Tasha K

defamation case, as a point of departure.

Associate Professor, University of Florida. Thank you to the University of Missouri

Law Review Editorial Board for their helpful comments and suggestions.

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TABLE OF CONTENTS

ABSTRACT ................................................................................................... 751

TABLE OF CONTENTS ................................................................................... 752

I. INTRODUCTION ......................................................................................... 753

II. “Y’ALL BE RUNNIN’ WITH FAKE NEWS” ............................................... 755

III. “TRUST ISSUES” ..................................................................................... 759

IV. “BE CAREFUL” ...................................................................................... 763

V. “ALL THE RUMORS ARE TRUE” .............................................................. 767

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I. INTRODUCTION

In recent years, “actual malice,” the heightened standard for plaintiffs

achieving public official or public figure status in defamation and

intentional infliction of emotional distress cases, has come under scrutiny.

At least two members of the U.S. Supreme Court have questioned the

standard’s validity publicly.

Writing in a concurrence to the Court’s

denial of certiorari in McKee v. Cosby, Justice Thomas opined that the

Court should reconsider the precedents that established the actual malice

requirement.

In McKee, a woman alleging rape by the prominent

comedian and actor Bill Cosby was deemed a limited purpose public figure

by a federal court.

The crux of the federal court’s designation was that

the woman had made the disclosure to a reporter, thereby thrusting herself

into the forefront of a public controversy.

Although agreeing with the

Supreme Court’s decision to deny certiorari, Justice Thomas called this

application of actual malice a “policy-driven decision” instead of a

decision based on constitutional law.

More recently, Justice Thomas repeated his concern about actual

malice in a dissent from the Court’s denial of certiorari in the defamation

case Berisha v. Lawson.

The case, again, hinged on whether the plaintiff,

a man who an author claimed was a prominent member of the Albanian

mafia, was able to prove actual malice.

This time, Justice Thomas

questioned whether the standard bore any “relation to the text, history, or

structure of the Constitution," and offered examples of how the

requirement of proving actual malice can cause real harm.

Writing in a

separate dissent in Berisha, Justice Gorsuch agreed with Justice Thomas

as to the spurious historical and constitutional support for actual malice.

More importantly, perhaps, is Justice Gorsuch’s explication of the media

See McKee v. Cosby, 139 S. Ct 675, 675 (2019) (Thomas, J. concurring at

675); Berisha v. Lawson, 141 S. Ct 2424, 2426 (2021) Gorsuch J., dissenting).

McKee, 139 S. Ct at 675.

McKee v. Cosby, 874 F.3d 54, 62 (1st Cir. 2017).

Id. The 1st Circuit held that “[b]y purposefully disclosing to the public her

own rape accusation against Cosby via an interview with a reporter, McKee ‘thrust’

herself to the ‘forefront’ of this controversy, seeking to ‘influence its outcome.’” Id.

McKee, 139 S. Ct. at 676 (Thomas, J., concurring).

Berisha, 141 S. Ct. at 2424 (Thomas, J., dissenting).

Id.

Id. at 2424–25 (citing Tah v. Glob. Witness Publ’g, Inc., 991 F.3d 231, 251

(D.C. Cir. 2021) (Silberman, J., dissenting)). According to Justice Thomas “lies

impose real harm,” including the shooting at a pizza shop connected to Pizzagate, the

need for additional home security after an online campaign of falsity looking for

revenge against the target, and the loss of job opportunities from being falsely accused

of bigotry. Id. at 2425.

Id. at 2426 (Gorsuch, J. dissenting).

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landscape’s evolution in the time since the Court first imposed the actual

malice standard on public officials. According to Justice Gorsuch,

advancements in media technology “facilitate[] the spread of

disinformation.”

False information is profitable.

Therefore, Gorsuch

states, while in 1964, the media landscape of newspaper distribution

networks, broadcast licensing, and large companies dominating the press

may have needed a standard like actual malice to protect the “‘uninhibited,

robust, and wide-open’ debate on public issues,” the current landscape is

very different and the standard is now unnecessary.

Technology like social media has allowed the widespread

distribution of falsehoods, while the legacy press has shrunk in size and

scope. With the diminishment of the press has come the concomitant

disappearance of safeguards like fact-checking and editorial oversight.

According to Justice Gorsuch, publishing “without investigation, fact-

checking, or editing has become the optimal legal strategy,” as actual

malice encourages false publications, because public figure plaintiffs find

it difficult to meet the standard.

In addition, the monetization of falsity

and virality is enough of a business incentive to distribute false

information. These considerations demonstrate why actual malice no

longer serves the purpose for which it was originally proposed. As a result,

Justice Gorsuch concluded that the Court needed to reassess the

application of the heightened standard.

Although both Justices make compelling arguments regarding the

current state of defamation law and the actual malice standard for public

figures, this essay focuses on Justice Gorsuch’s assertions about

technology and the distribution of false statements. Justice Gorsuch is

correct in his assessment of the media landscape: a study by the Pew

Research Center found that more than half of Americans (53%) reported

getting their news from social media. Another twenty-two percent

reported obtaining news from podcasts.

