Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy to Law Students

Touro Law Review Touro Law Review

Volume 35 Number 2 Article 3

2019

Fake News, Alternative Facts, and Disinformation: The Importance Fake News, Alternative Facts, and Disinformation: The Importance

of Teaching Media Literacy to Law Students of Teaching Media Literacy to Law Students

Marin Dell

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619

FAKE NEWS, ALTERNATIVE FACTS, AND

DISINFORMATION: THE IMPORTANCE OF TEACHING

MEDIA LITERACY TO LAW STUDENTS

Marin Dell*

Like legal education, media literacy education teaches critical

thinking skills. Students with media literacy education are able to

evaluate media messages and decide for themselves the truth of media.

Media literacy education is critical at all levels, but it should be a

required inclusion for every legal education program.

People choose the facts they want now.

– The Newsroom (HBO)

Facts are the center. Facts. We don’t pretend that certain facts are in

dispute to give the appearance of fairness to people who don’t

believe them.

– The Newsroom (HBO)

I. INTRODUCTION

Media literacy education can help all people fight against fake

news, alternative facts, and the pervasive spread of disinformation in

our society. Media literacy should be a required and integral part of

all levels of our educational systems. Like legal education, media

literacy education teaches critical thinking skills. Students with media

* Marin Dell, JD, MLIS, MS/MIS is an Associate Librarian at Law and Adjunct Professor of

Law at Texas Tech School of Law. 806-834-2293. [email protected]. 3311 18th Street,

Lubbock, TX 79049. The author would like to thank the Texas Tech University School of

Law for their financial assistance through the Faculty Summer Grant program and for the

writing support she has received from the Texas Tech Law School and Law Library

administration. She is exceptionally grateful for the excellent research, writing, and

proofreading skills of her research assistant, Addison Kirk, whose skills were invaluable to

the completion of this article.

The Newsroom: The 112

Congress (HBO Television Broadcast Jul. 8, 2012).

The Newsroom: We Just Decided To (HBO Television Broadcast Jun. 24, 2012).

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literacy education will be able to evaluate media messages and decide

for themselves the truth, falsity, and/or bias of media communications

in their professional and personal life. Today, information about the

world around us comes to us not only by words on a piece of paper but

also, more and more, through the powerful images and sounds of our

multimedia culture. “Media no longer just shape our culture—they

ARE our culture.”

Part II of this article sets out the reasons why law students

should graduate with media literacy skills.

Part III discusses how

various groups define media literacy and why a media literacy

education program is important to citizens and society at large.

Part

IV surveys the current state of media literacy education in non-legal

educational settings.

It also reviews how media literacy has skimmed

the surface of legal education, and looks at the American Bar

Association (“ABA”) Chapter 3 requirements for legal education.

Part V then evaluates the reasons why media literacy and fake news

are inexplicably intertwined with legal education requirements under

ABA Standards 301 and 302.

Media literacy education is necessary

under ABA Chapter 3’s program of education requirements.

Part V

argues that those schools that claim to have “practice ready” law

graduates are not doing a complete job educating their students without

also teaching them media literacy and complete critical thinking

skills.

Part VI concludes that law students must have exposure to

media literacy education to be able to evaluate fake news and

alternative facts, as well as parse out disinformation, in order to be

effective attorneys at law.

Media literacy education is critical at all

levels, but it is important under the ABA guidelines and should be a

required inclusion for legal education programs.

Elizabeth Thoman & Tessa Jolls, Media Literacy: A National Priority for a Changing

World, CTR. FOR MEDIA LITERACY, http://www.medialit.org/reading-room/media-literacy-

national-priority-changing-world (last visited Apr. 15, 2019) (alteration in original).

See infra Part II

See infra Part III.

See infra Part IV.

See infra Part V.

See infra Part VI.

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II. WHY MEDIA LITERACY FOR LAW STUDENTS?

The terms fake news and alternative facts have become

associated with politics, but the necessity to view this information

presented in the media with a clear head and unbiased view has nothing

to do with politics, religion, or any other single perspective.

The

answer to fighting fake news, alternative facts, and disinformation is

media literacy.

“Media literacy is critical to the health and well-being

of America’s children, as well as their future participation in the civic

and economic life of our democracy.”

Not only is media literacy a

domestic issue, the United Nations Educational, Scientific and Cultural

Organization (“UNESCO”) stated, “[e]mpowerment of people through

information and media literacy is an important prerequisite for

fostering equitable access to information and knowledge, and building

inclusive knowledge societies.”

Lawyers are the stewards of our

civic and economic and the administration of justice in our democratic

society.

As officers of the court, lawyers must be educated in legal

critical thinking and in media literacy.

This includes thinking

critically about the ways the media communicates to clients and how

that shapes our society.

“Being literate in a media age requires critical thinking skills

that empower us as we make decisions, whether in the classroom, the

living room, the workplace, the boardroom, or the voting booth.”

Media literacy is inextricably intertwined with the idea of justice.

lawyer’s ability to discern and evaluate when media and media

messages that have been purposefully falsified or had the truth

obscured in order to confuse and manipulate the viewer has never been

What is Media Literacy?, MEDIA LITERACY NOW, https://medialiteracynow.org/what-is-

media-literacy/ (last visited Apr. 15, 2019).

Id.

Media Literacy Defined, NAT’L ASS’N FOR MEDIA LITERACY EDUC., https://namle.net/pu

blications/media-literacy-definitions/ (last visited Apr. 15, 2019).

Id.

Introduction to Media Literacy, MEDIA LITERACY PROJECT, http://www.youthconnection

scoalition.org/content/wp-content/uploads/2014/07/Intro-to-Media-Literacy.pdf (last visited

Apr. 15, 2019).

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more important to all people in our technologically advancing

society.

Critical thinking skills, acquired in media literacy education

and required under ABA Standards 301 and 302, are critically

important to lawyers whose life’s work consists of dealing in truth,

lies, facts, and the search for justice.

It is the obligation of legal

education to make sure that new “practice ready” graduates leave law

school not only ready to analogize law to facts, interview clients, and

the myriad other things that legal education teaches, but also that they

have critical thinking skills enhanced by media literacy education.

A lawyer’s ability to think critically is incomplete without the

ability to see through media to evaluate the message, the facts, the lies,

and the bias and skewed perceptions that the media use in everyday

communication with ordinary citizens.

It is the obligation of lawyers

to see through the disinformation campaigns and zealously advocate

for their clients without being manipulated by or unaware of the

“media monopoly” and its potentially negative and positive effect on

the media consumer.

“Media literacy helps us understand how media

create cultures, and how the ‘media monopoly’—the handful of giant

corporations that control most of our media—affects our politics and

our society.”

It is not good enough for law schools to hope their graduates

learned the medial literacy skills they need in their elementary,

secondary or other post-secondary programs.

