by Michael Dorf
Yesterday my April Fools' blog post criticizing the Trump administration for a non-existent plan to run ads urging people not to sign up for health insurance on the exchanges created pursuant to the Affordable Care Act was republished by Newsweek as though it were real. The amusing error says much less about Newsweek--given the sequence of events I'll describe below--than it does about Donald Trump.
How It Happened
In February of 2016, I was approached by an editor of Newsweek, who asked whether he could republish one of my blog posts. With the caveat that the republication include a link back to Dorf on Law, I happily said yes. After that, Newsweek began regularly republishing many blog posts by me, Prof. Buchanan, and some of the other DoL bloggers. After a few months of this arrangement, we concluded that to avoid unnecessary delay, it made sense to give blanket consent to Newsweek to republish without first seeking permission. The deal has been great for us, exposing our work to a wider audience that includes people who might not otherwise follow a blog with the word "Law" (not to mention "Dorf") in its title. Occasionally, Prof. Buchanan or I has a few qualms about the new title that Newsweek gives our essays, but we put those aside based on the reasonable assumption that the editors of a general circulation magazine have a better sense of what appeals to their audience than we do.
Even with our blanket consent arrangement, there is typically a delay between publication on DoL and republication in Newsweek. Thus it came to pass that yesterday, Tuesday April 4, Newsweek republished my blog post of the previous Saturday April 1--April Fools' Day. Unfortunately, the republication did not indicate that the essay was satire. When I discovered the snafu, I quickly contacted my editor and asked him to take down the post, which he did, but not before it was cached on Google.
How did my Newsweek editor fall for the hoax? I had assumed that the April 1 date, coupled with the picture (reproduced here) of Trump holding up an ostensible executive order that included the phrases "lickety split," "suck on that Paul Ryan," and "Democrat aka Loser Party" would suffice to alert the reader that this was satire. In my prior April Fools' posts--for example, "revealing" that Jack Balkin became an originalist on a dare; that US News and World Report was ranking law schools for faculty "hotness"; and that biglaw firms were treating their summer associates to all-expense-paid "mayhem nights"--I assumed that the satirical nature of the material would make itself known. That would be true this year too, I figured, but I had not counted on how much the world has changed since Trump's election.
Thus, Newsweek converted my April Fools' essay into fake news that, ironically, contained the self-referential and not-at-all-fake statement that Trump's "entire administration poses serious challenges to anyone attempting to write satire."
What It Means
What to make of this amusing incident? I do not think it reflects any sort of failure on Newsweek's part. The most ridiculous element of my post was the picture, but the print is small and in some feeds the pictures do not even appear. Moreover, my post fooled some other sophisticated readers as well. I suppose it's possible that this post was just substantially less ridiculous than my prior April Fools' posts, but I don't think that's right. Rather, the world has changed. How?
(1) The most obvious frame for this saga is "fake news," except that the fake news framing appears to make the story less rather than more understandable. Over the course of the last year, we have all come to understand that much of what we read--especially what is shared on social media--may be untrue. So the fake news phenomenon ought to have made readers more vigilant, not more gullible, right?
Not necessarily. The market for fake news is very highly polarized. Quick. Think of a fake news story. If you're a liberal like me, you probably thought of a fake news story from the right, like the Comet Ping Pong Pizza insanity. But right-wingers no doubt have their own stock of fake news stories perpetrated by liberals--like the existence of manmade climate change or the story that Hillary Clinton won the popular vote.
See what I did there? Because I know most of my readership is liberal, I attributed to conservatives the view that real news is fake. Ah, you will say, but that's true. Conservatives believe that stories with a liberal or progressive bent are fake, even when they're not. That probably is true, but it's also true that everyone suffers from confirmation bias. Accordingly, many people populate their mental fake news category almost exclusively with fake news that disconfirms their existing views, while inclining to credit as real those stories that confirm these views.
Moreover, even a skeptical reader could be taken in by fake news if it comes from an otherwise credible source. If much of what can be found on the Internet or elsewhere is untrustworthy, a sound strategy for sorting the fake from the real is to get your news exclusively from trusted sources. Traditional mainstream publications like the NY Times, Wall Street Journal, Washington Post, and Newsweek all have a lean, and none is perfect, but they do not deliberately report falsehoods as fact. Neither do reputable legal blogs like Dorf on Law (or the Volokh Conspiracy, Balkinization, etc.) Hence, the fact that some news is fake could actually contribute to greater trust in journalists and commentators who try in good faith to report or opine using actual facts.
(2) Nonetheless, the singularity that is Donald Trump explains the Newsweek error better than does the general phenomenon of fake news. The reason why my Newsweek editor (and other not generally credulous readers) believed my April Fools' story is that the story is believable. If it were revealed that any other president had undertaken a campaign to dissuade citizens from signing up for a program that he had sworn to "take care" to promote, the story would have immediately been met with skepticism.
That would be especially true if--as in my April Fools' post--the supposedly leaked ad script referred to "millenial hipsters doing millenial hipster things--texting, laughing, smoking drugs, etc." Thinking it would be another clue to the satirical nature of my essay, I borrowed the malapropism "smoking drugs" from the song "Sincerely, Me" in the Broadway musical Dear Evan Hansen. Given the malevolent incompetence of the Trump administration, however, it is, in retrospect, wholly credible that Trump's consigliere/reichsführer Steve Bannon would use that odd phrase when trying vainly to capture the essence of a demographic he loathes.
But stylistic nuances aside, the substance of the story was credible because Trump has accustomed us all to expect the outrageous. My made-up story of Trump deliberately undermining a federal law does not even make the top ten list of most outrageous things Trump or his administration did in just the last week. Every day of Trump's presidency brings an Augean stable full of bullshit.
In the end, then, Newsweek's error is less amusing than alarming--not because of anything anyone at Newsweek did wrong, but because it illustrates how low the bar has been set. People reading and believing my fiction reacted with a shrug, rather than by organizing marches and protests, because there's only so much time and energy one can spend marching and protesting. Responding to Trump in any remotely effective way requires triage. A "mere" violation of the Take Care Clause of the Constitution's Article II must languish in the ER waiting room while people with any sense of decency minister to the more grievous wounds Trump is imposing on the body politic.