These media spaces—social

media platforms, video and audio recommender systems, social news and

gossip boards—have their own fact-checking and editorial cultures that,

although not the exact same as those found in newsrooms, offer similar

controls for the distribution of information.

While imperfect, just like

Id. at 2427.

Id.

Id. at 2430.

Id. at 2428.

Id. at 2430.

See Aniko Hannak et al., Get Back! You Don’t Know Me Like That: The Social

Mediation of Fact Checking Interventions in Twitter Conversations, 8 PROC. OF THE

INT. AAAI CONF. ON WEB AND SOC. MEDIA 187 (2014); Maria Kyriakidou et al.,

Questioning Fact-Checking in the Fight Against Disinformation: An Audience

Perspective, 0 JOURNALISM PRACT. 1 (2022).

See infra notes 85–110 and accompanying text.

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the controls of traditional media, these fact-checking cultures may offer a

response to Justice Gorsuch’s wholesale rejection of actual malice and

provide a route of inquiry for courts examining evidence to determine if a

defamation plaintiff has met the heightened standard.

This brief essay considers the cultures of fact-checking with a focus

on the cultures of celebrity gossip. Section two examines the recent

decision in Almanzar v. Kebe,

also known as Cardi B vs. Tasha K, in

which a famous rap artist sued a gossip video blogger for defamation,

among other claims. The third section details the Almanzar case and the

arguments that Tasha K made on appeal, the details of which are

reminiscent of the types of cases that Justice Gorsuch describes: false

information spread using advanced media technology. Following this, I

discuss fact-checking and cultures of gossip sites, and how these compare

with those of the traditional newsroom. Section four returns to Justice

Gorsuch’s discussion of the evolution of technology and its impact on

defamation law. Section five concludes the paper with a look to the future

of celebrity gossip, defamation, and social technology.

II. “Y’ALL BE RUNNIN’ WITH FAKE NEWS”

In January 2022, the Internet buzzed with news that internationally

known rap star Cardi B won her defamation case against celebrity gossip

vlogger Tasha K.

The jury returned a $4 million verdict in favor of

Belcalis Almanzar (“Cardi”) against Latasha Kebe (“Tasha K”) for claims

she made on her YouTube channel, UnWineWithTashaK.

Posting on

her platform, Tasha K claimed that Cardi B was a prostitute, used cocaine,

and had herpes, among other assertions.

The lawsuit against Tasha K,

filed in 2019, claimed that she participated in a campaign of harassment

against the rapper, inflicting mental and emotional distress and intending

to damage Cardi B’s reputation among her fans and the rest of the public.

Along with the monetary judgement, Tasha K was enjoined from making

No. 22-12512, 2023 WL 2579119 (11th Cir. Mar. 21, 2023).

Cardi B Wins Order Forcing YouTuber to Remove Defamatory Videos, BBC

NEWS (Apr. 5, 2022), https://www.bbc.com/news/newsbeat-60995424

[https://perma.cc/A88X-JLSB].

Id.

Raja Razek & Joe Sutton, Cardi B Wins Defamation Lawsuit Against

YouTuber Tasha K, CNN (Jan. 26, 2022, 1:41 PM),

https://www.cnn.com/2022/01/26/entertainment/cardi-b-tasha-k-defamation-

lawsuit/index.html [https://perma.cc/4HS6-Y4RZ]; Robyn Autry, Cardi B Wins $4

Million in Her Defamation Case. But Her Victory is About More Than Money., NBC

NEWS (Jan. 26, 2022, 1:44 PM), https://www.nbcnews.com/think/opinion/cardi-b-

wins-4-million-youtube-defamation-case-her-victory-ncna1288049

[https://perma.cc/TJ62-UC6X].

Id.

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statements about Cardi B’s sexual health and personal life.

In April of

the same year, a judge ordered Tasha K to remove more than 20 videos

containing the defamatory claims about Cardi B.

Later in 2022, a judge

ordered Tasha K to either pay the entire judgement or secure a bond for

the judgement amount while she appealed the decision.

Although Tasha K acknowledged in court that some of her content

was fake and that she knew some of the rumors she published were untrue,

she appealed to the Eleventh Circuit for a new trial based on several

arguments.

These assertions included statements that Tasha K genuinely

believed Cardi B had herpes when she made the claim in a video that was

published to her more than 1 million subscribers, whom she calls

“Winos.”

More interesting, perhaps, was Tasha K’s appellate arguments

concerning actual malice. Although she called herself a journalist in the

videos on her channel, the YouTube influencer disclaimed the status of a

news provider during trial.

Instead, she admitted that her channel content

was not meant to be journalism. Instead, what she published was designed

to increase viewer engagement, which allows YouTube creators to

monetize their videos and have their content recommended to a wider

audience.

Further, Tasha K argued that Cardi B had failed to prove actual

malice because it is “impermissible to use a defendant’s hatred, spite, ill

will, or desire to injure as evidence of actual malice.”