It is especially

important to educate law students before they graduate because of the

uneven and haphazard ways the media literacy education is adopted

and implemented in elementary, secondary, and post-secondary

education programs.

Id.

What is Media Literacy?, supra note 13; ABA STANDARDS & RULES OF PROCEDURE FOR

APPROVAL OF LAW SCH. ch. 3, § 302 (2018-2019), https://www.americanbar.org/content/dam

/aba/publications/misc/legal_education/Standards/2018-2019ABAStandardsforApprovalofLa

wSchools/2018-2019-aba-standards-chapter3.pdf [hereinafter ABA STANDARDS].

Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive

Skills of Law Students Through More Effective Formative Assessment Techniques, 40 CAP. U.

L. REV. 149, 151 (2012).

See Introduction to Media Literacy, supra note 21.

See id.

Id.

W. James Potter, The State of Media Literacy, 54 J. BROADCASTING & ELECTRONIC

MEDIA 675, 682-83 (2010).

Id.

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2019 MEDIA LITERACY AND FAKE NEWS 623

Law school is one of the last opportunities for media literacy

education for many students and the only place for law schools to

ensure that their new graduates get the practical media literacy skills

they need.

This responsibility must not be abrogated and should be

mandated in legal education under ABA Standards 301 and 302, which

require that law students are taught critical thinking skills, in addition

to the other myriad professional skills necessary to become a

competent attorney.

In our future—which could be as soon as tomorrow but perhaps

up to a decade away—fake news, alternative facts, and disinformation

programs, more technologically advanced than today, will inundate

society, clients, and citizens around the world.

“Technology is

making it increasingly easy to spread misinformation by manipulating

video and audio.”

Discerning what is real, true, and/or authentic and

what is not will become even more of a challenge without media

literacy education and, in some cases, the access to sophisticated

technology to evaluate fake or doctored media.

Over the next decade, it may take experts to evaluate media for

authenticity and truth because manipulation of media, audio, video,

and photographs will become so sophisticated.

It is the job of every

citizen to be media savvy, but lawyers need to hold themselves to an

even higher standard than the general public.

Lawyers deal in facts

and the application of those facts to the law.

Lawyers have an

obligation to make sense of what is true and what is false for their

clients and for society.

As officers of the court, lawyers need to

protect the rule of law and the Constitution using unbiased and

objective critical thinking.

ABA STANDARDS, supra note 23.

Id.

Everette Dennis, Out of Sight and Out of Mind: The Media Literacy Needs of Grown-

Ups, 48 AM. BEHAVIORAL SCI. 202, 204 (2004).

Id.

Gillian Edevane, Jordan Peele Voices Obama PSA Against Fake Videos: ‘Ben Carson is

in the Sunken Place’, NEWSWEEK (Apr. 17, 2018), http://www.newsweek.com/jordan-peele-

imitates-obama-psa-fake-video-889924; A.J. Katz, Jordan Peele Channels President Obama

in a Faux PSA About Fake News, ADWEEK (Apr. 17, 2018), https://www.adweek.com/tv-

video/jordan-peele-channels-president-obama-in-a-faux-psa-about-fake-news/.

See Edevane, supra note 35.

Id.

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III. THE CURRENT STATE OF MEDIA LITERACY, FAKE NEWS,

AND ALTERNATIVE FACTS

Media literacy as a concept has been researched and adopted

by multiple academic disciplines.

This means that there are many

different definitions of media literacy and the definitions diverge from

each other depending on the direction and perspective of the

scholar/author and his or her academic discipline.

It also means that

there are numerous definitions of media literacy, and while these

definitions are not the same, they are mostly in agreement with each

other.

In Potter’s The State of Media Literacy, he lists a table

containing twenty-three different sample definitions of media literacy

from many different disciplines.

A. Defining Media Literacy

In reviewing the definitions of media literacy, it is easy to find

commonalities in viewpoints.

The National Association for Media

Literacy Education (“NAMLE”) states that “media literacy is the

ability to access, analyze, evaluate, create, and act using all forms of

communication.”

This definition of media literacy is very enticing

because it covers the essential interaction necessary for those exposed

to media messages to make their own informed decision as to what

they think and believe about the media; namely its truth or falseness.

NAMLE also says that “[m]edia literacy empowers people to

be critical thinkers and makers, effective communicators and active

citizens.”

This is an important distinction to lawyers because critical

thinking is one of the hallmarks of the legal profession and the

emphasis on critical thinking and communication is a necessary quality

for law students and effective lawyers.

Potter, supra note 28.

Renee Hobbs, The State of Media Literacy: A Response to Potter, 55 J. BROADCASTING

& ELECTRONIC MEDIA 419, 420 (2011).

See Potter, supra note 28.

Id.

See, e.g., Media Literacy Defined, supra note 19.

See id.

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The group Media Literacy Now defines media literacy as “an

umbrella term encompassing a variety of approaches that develop

critical thinking skills around all types of media, build an

understanding of how media messages shape our culture and society,

give people tools to advocate for a changed media system.”

The

Media Literacy Project defines media literacy as “the ability to access,

analyze, evaluate, and create media.”

There are numerous other

media literacy definitions that are constructed along the same

definitional lines.

Some of the major themes of these divergent media literacy

definitions encompass concepts such as critical thinking skills,

evaluation of media messages, and an understanding of message bias.

One of the most useful and expansive media literacy definitions is from

the Center for Media Literacy (“Center”), which defines media literacy

as “[a] framework for accessing, analyzing, evaluating and creating

media. [It is t]he develop[ment] of critical thinking and media

production skills needed to live fully in the 21st century media

culture.”

The definition is expanded even further as the Center goes

on to say that media literacy is “the ability to communicate

competently in all media forms[, print and electronic,] as well as to

access, understand, analyze, evaluate and participate with powerful

images, words and sounds that make up our contemporary mass media

culture.”

The Center’s media literacy definition is the recommended

definition for legal education and curriculum development.

B. What are Fake News and Alternative Facts?

Fake news and alternative facts are similar, but not

synonymous.

The differences in the definitions are important and

show that fake news and alternative facts are used in slightly different

ways by different people.

Regardless of the type of disinformation

See What is Media Literacy?, supra note 23.

See id.

See About CML, CTR. FOR MEDIA LITERACY, http://www.medialit.org/about-cml (last

visited Apr. 15, 2019).

See id.

See generally Part III.B.

See generally Parts III.B.1, B.2.

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used, fake news and alternative facts are damaging to society and

media literacy skills are the only way to combat their spread.

1. Defining Fake News

For many years, “fake news” was defined as a type of news

story that was not professional or real.

These fake news stories were

characterized by their untruthfulness, not by their publisher or the

reader’s perspective on the story.

Since 2016, however, the term fake

news has become synonymous with reader-perspective population

who considers any negative treatment of the subject of the news article

to be fake news.

News is the business of the dissemination of facts about current

events, and the means by which the public engages in the debates of

the day.

