Actual fraud on the internet is a definite issue and concern, and sometimes a problem not only as a tool for propaganda and persuading and influencing people but also for mental health. Fraud can be committed by people or persons and by governments. For the purpose of this discussion, I will use the definition of fraud provided by California Civil Jury Instruction 3116:
“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving [name of plaintiff/decedent] of property or of a legal right or otherwise to cause [name of plaintiff/decedent] injury.
However, I will add that when drilling down into case law sometimes “fraud” can also be found in other circumstances including just for example, in some circumstances making a false promise or in making a representation of fact without reasonable grounds for believing it to be true.
One can quickly see that whether or not a statement is correct or partially correct or even incorrect or erroneous without intent or bad intent is an issue of proof in the particular circumstance and is difficult to determine on a case-by-case basis, and thus is most often made by a jury of multiple people who are hearing all of the admissible evidence.
Thus, governmental efforts to regulate and control internet speech whether directly by the government or by requiring businesses to regulate the speech are inherently problematic and should be viewed and evaluated from Constitutional and First Amendment freedom of speech perspectives before legislation or regulations are even proposed, and all legislation and regulations before being proposed should be evaluated for other and additional possible defects or unlawfulness including for example: violation of Constitutional rights other than and in addition to the First Amendment, infringement of fundamental rights, possibly being contrary to the public interest or public policy, preemption and conflict with other or higher laws, vagueness and overbreadth, improper delegation, and possibly being arbitrary and capricious.
Speech in general including political- and election-related speech involves personal viewpoints, opinions, beliefs, and evaluations which run the risks of sometimes being correct and at other times possibly being mistaken, not fully evaluated, subject to change, or even incorrect, but all the while being protected by the First Amendment. Further to the point, political- and election-related speech often involves the time tested and effective use of parody, satire, mockery, ridicule, exaggeration, ridicule, irony, caricature, lampooning, and the like, but again all the while being protected by the First Amendment.
Although, yes, actual fraud on the internet is an issue and a concern, government legislation, regulation and action to control and limit such speech should be viewed as being in violation of the First Amendment unless it is clearly and convincingly established otherwise under the law as applied to the facts of the particular situation. And I would proffer that the government should be very, very hesitant to force such legislation, laws, regulations and actions upon the public for them to have to then have to fight for freedom through the courts. I also have a general view that before government enacts a law, a risk management process should be applied to evaluate the issue at hand and the options available, and that the governmental entities and persons and representatives (and in some circumstances politicians and political parties) should apply the law to themselves for a few years to see how it will actually work in practice.
The First Amendment and the right to comment are fundamental not only to express a person’s own views or opinions, but also to simply investigate, look into, or inquire about, or simply to increase your knowledge or understanding about something. Including to keep government, representatives, law makers, law enforcers, and politicians informative and accountable. It can be easy, inadvertent, or even not unintentional to not report or misreport, or to criticize or brand, or to provide select information with a view to persuade. But the point is that your First Amendment rights are fundamental and are to be legally protected pursuant to the law from diminution, limitations, and prohibitions.
Onward.
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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.
David Tate, Esq. (and inactive CPA)
Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.
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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.
Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.
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http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com
Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com
David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.
David Tate, Esq. Headlines (and inactive CPA) – Trust, estate, probate and elder abuse disputes, litigation and contentious administrations; business litigation and internal and co-owner business disputes, litigation, and governance; real property and co-owner disputes and litigation; mediator and dispute resolution services; and social and digital media for law, people, businesses and legal risk management. 