Celebrity gossip is, of course, not new; people and organizations have

spilled and “sipped tea” since celebrity and influencer culture began.

Cardi B Wins Order Forcing YouTuber to Remove Defamatory Videos, supra

note 18.

Id.

Ade Onibada, A Judge Has Denied YouTuber Tasha K’s Appeal After She

Was Found Guilty Of Defamation Against Cardi B and Will Have to Pay Out Millions

in Damages and Legal Fees, BUZZFEED NEWS (Mar. 22, 2023),

https://www.buzzfeednews.com/article/adeonibada/cardi-b-tasha-k-defamation-

lawsuit [https://perma.cc/48NJ-EJXP].

See Bill Donahue, YouTuber Tasha K Wants Cardi B’s $4M Defamation

Victory Thrown Out, BILLBOARD (June 1, 2022),

https://www.billboard.com/business/legal/tasha-k-wants-cardi-b-defamation-victory-

thrown-out-1235079564/ [https://perma.cc/8XR7-PSLJ].

Nancy Dillon, Blogger Appeals Cardi B’s $4 Million Defamation Award.

Expert Gives it “Slim Chance”, ROLLING STONE (Aug. 31, 2022),

https://www.rollingstone.com/music/music-news/cardi-b-defamation-award-blogger-

appeal-expert-interview-1234585184/ [https://perma.cc/8XSC-4TRL]; Donahue,

supra note 25; Onibada, supra note 24.

See Autry, supra note 20.

See id.

Id.

See Jasmine McNealy & Michaela Devyn Mullis, Tea and Turbulence:

Communication Privacy Management Theory and Online Celebrity Gossip Forums,

92 COMPUT. HUM. BEHAV. 110, 110 n.1 (2019) [hereinafter McNealy & Mullis].

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What is interesting, perhaps, are the arguments like Tasha K’s, related to

online creators and the rumors they spread about public figures like Cardi

B. As public figures, people who have attained a status like Cardi B’s

have a higher burden of proving that they were defamed by statements

made about them. The supposed status of these public figures has been

thought to allow them a greater ability to correct misstatements. The

popularity of public figures also makes them more likely to be of interest

to the public, which increases the potential for such false statements to be

made about them. Actual malice, as a standard for public officials and

public figures, was developed out of an understanding of journalistic

practices, how newsrooms operate, and to check the veracity of

information.

However, bloggers, vloggers, and other social media

content creators are not thought to have the same kinds of verification

systems or motivations as traditional newsrooms.

What, then, can be the

evidence that a social media creator followed verification standards to

consider whether a statement is true? How do, or should, the objectives

of content creation factor into considerations of actual malice on social

media?

Public figures are those who have attained fame or infamy sufficient

to spark the public interest.

Our understanding of public figures

generally comes from a group of cases decided by the U.S. Supreme Court

during the 1960s and ‘70s. Of paramount importance is the case New York

Times v. Sullivan,

in which the Court ruled that public officials—those

with significant influence over matters of public concern, typically

government affairs—had to prove that a defamation defendant acted with

actual malice in making claims about them.

The Sullivan case famously

dealt with a police commissioner suing the New York Times for publishing

an advertorial soliciting funds in support of the civil rights movement in

the southern United States.

The ad contained some factual errors,

See Delery H. Perret, An Unforeseen Problem: How Gertz Failed to Account

for Modern Media and What to do Now Comments, 80 LA. LAW REV. 541, 543–44

(2019); See Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel

Law in a Time of “Fake News” and “Enemies of the American People”, 2020 U. CHI.

LEGAL F. 117 (2020); Glenn Harlan Reynolds, Rethinking Libel for the Twenty-First

Century, 87 TENN. L. REV. 465, 469 (2019).

See Alfred Hermida, Nothing but the Truth: Redrafting the Journalistic

Boundary of Veriﬁcation, in BOUNDARIES OF JOURNALISM: PROFESSIONALISM,

PRACTICES AND PARTICIPATION 1, 37 (Matt Carlson & Seth C. Lewis eds., 2015);

Bahareh Rahmanzadeh Heravi & Natalie Harrower, Twitter Journalism in Ireland:

Sourcing and Trust in the age of Social Media

, 19 INFO. COMMC’N. SOC. 1194 (2016).

See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974); Curtis Publ’g

Co. v. Butts, 388 U.S. 130, 155 (1967).

376 U.S. 254 (1964).

Id. at 279–80.

Id. at 256.

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although it never mentioned the commissioner directly or indirectly.

The

Court ruled that the First Amendment protected speech about matters of

public interest, especially about issues of government or public affairs.

Because there was a significant government interest in protecting and

promoting discussion of political and social issues, falsity would

inevitably creep in.

The idea was not to promote falsity but to weigh on

the side of allowing free debate on these issues, while allowing public

officials to be able to recover damages if they could prove that the

defendant had acted with knowledge of falsity or reckless disregard for the

truth when they made their statements.

The actual malice requirement was extended to public figures—those

“involved in issues in which the public has a justified and important

interest”—in Curtis Publishing Co. v. Butts.