News may be created and disseminated by literally anyone,

but the most reputable news comes from journalists and the

mainstream media (“MSM”).

Traditionally, fake news was thought

of as “news-like stories that are not designed to inform or educate, but

rather engineered to appeal to our preconceived narratives about how

the world works while also trading on the trademarked names of news

sources in order to both cloak themselves in legitimacy and to be easily

shareable on social media.”

While fake news is “intentionally

misleading articles, often published for profit or other gain,” too often

it is mistaken for what it is not: “any news you don’t agree with.”

Since the 2016 presidential election, the term fake news has

constantly been in the press, not necessarily because the MSM is

reporting untruthful news stories, but because many political figures

are calling any negative press stories they don’t like fake news.

Our

society is in a war between those who call stories they don’t like fake

See generally Parts III.B.1, B.2.

Joshua Humphrey, The Plague of Fake News and the Intersection with Trademark Law,

8 CYBARIS AN. INTELL. PROP. L. REV. 126, 133 (2017).

Id.

Id. at 131.

Kathy Dempsey, What’s Behind Fake News and What You Can Do About It, INFO. TODAY

(May 2017), http://www.infotoday.com/it/may17/Dempsey—Whats-Behind-Fake-News-and

-What-You-Can-Do-About-It.shtml.

Id.

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news and the MSM, where news is no longer an objective thing but a

weapon used with impunity to delegitimize the opposing side, and

truth is getting lost in the fray.

Currently, any negative story can be

dismissed as fake news and anyone with a camera and an internet

connection can call themselves a news outlet.

More troubling, fake

news is a money-making industry and shows no signs of slowing

down.

Confirmation bias, which complicates an individual’s ability to

evaluate what is a truthful news story and what is not, is “a tendency

to search for or interpret information in a way that confirms one’s

preconceptions.”

Confirmation bias means that people reading the

news tend to behave in a way when reading news that results in their

“ignoring, forgetting, or explaining away information that contradicts

[their] existing beliefs.”

Also, complicating matters is “source

amnesia” when “people recall facts but cannot remember where they

initially came from.”

All these very human traits will tend to cause

confusion about new stories and will exacerbate an already difficult

situation filled with both honest mistakes and deliberate manipulation,

depending on who the news media and publishers/writers are.

Another unfortunate wrinkle are the purveyors of actual fake

news articles who tend to lie with impunity and go on the attack when

called out on it.

In the article Fighting Fake, Melissa Zimdars, a

communications professor at Merrimack College, chronicled her

decision to create a Google doc with lists of “fake news sources . . . to

those that are sometimes reliable but use sensational and misleading

headlines . . . also includ[ing] several tips for analyzing sources of

information.”

Her project, which started out for the use of her

students, went viral online and was reported in news publications

around the world.

But, just as she garnered praise for her information

on separating fake news from reliable publications, she started

Id.

See Humphrey, supra note 59.

Id. at 137.

See id.

See id. at 138.

Id.

Melissa Zimdars, Fighting Fake, CHRONICLE HIGHER EDUC. (Jan. 15, 2017),

https://www.chronicle.com/article/Fighting-Fake/238870.

Id.

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receiving death and rape threats and needed campus security at her

office.

Harassment online and fake news seem to go hand in hand in

today’s society.

2. Why does Fake News exist?

Fake news has become ubiquitous in United States news

cycles, and it exists because people make money through the

advertising on fake news articles.

This isn’t new, however.

According to Humphrey, sensational and fake news stories have been

used to sell newspapers as far back as Jack the Ripper in the 19th

century and a “hoax involving life on the moon enraptured readers of

The New York Sun in 1835.”

In the era of Thomas Jefferson, political

parties had their own newspapers and it was up to the readers to decide

for themselves what the truth was and what was false.

Our current

news reports and the obligation of the reader to understand bias and

falsity and evaluate accordingly have come full circle.

The current proliferation of fake news online and on the air is

motivated by money.

Any click, even if only for a moment, makes

money; therefore, fake news creators are incentivized to create fake

news articles.

It is the clicks and the website/video views that fuel

the money for fake news websites, so the more outrageous and false

the story, the more incentive there is for the author to disregard the

facts or truth of the story.

Eventually, people started creating fake news websites that, at

first glance, look like credible news sources and/or mimic the names

of credible news sources to tempt more people to go to the site and

click on the stories.

Fake news websites mushroomed during the

2016 United States Presidential election and many of those websites

Id.

See Dempsey, supra note 65.

See id.

See Humphrey, supra note 59.

See id.

See id. at 135-36.

See Dempsey, supra note 65.

Id.

Emma Jane Kirby, The City Getting Rich from Fake News, BBC NEWS (Dec. 5, 2016),

http://www.bbc.com/news/magazine-38168281.

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were created in a “small city in Macedonia.”

The phrase the

“Macedonia teens” became synonymous with fake news websites and

stories, a verbal shorthand for the most egregious examples of fake

news.

In this Macedonian town, “teenagers [were] pumping out

sensationalist stories to earn cash from advertising” and making more

money than they could have dreamed of before solely on fake news

websites.

“A Macedonian teen is claiming to have made at least

$60,000 producing fake news in the past six months, mostly by

appealing to the supporters of Donald Trump.”

This teen is just one

of hundreds in Macedonia who are making money in ad revenue

through fake news websites.

Even more disturbing, there is no incentive for anyone in

Macedonia to stop the spread of fake news websites and stories.

The

truth is that the city itself is getting rich from fake news.

The mayor,

scolding a reporter, says, “There’s no dirty money in [Macedonia], . . .

before adding curiously that he is rather proud of the entrepreneurs of

his tiny little city, thousands of miles from the U.S., [who] have

influenced the outcome of the American election.”

And as one of the

teens noted, “[t]eenagers in our city don’t care how Americans vote,

. . . [t]hey are only satisfied that they make money.”

This “digital gold rush” in Macedonia is a problem for social

media companies like Facebook.

The websites created there are

pushing out plagiarized content, both real and fake, aimed at getting

U.S. political readers to use their sites, not necessarily to influence

elections or political views.

These fake news sites are not limited to

the “Macedonian teens” with plenty of the same type of websites being

Id.

See Zimdars, supra note 74.

See Kirby, supra note 87.

Hayley Miller, Macedonian Teen Claims He Made $60,000 Producing Fake News Mostly

Targeted to Trump Supporters, HUFFINGTON POST (Oct. 12, 2016), https://www.huffingtonpos

t.com.au/entry/macedonian-teen-claims-trump-supporters-paid-him-60k-to-produce-fake-ne

ws-during-campaign_us_584ac403e4b0bd9c3dfc51b7.

Id.

See Kirby, supra note 87.

See id.

Max Read, Can Facebook Solve Its Macedonian Fake-News Problem?, N.Y. MAG. (Nov.

4, 2016), http://nymag.com/selectall/2016/11/can-facebook-solve-its-macedonian-fake-news-

problem.html.

Id.

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created right here in the United States.

All of these websites started

trending in Facebook, because “Facebook is built to engage its

users.”

100

The truth or falsity of the news didn’t factor into Facebook’s

algorithm.

101

This type of monetized and targeted behavior is not solely the

province of those with nefarious motives.

102

Traditional news outlets

have begun using sponsored content to help increase viewership.

103

“Sponsored content, also referred to as native advertising, paid content,

advertorials, or infomercials,” have begun appearing everywhere on

legitimate websites and news articles.

104

This content is supposed to

have a bias, as it is advertising and meant to sway the consumer to a

particular side or view.

105

Sponsored content, marked with an easy to

miss disclaimer, looks like a news article but it is not; it is

advertising.

106

[C]ompanies often label native ads as “sponsored,”

“sponsored content,” “brand publishing,” “brand

publisher,” “promoted,” “paid for and posted by,”

“sponsor generated content by,” or “presented by.” The

media outlets also vary as to where the labeling is

placed, with some placing it above the article, and

others above the headline, in the byline with the

advertiser’s name, to the immediate left of the headline,

or at the bottom of the article with the advertiser’s

name.

107

The public is easily confused about what is real news and what

is fake news on many Internet websites due to the blurred lines in

vocabulary and format surrounding sponsored advertising.

108

The

lines have become so skewed, that only those persons who have had

Id.

100

Id.

101

Id.

102

LARRY ADKINS, SKEWED: A CRITICAL THINKER’S GUIDE TO MEDIA BIAS 86-87 (2016).

103

Id.

104

Id. at 85.

105

Id.

106

Id.

107

Id. at 88.

108

Id.

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media literacy training, or are technologically savvy, can evaluate of

news online correctly.

109

The prevalence of social media has enabled news of all kinds,

even when not real or not complete or false, to spread quickly and

muddle true journalism.

110

Social media and Google make real news

articles harder to find because blogs, fake news websites, and other

“suspect” news sites are usually easier to find and easier to spread.

111

Moreover, “[w]e live in a sound-bite society.”

112

There is no time to

delve into news for lengthy explanations, because “the nature of

broadcast news is to focus on mostly providing information quickly, in

short chunks.”

113

Today’s society has a short attention span, which means many

people are not hearing complete reporting and explanations from MSM

news. Many Americans are only watching fake news programs or

primarily entertainment programs as their only source for news.

114

“Programs like The Daily Show, along with Fox News, MSNBC, talk

radio, myriad blogs and social networking site[s], have become

significant sources of political information.”

115

These MSM, radio and

other fringe media sites have become common for many people in the

U.S., with viewer numbers usually organized by age.

116

The Daily

Show and The Colbert Report were the media outlets for the younger

generation and Fox News for the over 65 crowd.

117

“Political

information no longer comes to us primarily from news broadcasts or

newspapers, nor are the myriad sources through which it does flow

clearly and consistently labeled.”

118

Ironically, even though more people are turning to supposed

fake or entertainment news outlets, the people who run those outlets

resist scrutiny and having their work edited.

119

John Stewart famously

scoffed at Tucker Carlson during an interview and professed that his

show “followed puppets” on Comedy Central and was therefore not

109

Id.

110

Id.

111

Id.

112

See id. at 257.

113

See id. at 88

114

THE STEWART/COLBERT EFFECT 184-85 (Amarnath Amarasingam ed., 2011).

115

Id.

116

Id.

117

Id.

118

Id.

119

Id.

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open to criticism of journalistic standards.

120

Stewart also went on Bill

Moyers’ Journal and said that they “had no obligation to follow the

news cycle . . . because . . . we are not journalists.”

121

This statement

is both true and disingenuous at the same time, given that many

younger viewers said The Daily Show was their major source of

news.

122

3. Alternative Facts and Disinformation

The idea of “alternative facts” is a relatively new concept, first

popularized after the 2017 inauguration of President Donald J.

Trump.

123

“‘Alternative facts’ [is] a term that . . . became synonymous

with a willingness to persevere with a particular belief either in

complete ignorance of, or with a total disregard for, reality.”

124

This

new world where facts are not facts depending on a person’s point of

view has never before been so widespread among the members of a

democratically elected government administration, but the problem is

not really new. This world creates problems for lawyers, judges, and

policymakers, in particular.

125

In a world of fake news and alternative facts, it is social media

that fuels the flames.

126

“Disinformation campaigns on social media

are designed to create confusion and erode trust in democratic

institutions.”

127

And there is no clear way to combat the spread of false

statements and disinformation. Justice Brandeis believed that the way

to correct ignorance or misperceptions was to respond with “more

speech.”

128

Research shows, however, that Justice Brandeis’ cure does

not actually work for “certain types of political misperceptions and

may in some cases be counterproductive.”

129

120

Id. at 183.

121

Id.

122

Id. at 184.

123

S.I. Strong, Alternative Facts and the Post-Truth Society: Meeting the Challenge, 165

U. PA. L. REV. ONLINE 137, 137 (2017).

124

Id.

125

Id.

126

Id.

127

Denise Clifton, A Murder Plot, a Twitter Mob, and the Strange Unmasking of a Pro-

Kremlin Troll, MOTHER JONES (June 5, 2018), https://www.motherjones.com/politics/2018/06

/disinformation-russian-trolls-twitter-facebook-election-2018/.

128

See Strong, supra note 123.

129

Id. at 138.

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In our current society, the reluctance to believe “more speech”

on a subject is likely moving away from political thought and with the

rise of social media, like Facebook, Twitter, and YouTube, is affecting

all areas of our lives.

130

“The [Twitter] platform is a dream for

spreading disinformation: [t]he ability to share ideas very quickly,

impassion people across national borders, with anonymity and while

manufacturing momentum—these are integral features to how Twitter

works.”

131

Social media is not something that can be ignored and will

only become more ingrained into our national culture and identity as

time goes on.

132

The danger of ideas like alternative facts is that falsehoods and

lies become normalized into a new reality where truth is cheapened

and malleable.

133

What is being argued now, on news programs across

the United States, is “that there are so many shades of gray that clear

facts just don’t really exist.”

134

More than denigration of what is true

and what is false, the idea of alternative facts becomes a “symptom of

media distrust” and feeds into a cycle of disinformation and fake

news.

135

This distrust cycles back to the practice of framing any

negative press as fake news to limit or restrict the freedom of the press

in contravention of the First Amendment, rather than the accepted

historical practice of defining fake news stories or media hoaxes.

136

C. Importance of Fighting Fake News, Alternative

Facts, and the Spread of Disinformation

It is critical that lawyers are prepared to evaluate and combat

fake news, alternative facts, and disinformation campaigns.

137

Their

professional competence and ability to effectively practice law is

130

See id.

131

See Clifton, supra note 127 (internal quotation marks omitted).

132

See id.