Butts consolidated two

cases. One case involved a well-known college athletic director and

former college football coach accused of fixing a popular college football

game,

and the other case included a “a man of some political

prominence” who was accused of taking part in a confrontation over

desegregation at the University of Mississippi.

The Court held that both

individuals had attained public figure status by earning a substantial

amount of public attention: Butts from coaching a popular collegiate

football team, and Walker from his activities on social and political

issues.

The Court ruled that Butts met the actual malice standard, but

Walker did not.

This recognition of the power and influence that public figures like

Butts—the college football coach—commanded was also central to the

Court’s further delineation of public figures in Gertz v. Robert Welch

Inc.,

in which it described three classes of public figure: all-purpose,

involuntary, and vortex.

Cardi B is an example of the quintessential all-

purpose public figure: a pop music superstar, well-known in the United

States and around the world. More importantly, she is an individual who

commands the attention of millions of people, and whose life is of interest.

In contrast, according to the Gertz Court, involuntary public figures are an

“exceedingly rare” class of individuals who garner public interest through

Id. at 256–58.

Id. at 273.

Id. at 271–72.

Id. at 280.

388 U.S. 130, 134 (1967).

Id. at 135–36.

Id. at 140.

Id. at 155.

Id. at 156.

418 U.S. 323, 336 (1974).

Id. at 344–45.

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“no purposeful action of [their] own.”

Vortex public figures, however,

are those who had sought to influence the public by thrusting “themselves

to the forefront of particular public controversies in order to influence the

resolution of the issues involved.”

Like the public officials before them, public figures bringing

defamation cases have to meet the actual malice standard with clear and

convincing evidence.

In her appeal of the ruling in Almanzar, Tasha K

claimed that Cardi B had failed to demonstrate clear and convincing

evidence of actual malice because she had based her claim on evidence of

Tasha K’s purported “hatred, spite, ill will or desire to injure” the rapper’s

reputation, which was impermissible.

Generally, proving actual malice

meant that a public figure plaintiff had to show that the defendant had

serious doubts about the information they were publishing.

A mere

showing that the defendant failed to investigate is not enough to constitute

actual malice.

Rather, a public figure plaintiff is required to prove actual

malice based on the defendant’s state of mind when publishing the

information. According to the Butts Court, a public figure could recover

for defamation “on a showing of highly unreasonable conduct constituting

an extreme departure from the standards of investigation and reporting

ordinarily adhered to by responsible publishers.”

III. “TRUST ISSUES”

The debate engaged in by the Court in Gertz, Butts, and Sullivan

shaped the public official/public figure doctrine and situated public figure

power as contra the power of the press/media. Press/media power was the

“traditional” press in these cases, working in its watchdog role to bring the

public information about people and organizations of public interest. The

Gertz Court juxtaposed the power of the public figure vis-à-vis that of the

press when it provided rationale for why a state would want to have

Id. at 345.

Id.

Id. at 342. This was in contrast to cases prior to the ruling in Sullivan, which

allowed states to set a strict liability standard, meaning that if might be held liable if

the jury found that they had published the advertisement and that the statements were

made “of and concerning” respondent” without a consideration of a standard of care.

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 267–68 (1964).

Opening Brief of Appellants at 24, Almanzar v. Kebe, No. 22-12512, 2022

WL 4016106 (11th Cir. Aug. 29, 2022) (citing Bollea v. World Championship

Wrestling, 610 S.E.2d 92, 97 (Ga. Ct. App. 2005)).

Cottrell v. Smith, 788 S.E.2d 772, 784 (Ga. 2016).

St. Amant v. Thompson, 390 U.S. 727, 733 (1968).

Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967).

See also Rosenbloom v. Metromedia, Inc, 403 U.S. 29 (1971); Rosenblatt v.

Baer, 383 U.S. 75 (1966).

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different standards of fault for private and public figures.

Public figures

have achieved their level of fame through media channels, and are

successful when “they seek the public's attention.”

Public figures and

officials are able to use media, or other channels of communication, to

counter false statements made about them.

Public figures also assume

the risk that their place of influence or notoriety will bring with it increased

scrutiny via the press.

Finally, the media was “entitled” to assume that

public figures had opened themselves up to the possibility of falsehood

creeping into discussions.

In contrast, private persons had none of the media-related influence

or access that public figures had.

Importantly, the media was not entitled

to assume that a private person had assumed the risk of injuries that come

with false statements.

That news organizations understand the

implications of false statements and falsity in reporting can be seen in

traditional newsroom routines and professional norms. The scholarly

literature regarding newsrooms and the implications of new technology on

newsroom routines is plentiful. Newsroom routines are “patterns of

outcome-oriented behavior, structured by ideological and organizational

contexts, regularly enacted or invoked by newsworkers engaged in

constructing the news, acting individually but thinking collectively.”

These routines shape how news is defined, reported, and chosen for

publication. Professional norms for journalists delineate how

newsworkers view themselves as a profession in contrast to other content

creators.

Both routines and norms “speak to functional and symbolic

needs of the profession”

and are closely connected to the practice of

journalism. Newsrooms have found these routines beneficial as they allow

Gertz, 418 U.S. at 344–46.

Id. at 342.

Id. at 344.

Id. at 345.

Id.

Edson C. Tandoc, Jr. & Andrew Duffy, Routines in Journalism, in OXFORD

RSCH. ENCYCLOPEDIAS, (Feb. 25, 2019),

https://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.00

01/acrefore-9780190228613-e-870 [https://perma.cc/C2FF-F272].

Jane B. Singer, Out of Bounds: Professional Norms as Boundary Markers, in

BOUNDARIES OF JOURNALISM: PROFESSIONALISM, PRACTICES AND PARTICIPATION 21,

22 (Matt Carlson & Seth C Lewis eds., 2015); Jane B. Singer, Quality Control:

Perceived Effects of User-Generated Content on Newsroom norms, Values and

Routines, 4 JOURNALISM PRAC. 127, 127 (2010).

David M. Ryfe, Broader and Deeper: A Study of Newsroom Culture in a Time

of Change, 10 JOURNALISM 197, 199 (2009).

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work to be done with quality and efficiency by, in essence, detailing a

process of who does what, when, and how.

How journalists gather and confirm information, and their points of

intervention such as fact-checking and copyediting, are parts of the

newsroom routine. Accuracy, considered a key characteristic of

journalism, is based on the routine of verification.

Verification, or

checking facts prior to the creation of the story, begins with the goal of

“sift[ing] out rumor, innuendo, and spin,” along with any attempts at those

attacks on accuracy.

A study of newspaper journalists’ verification

processes found various strategies and a hierarchy of care for different

kinds of factual statements.

Facts like names, statistics, and other

immutable facts were given greater care than other kinds of factual

statements; these included facts that could be considered defamatory.

the same time, the study found that there was a distinction between the

journalists’ ideals about verification in comparison with their actual

practice. While the ideal standard was that they would have stringently

checked all statements, statements could not always be verified thoroughly

due to time and resource constraints.

Journalists are not alone in the process of verification. Copyeditors

and fact-checkers are part of the newsroom routine and employed as a “last

line of defense” against errors.

Prior research has found that copyeditors

perceive themselves as guardians of journalism ethics, whose job it was to

help eliminate error and possible legal issues.

Journalism organizations

have often used fact-checkers, too, in roles complimentary to

copyeditors.

Media audiences view both fact-checking and editing

positively. Audience perceptions of fact-checking and editing influence

See, e.g., Gaye Tuchman, Making News by Doing Work: Routinizing the

Unexpected, 79 AM. J. SOCIOL. 110, 111 (1973); Harvey Molotch & Marilyn Lester,

News as Purposive Behavior: On the Strategic Use of Routine Events, Accidents, and

Scandals, 39 AM. SOCIO. REV. 101, 105 (1974); Barbara Schneider, Reporting

Homelessness, 7 JOURNALISM PRAC. 47 (2013); Wilson Lowrey, News Routines, in

THE INT’L ENCYCLOPEDIA OF COMMC’N (2014).

See Ivor Shapiro et al., Verification as a Strategic Ritual, 7 JOURNALISM PRAC.

657, 658 (2013).

Bill Kovach & Tom Rosenstiel, The Elements of Journalism: What

Newspeople Should Know and the Public Should Expect 67 (4th ed. 2021).

Shapiro, supra note 67, at 668.

Id. at 663–65.

Id. at 665.

Susan Keith, Newspaper Copy Editors’ Perceptions of Their Ideal and Real

Ethics Roles, 82 JOURNALISM MASS COMMC’N. Q. 930, 930 (2005).

Id.

See Fred Vultee, Audience Perceptions of Editing Quality, 3 DIGIT.

JOURNALISM 832, 833 (2015); Lucas Graves, Brendan Nyhan, & Jason Reifler,

Understanding Innovations in Journalistic Practice: A Field Experiment Examining

Motivations for Fact-Checking, 66 J. COMMC’N. 102, 102 (2016).

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their perceptions of news quality and whether they might pay for the

news.

Demands for constant and rapid reporting, as well as economic

pressures, challenge fact-checking and editing routines.

Competition for

audiences between traditional outlets and social media and other emerging

technology has led to demands for almost constant publication.

These

demands have placed pressure on the traditional fact-checking and editing

routines. In addition, news organizations have turned to innovations in

technology in response to economic and resource pressures on

verification.

The introduction of technology into news routines has made for both

innovation and reconsideration of practice norms. Twitter, now known as

X, has been normalized as a part of news production and dissemination by

news outlets, because it fits with breaking news routines.

A study of

journalists’ use of Twitter found, for example, that journalists were

applying the norms of transparency about how their job work and

accountability for their reporting in the content that they posted.

Apart

from using digital technology like social media to shape audience views

of journalists’ credibility, research has found that journalists working

strictly in the online space used external assistance to conduct traditional

verification tasks.