133

Aaron Blake, Kellyanne Conway Says Donald Trump’s Team has ‘Alternative Facts.’

Which Pretty Much Says It All, WASH. POST (Jan. 22, 2017), https://www.washingtonpost.com

/news/the-fix/wp/2017/01/22/kellyanne-conway-says-donald-trumps-team-has-alternate-fact

s-which-pretty-much-says-it-all/?noredirect=on&utm_term=.cab81d437929.

134

Id.

135

Id.

136

Jon Swaine, Donald Trump’s Defends ‘Alternative Facts’ after Widespread Protests,

GUARDIAN (Jan. 23, 2017), https://www.theguardian.com/us-news/2017/jan/22/donald-

trump-kellyanne-conway-inauguration-alternative-facts.

137

See Blake, supra note 133.

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shaped by their ability to see through media manipulation and bias.

138

In addition to the everyday practice of law, lawyers and judges will be

standing in the front lines of the war on the media and the First

Amendment as officers of the court.

139

The media literate attorney is

going to be critical to the defense of democracy and the Constitution.

140

Alternative facts is a fairly new concept.

141

Attacks on

democracy and truth and justice are not new.

142

Lawyers and judges

must be ready, and being media literate is only one weapon in the war

against disinformation and charges of fake news against the legitimate

media.

143

Authority figures who spread fake news and disinformation

to others are dangerous because of the tendency of people to model

“conformity, or social proof, by imitating the behavior of other

people.”

144

This encourages groupthink where “[m]embers of the in-

group have a stronger feeling of group-safety compared with members

of the out-group.”

145

This feeling of safety in group conformity makes

social media a space that exacerbates disinformation and fake news

spread by authority figures.

146

Facebook’s Deputy General Counsel

weighed in on this saying, “[t]here are important economic and

financial underpinning [fake news] that are just as critical at getting to

the bottom of as the technological questions.”

147

Alternative facts and fake news are the edge of an abyss, where

society is watching the real-time amalgamation of “TV news

morph[ing] into infotainment and reality television.”

148

News,

especially cable news, has become the purview of “news personalities”

rather than journalists.

149

News has become nothing more than

138

See id.

139

See id.

140

See id.

141

See id.

142

See id.

143

See id.

144

Jan-Willem H. Bullee et al., The Persuasion and Security Awareness Experiment:

Reducing the Success of Social Engineering Attacks, 11 J. EXP. CRIMINOLOGY 97, 97 (2015),

https://link.springer.com/content/pdf/10.1007%2Fs11292-014-9222-7.pdf.

145

Id.

146

Id.

147

Ross Todd, Facebook Lawyer Details ‘Fake News’ Fight, RECORDER (July 20, 2017),

https://www.law.com/therecorder/almID/1202793548492/Facebook-Lawyer-Details-Fake-

News-Fight/?slreturn=20180506182425.

148

Phillip N. Meyer, Alternative Facts and the Law: Is Justice a Reality?, ABA J. (June

2017), http://www.abajournal.com/magazine/article/alternative_facts_law_justice_reality.

149

Id.

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“reporting what experts on both sides think about events as sufficient

to tell the “truth” about events rather than undertaking more costly (and

perhaps more off-putting and less entertaining) investigative reporting

characteristic of print journalism.

150

In the end, “the media left it up to

the audience to choose what to believe based on competing opinions,

rather than on presentation of evidence.”

151

If we are not careful, soon

we will have lost what it means to agree on facts, and that is something

that lawyers and judges must never let happen because the

consequences are too severe.

152

Even the Pope has weighed in on fake

news and the dangers of “spreading . . . disinformation online or in the

traditional media,” calling it a “grave sin.”

153

To heighten the absurdity, or alert us to the grave danger of an

alternative facts miasma, the Oxford dictionary chose “post-truth” as

its 2016 Word of the Year.

154

It defined post-truth as “relating to

denoting circumstances in which objective facts are less influential in

shaping public opinion than appeals to emotion and personal belief.”

155

The objective and mission of everyone in the legal community is to

fight back against a “post-truth” world before it overtakes our real

world. It may be that we have reached a point of no return, and there

is no going back.

156

Lawyers, however, must be educated on how to

recognize and evaluate facts, media messages, and the implicit bias or

objectivity of the media, remaining the arbiters of truth in a “post-

truth” world.

157

Media literacy education is critical to this ability

because it not an innate talent.

158

Media literacy is a learned skill,

similar to learning to analogize facts to law.

159

150

Id.

151

Id.

152

Id.

153

Rosa Flores, Pope Warns Against ‘Fake News’ and Likens it to ‘Crafty Serpent’ in

Genesis, CNN (Feb. 26, 2018), https://www.cnn.com/2018/01/24/world/pope-condemns-

fake-news/index.html; Paulina Dedaj, Pope Criticizes ‘Fake News’, Calls it a ‘Grave Sin’,

FOX NEWS (Dec. 18, 2017), http://www.foxnews.com/world/2017/12/18/pope-criticizes-fake-

news-calls-it-grave-sin.html.

154

Gleb Tsipursky, Towards a Post-Lie Future, HUMANIST (Feb. 21, 2017),

https://thehumanist.com/magazine/march-april-2017/features/towards-post-lies-future.

155

Id.

156

Id.

157

Id.

158

Id.

159

See id.

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D. Things that Help, but Do Not Fix the Problem

The proliferation of fake news and alternative facts have

“inaugurated the golden age of fact-checkers—news sites that expose

public lies with well-crafted barrages of ‘real’ facts and data.”

160

There

have always been some attempts to stay ahead of fake news in the

media, but “[f]act-checking is particularly challenging in the current

era of ‘fake news,’ ‘alternative facts,’ and gaslighting coming from the

[U.S. government].”

161

In the past, fact-checking was done by

librarians or staff in newsrooms.

162

Those who are fighting fake news

are taking a new approach, however, creating multiple fact-checking

Internet websites, such as FactCheck.org, The Washington Post’s The

Fact Checker, and PolitiFact.

163

The ABA has created a “web-based

fact-check service to help the public find dependable answers to

swirling and sometimes confusing legal questions.”

164

The ABA’s

service uses case law and statutes to combat fake legal news.

165

As much as efforts to combat fake news are out there, though,

there are still many setbacks in the technological giants that helped

create the fake news proliferation.

166

“Nearly a year after Facebook

and Google launched offensives against fake news, they’re still

inadvertently promoting it—often at the worst possible times.”

167

October 2017, the New York Times reported fact-checking websites

contained fake news ads, such as Politifact and Snopes, as recently as

the week before.

168

Only with sharp eyes and a complete

understanding of the ways fake news creators and media companies

160

Mick O’Leary, Fact-Checkers Resist Alternative Facts, QUESTIA (Oct. 2017),

https://www.questia.com/magazine/1G1-507185452/fact-checkers-resist-alternative-facts.