Facing a lack of in-depth editing by internal services,

some online journalists “had even reached out to social networks rather

than editors for help in editing pieces.”

A study by Agarwal and Barthel

in 2015 found, for instance, that traditional print stories received

significantly more editing services than those written solely for online.

The laxity in verification for online news in comparison to traditional print

did not mean, however, that journalists using new technology were

Vultee, supra note 74, at 833.

Lucas Graves & Michelle A. Amazeen, Fact-Checking as Idea and Practice

in Journalism, in OXFORD RSCH. ENCYCLOPEDIA OF COMMC’N (2019),

https://doi.org/10.1093/acrefore/9780190228613.013.808 [https://perma.cc/LZH5-

H3RM] (last visited July 11, 2023).

Susan Currie Sivek & Sharon Bloyd-Peshkin, Where Do Facts Matter?: The

Digital Paradox in Magazines’ Fact-Checking Practices, 12 JOURNALISM PRAC. 400,

401 (2018).

See Noah Arceneaux & Amy Schmitz Weiss, Seems Stupid Until You Try it:

Press Coverage of Twitter, 2006-9, 12 NEW MEDIA & SOC. 1262, 1268 (2010);

Dominic L. Lasorsa, Seth C. Lewis, & Avery E. Holton, Normalizing Twitter:

Journalism Practice in an Emerging Communication Space, 13 JOURNALISM STUD.

19, 20 (2011).

Lasorsa, Lewis, & Holton, supra note 78.

Sheetal D. Agarwal & Michael L. Barthel, The Friendly Barbarians:

Professional Norms and work Routines of Online Journalists in the United States, 16

JOURNALISM 376, 386–87 (2015).

Id.

Id. (interviewing online journalists to investigate how their professional

identities influence their participation in newsroom routines).

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without constraints or routines created to avoid legal and policy infractions

and harm to their credibility. A study of computational journalists found

that because of their apprehension surrounding the possibility of libel from

automated outputs, journalists had been posting the code and data that they

used to Github or other open-source repositories that allow its accuracy to

be checked.

Such postings also help the computational journalist

because the editor in charge may not be knowledgeable enough to check

the journalist’s code. Posting code and data to these sites might then be

considered “evidence that journalists are at least attempting to act with

reasonable care – an important consideration when it comes to potential

legal liability.”

Therefore, despite changes in media channels and pressures

connected to demands for information and economics, verification

remains an important part of the routine for those working for traditional

news organizations. Forms of verification have changed to fit the demands

of content publication and the channels of publication. The fact that

verification changes to match the medium offers insights into how

different kinds and cultures of verification arise outside of the traditional

press.

IV. “BE CAREFUL”

In contrast to what is traditionally considered journalism, gossip sites

are thought to be devoid of transparency, credibility, and verification. Yet,

research on gossip and online gossip sites has demonstrated that users

engage in sophisticated forms of disclosure, verification, and disclosure

protection.

Gossip, in essence, is a social process that changes cultural

norms and functions to protect personal interests.

Celebrity gossip is

valuable,

and social media accounts and gossip sites allow for public

participation in discussions related to race and gender, among other things

connected to celebrities.

This form of gossip can also change the

public’s understanding and expectations of those who have achieved

Sarah K. Wiley, The Grey Area: How Regulations Impact Autonomy in

Computational Journalism, 0 DIGIT. JOURNALISM 1, 10–11 (2021).

Id. at 11.

See, e.g., McNealy &Mullis, supra note 28.

GRAEME TURNER, UNDERSTANDING CELEBRITY (2nd ed. 2014); Peter J.

Wilson, Filcher of Good Names: An Enquiry Into Anthropology and Gossip, 9 MAN

93, 93 (1974); Robert Paine, What is Gossip About? An Alternative Hypothesis, 2 MAN

278 (1967).

Toija Cinque & Sean Redmond, Talking Miley: The Value of Celebrity

Gossip, in ENTERTAINMENT VALUES 71 (Stephen Harrington ed., 2017),

http://link.springer.com/10.1057/978-1-137-47290-8_6 [https://perma.cc/3YQE-

Q7NN] (last visited July 11, 2023).

TURNER, supra note 86.

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public recognition.

Gossip appears on social media sites as well as

online forums and sites created specifically for gossip exchange.

As the Almanzar case demonstrates, celebrity gossip and gossip sites

have been the subject of legal actions and threats of lawsuits for claims

including defamation and invasion of privacy. In 2012, for instance,

celebrity gossip site Lipstick Alley was threatened with a lawsuit for

defamation and right of publicity by the actor Chris Evans, after a forum

user reposted a story from another gossip site claiming the actor had an

STD.

The site was similarly threatened with an action for defamation by

Jared Leto in 2015.

Although Lipstick Alley is a gossip forum allowing

users to post rumors, and would therefore be immune from liability under

§230 of the Communications Decency Act, other sites and social accounts

would not be so privileged if the site itself develops the defamatory

content.