161

Amrita Khalid, The Best Political Fact-Checking Sites on the Internet, DAILY DOT (Sept.

21, 2016), https://www.dailydot.com/layer8/best-fact-checking-websites/.

162

Id.

163

Id.

164

ABA Rolls Out New Fact Check Website to Help Separate Legal Fact From Fiction,

ABA (Sept. 1, 2017), https://www.americanbar.org/news/abanews/aba-news-archives/2017/0

8/aba_rolls_out_newfa/.

165

Hilarie Bass, ABA Legal Fact Check Sorts Fact from Fiction On Legal Issues, ABA J.

(Jan. 2018), http://www.abajournal.com/magazine/article/aba_legal_fact_check.

166

Id.

167

Fake News Ads are Reportedly Popping Up On Fact-Checking Websites, FOX NEWS

(Oct. 19, 2017), http://www.foxnews.com/tech/2017/10/19/fake-news-ads-are-reportedly-

popping-up-on-fact-checking-websites.html.

168

Id.

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craft these misleading and false stories, can people be prepared to

evaluate the media messages for themselves.

169

IV. REVIEW OF MEDIA LITERACY AND “FAKE NEWS” IN NON-

LEGAL AND LEGAL EDUCATION

Media literacy is the key to fighting the spread of

disinformation, fake news, and alternative facts.

170

However, media

literacy education is not prevalent in either non-legal education or legal

education.

171

The lack of media literacy education in general means

that law students do not graduate with the necessary skills to be a

competent and practice ready lawyer.

172

A. Non-Legal Education

In general, media literacy education is not currently widespread

in our education system and what education there is has not prepared

students of any age for the constant media exposure, manipulation, and

material commoditization they are exposed to in their daily lives.

173

The twenty-first century is a media saturated, technologically

dependent, and globally connected world.

174

However, most education

in the United States has not kept up with advances in technology or

educational research.

175

The beginnings of federal educational support for media

literacy education began in the 1970s, but dwindled in the early 1980s,

and only recently became a significant part of a few educational

curriculums.

176

Moreover, “scholars and educators have struggled to

169

Id.

170

See generally Part IV.A.

171

See generally Part IV.B.

172

See generally Part IV.B.

173

Seth Ashley, Teaching Nuance: The Need for Media Literacy in the Digital Age, BLUE

REV. (Feb. 20, 2013, https://scholarworks.boisestate.edu/cgi/viewcontent.cgi?article=1064&c

ontext=communication_facpubs.

174

Id.

175

DOUGLAS KELLNER & JEFF SHARE, CRITICAL MEDIA LITERACY, DEMOCRACY, AND THE

RECONSTRUCTION OF EDUCATION (2007), https://pages.gseis.ucla.edu/faculty/kellner/essays/2

007_Kellner-Share-Steinberg%20and%20Macedo_ch1.pdf.

176

Marjorie Heins & Christina Cho, Media Literacy: An Alternative to Censorship, NAT’L

COALITION AGAINST CENSORSHIP (2003), http://ncac.org/fepp-articles/media-literacy-an-

alternative-to-censorship.

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define the field [of media literacy] and establish standards for what it

means to be media literate.”

177

For many years, educational institutions simply did not have

formal programs to teach media literacy to students.

178

Even where

some formal education standards and programs were created, adoption

has been uneven and the educational standards do not always agree

with each other.

179

There is ongoing debate about the appropriateness

of a protectionist point of view, which some see as infantilizing

students, versus a more empowered approach to teaching students

about media.

180

A mix of many reasons and viewpoints are accepted

by most current media literacy education programs.

181

Media literacy education programs are either enthusiastically

accepted or haphazardly implemented and/or ignored altogether at all

school levels.

182

Another standardization issue of media literacy

programs is the lack of definition and agreement among educators as

to the scope and outcomes of a media literacy program.

183

Nevertheless, there are many quality programs available, such as the

programs which use the principles for media literacy as set out by the

NAMLE.

184

The Core Principles of Media Literacy Education are:

1. Media Literacy Education requires active inquiry

and critical thinking about the messages we receive

and create.

2. Media Literacy Education expands the concept of

literacy to include all forms of media (i.e., reading

and writing).

3. Media Literacy Education builds and reinforces

skills for learners of all ages. Like print literacy,

those skills necessitate integrated, interactive, and

repeated practice.

177

See Ashley, supra note 173.

178

Bradford L. Yates, Media Literacy and the Policy Making Process: A Framework for

Understanding Influences on Potential Educational Policy Outputs, INST. EDUC. SCI. (1998),

https://files.eric.ed.gov/fulltext/ED424602.pdf.

179

Id.

180

Id.

181

Id.

182

The Core Principles of Media Literacy Education, NAT’L ASS’N FOR MEDIA LITERACY

(2007), https://namle.net/publications/core-principles/.

183

Id.

184

Id.

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4. Media Literacy Education develops informed,

reflective and engaged participants essential for a

democratic society.

5. Media Literacy Education recognizes that media

are a part of culture and function as agents of

socialization.

6. Media Literacy Education affirms that people use

their own skills, beliefs and experiences to

construct their own meanings from media

messages.

185

These core principles form the basis for many current media

literacy programs integrated in schools at all levels.

186

A benefit of

teaching media literacy, beyond the ability to evaluate media

messaging and bias, is that “bringing media culture into the learning

environment—from kindergarten to graduate school—guarantees a

high level of engagement by students.”

187

It is critical that the U.S.

education system integrates media literacy programs into school

programs to combat media manipulation and make children and adults

media savvy consumers, as many other countries have already

adopted.

188

“Individuals are often not aware that they are being

educated and positioned by media culture, as its pedagogy is frequently

invisible and is absorbed unconsciously.”

189

It was even suggested that states should require schools to teach

media literacy to combat fake news, evaluate bias, and heighten

awareness of media literacy.

190

“A 2016 Stanford University study

showed that middle school, high school, and college students

frequently had difficulty judging the credibility of information that

they found online and are frequently duped by fake news, biased

sources, and sponsored content.”

191

This study showed that it is not

just young children who cannot decipher the complicated and

sophisticated systems those engaged in disinformation campaigns

185

Id.

186

Id.

187

Thoman & Jolls, supra note 3.

188

Id.

189

See KELLNER & SHARE, supra note 173.

190

Larry Atkins, States Should Require Schools to Teach Media Literacy to Combat Fake

News, HUFFINGTON POST (July 13, 2017), https://www.huffingtonpost.com/entry/states-

should-require-schools-to-teach-media-literacy_us_59676573e4b07b5e1d96ed86.

191

Id.

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create, but even college students and many adults are taken in by fake

news.

192

Media literacy education is needed now to ensure that

“citizens are equipped to make the decisions and contributions to a

global economy and global culture demand of them.”

193

As a nation we do not properly educate our children about

media literacy, resulting in incoming college students who cannot

distinguish between authoritative sources and fake news during their

freshman composition research.

194

The lack of media literacy training

and inability to construct credible arguments are found among

incoming freshman students even at the U.S.’s most prestigious

universities.

195

Even at the university level, “[t]he age of social

media—and of fake news—is such a new development that we have

not yet come to terms with how best to educate students and citizens

on how to successfully navigate it.”

196

Comprehensive media literacy will help in the future, but at the

moment we have a critical mass of students and adults who do not

know how to discern real news from fake news.

197

They do not know

how to utilize basic media literacy principles in their daily personal

and professional lives, but they are learning.

198

When Melissa

Zimdars’ viral Google doc of “False, Misleading, Clickbait-y, and/or

Satirical ‘News’ Sources” garnered her Internet fame, and death

threats, it also made the “list more interesting to [her] students. The

disconnect between the defamatory articles and the person they knew

proved why such websites belonged on [her] list in the first place.”

199

It is time for media literacy education to be a required part of

education to teach critical thinking skills and prepare citizens for the

media intensive world we all inhabit.

200

Students are “technology-

savvy yet information-illiterate” and without a comprehensive media

literacy education program at some level of their schooling, they will

192

Id.

193

Thoman & Jolls, supra note 3.

194

Ellen Wayland-Smith, Commentary: Where Do Students Learn About Fake News? In

Freshman Comp, CHRONICLE HIGHER EDUC. (Feb. 26, 2017), https://www.chronicle.com/artic

le/Commentary-Where-Do-Students/239266.

195

Id.

196

Id.

197

Id.

198

Id.

199

See Zimdars, supra note 74.

200

Lauree Padgett, Filtering Out Fake News: It All Starts With Media Literacy, INFO.

TODAY (Jan./Feb. 2017), http://www.infotoday.com/it/jan17/Padgett—Filtering-Out-Fake-

News.shtml.

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exit into the world without those critical skills.

201

NAMLE’s executive

director, Michelle Ciulla Lipkin, advocates for media literacy

education in elementary school and believes that states should “pass

legislation requiring media literacy inclusion in their curriculum.”

202

Accountability is a weapon against fake news, and everyone involved

in creating media should be held up to scrutiny.

203

Lipkin says that

education “is key and is our most powerful weapon against

falsehoods.”

204

B. Legal Education

Media literacy education is a critical skill for lawyers and

judges because the legal profession uses media differently than other

professions.

205

Currently, “[m]edia literacy occupies a very limited

and marginal role in North American Law Schools and no Law School

teaches its students the conventions of media language.”

206

Media

literacy is essential to effective legal advocacy because the correct

interpretation of facts and reality, unclouded by media manipulation,

is at the heart of legal practice.

207

“Ethical judgement is . . . critical to

law practice.”

208

Legal education is focused on educating graduates to become

lawyers who are “practice-ready and to help make them better prepared

for lifelong learning, something that goes to the core of what it means

to be a lawyer.”

209

Lawyers need to be “expert learners,” but without

instruction in media literacy, they are missing a critical portion of the

mandate that they graduate with critical thinking skills.

210

“For

lawyers and law students, being an expert learner requires that they

know what knowledge they have, what knowledge they lack, what they

will need to learn, how to obtain that knowledge, how to apply that

201

Id.

202

Id.

203

Id.

204

Id.

205

JULIAN HERMIDA, THE NEED FOR TEACHING MEDIA LITERACY AT THE UNIVERSITY LEVEL:

THE CASE OF LEGAL EDUCATION 3 (2006), http://www.julianhermida.com/algoma/medialitera

cy.pdf.

206

Id.

207

Id.

208

Nelson P. Miller, Meta-Ethical Competence as a Lawyer Skill: Variant Ethics Affecting

Lawyer and Client Decision-Making, 9 THOMAS M. COOLEY J. PRAC. & CLINICAL L. 91 (2007).

209

Niedwiecki, supra note 24.

210

Id. at 155.

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knowledge, and how to know they are getting the right knowledge.”

211

Awareness is part of the equation for critical thinking and full “expert

learning” is not possible when a law student or lawyer is unaware of

the media effect of bias or falseness.

212

It is imperative to optimal job performance that new law

graduates are media literate, as well as lifelong learners.

213

“The ability

to locate, understand, and use information and to solve problems is a

necessary competency for most jobs.”

214

Some of the information

literacy necessary for job success and for lawyers are: “Digital media

literacy . . . [c]ritical thinking, problem solving, and analytical

reasoning, and . . . [the] [a]bility to locate, organize, and assess the

credibility of information.”

215

Employers noted that these qualities

indicate a more successful employee and that it is “easier to develop

these skills in students than in experienced workers.”

216

This is not to

say that experienced lawyers would not benefit from extensive media

literacy training.

217

It is, however, easier to expose law students to the

principles of media literacy to make them “practice-ready” and to do

that as a required part of their curriculum.

218

Fake news affects the legal profession greatly because our

purpose is to look for truth and justice, and the inability to see how

media messages affect what are facts and what are lies distorts how

lawyers and judges interpret the world.

219

What the truth of a matter

is, resting on the evidence and facts, is a critical question for lawyers.

220

“If we exist exclusively in a hall of mirrors where there are no actual

facts but only alternative facts, then there may be judgment but not

justice.”

221

Social media is the funhouse mirror and the legal system

may be trapped by a reality where everything is subjective and fake

news is shouted by anyone who does not like the outcome.

222

211

Id.

212

Id.

213

Sharon Weiner, Information Literacy and the Workforce: A Review, 34 EDUC. LIBR. 7, 8

(2011), http://educationlibraries.mcgill.ca/article/view/306.

214

Id.

215

Id. at 9.

216

Id. at 10.

217

Id.

218

See id. at 8.

219

See id.

220

See Meyer, supra note 148.

221

See id.

222

See id.

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Ultimately, Facebook may be on the right track as it tries to combat

one cause of the spread of disinformation by “disrupting the economic

incentives of fake news producers who seek to draw eyeballs to their

sites to boost revenues through advertisements, subscriptions, or

purchases.”

223

Certainly, not all cries of fake news and alternative facts

have to do with money, but taking away that incentive will do more to

expose the non-financial motivations of those who seek to spread

disinformation in the news and online.

224

Stanford’s study found that when “most high-school and

college students are unable to distinguish real from fake information

when evaluating online sources” it is not a small thing.

225

The study

called the results “bleak” and “a threat to democracy.”

226

Legal

education should take the results just as seriously and resolve to ensure

that the graduates it sends to the world to be officers of the court and

guardians of justice have the media literacy skills to practice law with

an objective and practiced eye towards the media they consume and

create.

227

V. LEGAL EDUCATION’S MANDATE UNDER ABA STANDARDS

301 AND 302 – GRADUATE A MEDIA LITERATE LAWYER

The ABA mandates that every law school meet specific

standards to ensure all the school’s graduates are competent lawyers.