More recently, Crazy Days & Nights, a pseudonymously

written celebrity gossip blog that posts blind items—statements of

purported facts for which readers and commenters seek to guess about

whom it applies –was sued by Real Housewives of Beverly Hills star Diana

Jenkins.

The blog claimed that she was connected to sex trafficking.

Forums like Lipstick Alley and blogs that allow commenting and

other interactions by users open themselves to a kind of fact-checking or

verification that is not unlike the modern attempts at verification used by

traditional news journalists. Challenges to the veracity of information

posted on social media is seen as a part of the culture of the site or app. A

study of social media sites like Twitter, for instance, has found that users

themselves employ fact-checking interventions, posting counter

Margarita Esther Sánchez Cuervo, ‘Not Sure What Is Going on Today’: Verbal

Evidential Strategies in Celebrity Gossip Blogs, 13 NORDIC J. ENG. STUD. 33 (2014).

Mike Masnick, Chris Evans’ Lawyer Threatens Forum; Apparently

Unfamiliar With Free Speech, Safe Harbors & Streisand Effect, TECHDIRT (June 15,

2012, 7:06 AM), https://www.techdirt.com/2012/06/15/chris-evans-lawyer-threatens-

forum-apparently-unfamiliar-with-free-speech-safe-harbors-streisand-effect/

[https://perma.cc/P7T8-G75K].

Mike Masnick, Jared Leto’s Lawyer Sends Ridiculously Bogus Cease &

Desist, Calling Lots Of Attention To Statements About Him, TECHDIRT (Aug. 6, 2015,

9:55 AM), https://www.techdirt.com/2015/08/06/jared-letos-lawyer-sends-

ridiculously-bogus-cease-desist-calling-lots-attention-to-statements-about-him/

[https://perma.cc/FG3B-77UW].

See, e.g., Jones v. Dirty World Ent. Rec. LLC, 755 F.3d 398, 408–09

(explaining that § 230 does not offer immunity for sites that are responsible for the

creation or development of the information at issue).

Gene Maddaus, ‘RHOBH’ Star Diana Jenkins Sues ‘Crazy Days & Nights’

Blogger Over Sex Trafficking Claim, VARIETY (Nov. 2, 2022, 2:24 PM),

https://variety.com/2022/tv/news/diana-jenkins-lawsuit-enty-lawyer-crazy-days-

nights-1235421033/ [https://perma.cc/4AWF-U894].

Id.

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information to refute false disclosures.

Although strangers usually fact-

checked the social media users, the study found that these corrections were

more likely to draw engagement when they came from a someone with

which the user had a relationship.

Importantly, when fact-checked, users

were not chilled from tweeting further.

The demands for “receipts,” or proof that the rumors that are being

posted have an inkling of truth, are a significant part of gossip culture.

The idea of receipts is traced to a 2002 interview with the late Whitney

Houston and ABC News, in which journalist Diane Sawyer asked the

singer about her alleged drug use.

“I wanna see the receipts from the

drug dealer that I bought $730,000 worth of drugs from,” Ms. Houston

says. “I wanna see the receipts.”

100

Asking for receipts has since become

a demand levied by audiences on anyone making statements, demanding

that they provide evidence of the veracity of their claims, akin to asking a

journalist for their sources. For gossip and other pop culture phenomena,

receipts can be digital or analog, taking “many forms: texts, DMs,

Instagrams, video recordings, audio recordings, Facebook posts, tweets,

photos, videos,”

101

and have been invoked in several celebrity or

influencer-based conflicts.

102

Further, so-called drama channels—online channels created for the

purpose of exposing celebrity or influencer scamming or “fake[ness]”—

have made it their mission to collect the receipts of celebrity and influencer

inauthenticity and publish them to a wide audience.

103

In this way, drama

channels, themselves celebrity gossip sites, “often [take] on the mantle of

truth-tellers on the platform, in the tradition of watchdog journalists,” by

investigating claims and rumors about individuals of public interest.

104

This means even delving into the minute details of celebrity and influencer

See Hannak, supra note 15.

Id.

Id. at 191–92.

See, e.g., McNealy & Mullis, supra note 30, at 116.

Kate Dries, She Who Produces the Receipts Controls the Narrative, N.Y.

TIMES (June 25, 2018), https://www.nytimes.com/2018/06/25/style/show-me-the-

receipts.html [https://perma.cc/V9NF-6J34]; Katy Waldman, How “Show Me the

Receipts” Became a Catchphrase for Holding the Powerful Accountable, SLATE (July

21, 2016, 9:30 AM), https://slate.com/human-interest/2016/07/how-show-me-the-

receipts-became-a-catchphrase-for-holding-the-powerful-accountable.html

[https://perma.cc/XZL2-JCSB].

100

Dries, supra note 99.

101

Id.

102

Waldman, supra note 99.

103

See Rebecca Lewis & Angèle Christin, Platform Drama: “Cancel Culture,”

Celebrity, and the Struggle for Accountability on YouTube, 24 NEW MEDIA & SOC.

1632, 1642 (2022) [hereinafter Lewis, Cancel Culture].

104

Id.

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interactions both past and present, as well as soliciting information through

the posting of gossip and rumors to get others to comment with relevant

information.

105

This kind of engagement with viewers helps drama

channels and other gossip sites open opportunities for monetization,

increasing their capital gain to grow and sustain their platforms.

106

In both

her trial testimony and appellate brief, Tasha K discussed her economic

interest as a purveyor of celebrity gossip like the drama channels

mentioned.

107

Undoubtedly, after building a community of more than 1

million followers, Tasha K falls into a category of a YouTuber able to

participate in the platform’s Partner Program, which allows content

creators to earn money by placing advertising on their videos.

108

According to some reports, YouTube channels with around 1 million

subscribers have made between $14,600 and $55,000 per month.

109

Such economic incentives could motivate a site or channel to engage

in gossip. At the same time, receipts and the discussion of receipts also

increase subscriber engagement and views. Gossipers like Tasha K, then,

would have just as much, if not more, incentive to engage in a process of

public verification of the gossip that they are distributing. In her appellate

brief, Tasha K argues that she engaged in verification of her statements,

basing the veracity of her statements on Cardi B’s prior interviews and

statements in the press, as well as other information published publicly on

social media and other spaces.

110

Therefore, despite or because of her

economic interest, Tasha K engaged in a process of verification similar to

others on social media sites, and very similar to those used by journalists

employed by traditional news media organizations.

105

See Sophie Bishop, Managing Visibility on YouTube Through Algorithmic

Gossip, 21 NEW MEDIA & SOC. 2589 (2019); Lewis, Cancel Culture, supra note 103.

106

See Angèle Christin & Rebecca Lewis, The Drama of Metrics: Status,

Spectacle, and Resistance Among YouTube Drama Creators, 7 SOC. MEDIA & SOC. 1

(2021).

107

Opening Brief of Appellants, Almanzar v. Kebe, No. 22-12512, 2022 WL

4016106 (11th Cir. Aug. 29, 2022).

108

YouTube Partner Program Overview & Eligibility, YOUTUBE HELP

https://support.google.com/youtube/answer/72851 [https://perma.cc/KRJ3-H22C]

(last visited July 5, 2023).

109

Amanda Perelli & Nathan McAloone, How Much YouTubers Make for 1

Million Subscribers, BUS. INSIDER (July 3, 2023),

https://www.businessinsider.com/how-much-youtube-pays-for-one-million-

subscribers [https://perma.cc/RYA7-L7BV].

110

Opening Brief of Appellants, Almanzar v. Kebe, No. 22-12512, 2022 WL

4016106 (11th Cir. Aug. 29, 2022).

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V. “ALL THE RUMORS ARE TRUE”

The media landscape that Justice Gorsuch described in Berisha is

accurate: “today virtually anyone in this country can publish virtually

anything for immediate consumption virtually anywhere in the world.”

111

Although advances in technology have made it easier for anyone to

become a publisher, it has also amplified the spread of disinformation,

which Justice Gorsuch claims has now become a strategy in defamation

cases, because the public figure plaintiff’s burden is almost

insurmountable.

112

Further, Justice Gorsuch claims that fact-checking is

no longer paramount in a world of rapid information dissemination.

113

Yet, the research on gossip sites—whether boards, drama channels or

vlogs—and the demands for receipts from audiences who engage with

celebrity gossip and others on social media demonstrate that Justice

Gorsuch’s position is not accurate. Certainly, the interest in gossip is in

its possibly salacious nature. However, salaciousness does not equate to a

lack of verification.

Of course, there is gossip published that aims to harm a celebrity’s

reputation, but the new media environment has not changed the mutual

relationship between celebrity and media. Celebrities like Cardi B can still

command media attention to correct falsehoods, and they can still

successfully influence public opinion on issues of interest. Celebrities, for

the most part, have still assumed the risks of fame in the context of

defamation—with great celebrity comes the great risk of falsity. This

premise does not mean that celebrities and other public figures will never

be able to recover for harms, only that they have a higher burden of proof.

The rationale for this burden of proof remains the same as well: there is an

interest in protecting open and robust debate about matters of public

interest. Celebrities and those who have attained a certain level of fame

attract this public interest.

Ultimately, the Eleventh Circuit’s denial of Tasha K’s appeal of the

ruling in favor of Cardi B was based on procedure and not the substance

of her argument.

114

It is unfortunate that the appellate court will not be

able to decide the case that might have offered further, and more modern,

insights into the intersection of celebrity gossip, new technology, and

actual malice. A similar case in the future would allow a court to consider

cultures of verification as evidence in public figure defamation cases.

111

Berisha v. Lawson, 141 S. Ct. 2424, 2427 (Gorsuch, J., dissenting).

112

Id. at 2428–29.

113

Id. at 2428.

114

Almanzar v. Kebe, No. 22-12512, 2023 WL 2579119 (11th Cir. Mar. 21,

2023) (ruling that Tasha K’s attorney had not preserved her arguments for appeal).

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