228

Its standards include a mandate to make all graduates media literate.

229

However, despite that inclusion, it is clear that legal education and

even non-legal education are woefully underpreparing their students to

understand and sift through potential fake news or alternative facts.

230

A. Critical Thinking Under ABA Standards 301 and

302 and the Media Literacy Core

The ABA Chapter 3 Program of Legal Education requires that:

223

See Todd, supra note 147.

224

See id.

225

See Wayland-Smith, supra note 192.

226

See id.

227

See id.

228

See generally Part V.A.

229

See generally Part V.A.

230

See generally Part V.A.

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STANDARD 301. OBJECTIVES OF PROGRAM OF

LEGAL EDUCATION

A law school shall maintain a rigorous program of legal

education that prepares its students, upon graduation,

for admission to the bar and for effective, ethical, and

responsible participation as members of the legal

profession.

. . .

STANDARD 302. LEARNING OUTCOMES

A law school shall establish learning outcomes that

shall, at a minimum, include competency in the

following: . . .

(b) Legal analysis and reasoning, legal research,

problem-solving, and written and oral communication

in the legal context;

responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and

ethical participation as a member of the legal

profession.

231

Critical thinking skills support all the highlighted skills above

and are necessary to be a competent and ethical member of the legal

profession.

232

The skills enumerated above include the ability to

critically examine, evaluate, and create personal and professional

media.

233

Media literacy competency must be included as one of the

“other professional skills” necessary in law school education under

ABA Standard 302(d).

234

Critical thinking skills are the nexus between

media literacy education and ABA Chapter 3 law school education

standards.

235

Additionally, critical thinking is fundamental to media literacy

education and that knowledge will enhance any student’s research,

writing, and argumentation, especially that of a law student.

236

Media

literacy skills are necessary for the most effective client advocacy.

237

231

ABA STANDARDS, supra note 23, §§ 301, 302 (emphasis added).

232

Id.

233

Id.

234

Id.

235

Id.

236

See Yates, supra note 176.

237

See id.

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2019 MEDIA LITERACY AND FAKE NEWS 645

Media literacy skills are more critical than ever because “the media do

not present their messages in a neutral and value-free way; they shape

and distort reality.”

238

It is the job of an attorney, as advocate and

counselor, to interpret and advise their clients and see beyond the

media messaging.

239

“Media literacy promotes the critical thinking

skills that enable people to make independent choices.”

240

Incomplete critical thinking education in law school has led to

law school graduates who do not have the ability to discern current

misinformation in media.

241

These attorneys are not prepared for the

advanced technological media manipulation and disinformation

campaigns, affecting their ability to decide what is and is not the

truth.

242

Essential lawyering skills, such as client advocacy, legal

argumentation and analogizing, and effective legal research all suffer

without the right media literacy education.

243

B. “Practice Ready” Law School Graduate Means a

Media Literate Law School Graduate

The law school curriculum must support these necessary skills

to graduate a law student into a “practice-ready” lawyer.

244

“Part of

the issue is that we need to train lawyers to think like clients, not to

think like lawyers.”

245

And while that means hard tech in some cases,

it should also mean the evaluation of technology and media that clients

use and have in their life. Law schools are not keeping up with this

mandate from employers, however.

246

In fact, only about half of

practicing lawyers believe that graduating law students have the skills

necessary to practice law.

247

Law schools must prepare students by

238

See id.

239

See id.

240

ART SILVERBLATT, MEDIA LITERACY: KEYS TO INTERPRETING MEDIA MESSAGES 4

(Praeger eds., 3rd ed. 2007).

241

Id.

242

Id.

243

Id.

244

Katherine Kruse, Biting Off What They Can Chew: Strategies for Involving Law Students

in the Problem-Solving Beyond Individual Client Representations, 8 CLIN. L. REV. 405, 407

(2002).

245

Id.

246

Id.

247

Id.

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honing the critical thinking skills necessary for effective legal research,

problem solving, and effective client interviews and representation.

248

Law students need broad education in problem solving, one of

the ABA standards, and part of effective client representation is the

effective evaluation of information and fact gathering.

249

The six steps

to lawyering as problem solver are the following: (1) problem-

identification, (2) gathering and evaluating information and raw

materials, (3) solution-generation, (4) solution-evaluation, (5)

decision, and (6) action.

250

Media literacy skills are a necessary part

of gathering and evaluating information and raw materials effectively

and are the current missing part of legal education.

251

VI. LAW SCHOOL-BASED MEDIA LITERACY EDUCATION

SOLUTIONS

There are many different models and structure of media

literacy education that will serve to provide a base of knowledge for

law students.

252

Curriculum structured to provide as much or as little

as a law school wants to insert into its particular program of legal

education is possible.

253

Media literacy education in law school can

take the form of non-credit seminars or a for-credit class in the regular

curriculum which counts towards graduation.

254

The following are

some recommendations for law schools to adopt as they include media

literacy in their programs.

255

1. Train librarians in media literacy principles and

have the law librarians use one class period in each

1L skills or intensive writing class to teach media

literacy to the law students. This model can be

combined with the law schools’ already existing

Scholarly Writing Requirement programs, clinics,

or upper level advanced legal research classes.

256

248

See id.

249

See id.

250

See id.

251

See id.

252

See Yates, supra note 176.

253

See id.

254

See id.

255

See id.

256

See id.

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2. Craft multiple media literacy class modules tied to

law topics and hold law faculty training in media

literacy principles which can then be incorporated

into substantive law classes.

257

3. Create a semester-long class in Media Literacy for

credit towards a student’s law degree. This class

may be an elective or required class for 1-3 credit

hours. The Media Literacy class may be a stand-

alone class or may be combined with pro bono,

clinic, or other required law school training

programs.

258

Every law student must have exposure to media literacy

education in law school as part of the law school’s requirements under

ABA Chapter 3.

259

How that training is integrated in law school

education is up to the individual law school.

260

Student could see a

media literacy class in their substantive class, students could take a 1-

credit Media Literacy and the Law course, or students could take a

combined training in media literacy and scholarly writing for their

writing requirement.

261

Media literacy education must become a part

of the legal education at every ABA accredited law school to comply

with ABA Chapter 3 education standards.

262

VII. CONCLUSION

Current media literacy education in elementary, secondary, and

post-secondary schools is unevenly adopted and inconsistent. Media

literacy is a necessary skill to have to be an effective lawyer, judge and

counselor. Law schools have a mandate to graduate law students who

are effective, ethical, and responsible members of the legal profession.

The “practice-ready” law school graduate is not completely educated

if he or she lacks the essential critical thinking skills necessary to

problem-solve and research as a media savvy student. Only when

including media literacy education in their programs will law schools

fully discharge their obligations to their students and the legal

257

See id.

258

See id.

259

See id.

260

See id.

261

See id.

262

See id.

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profession under ABA Chapter 3 and truly prepare their students to be

members of the legal community.

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