By Stephen Smoot
Thousands of West Virginians last week were jarred by an announcement from the West Virginia Department of Motor Vehicles, or what they thought was an official release from that agency.
A Facebook poster from Red Jacket in Mingo County released a red herring into social media. “Red herring,” a term found often in old British crime and detective novels, means a piece of information meant to fool or distract.
The post claimed that “The West Virginia Department of Motor Vehicles has announced a new statewide policy requiring all licensed drivers in the Mountain State undergo a complete driver re-examination in 2026.”
Elaborately written, the post shared specific “details” of what licensed drivers would have to do to be in compliance. The only obvious clue of its falsehood was the single word “satire” added at the conclusion.
An academic paper published in Nature earlier this year explains that “despite the many advantages social media offers, one of the most significant challenges to the rapid rise of fake news and AI-generated deep fakes across these social networks.” The article warns that proliferation of such pieces “can lead to a series of negative impacts, such as social trust, economic consequences, public health and safety crises.”
A significant portion of these come from bored individuals seeking to manipulate others. Many, however, originate from adversaries of the United States, such as Red China, Russia, or non-state bad actors, such as organized crime or terrorism.
Those that garnered the most attention in recent years come from pieces that claim to be “breaking news” about major political candidates and elections, but turn out to be completely false. Adding to the confusion come news stories from established and legitimate media outlets released prematurely and subsequently exposed as false.
While the First Amendment guarantees the right to “freedom of speech,” that comes with limits. The United States Supreme Court case Schenck v. United States (1919). That case concerned the publishers of a Socialist newsletter who, during World War I, demanded that those drafted find a way to avoid induction into the service. It called conscription “despotism in its worst form.”
A federal court determined that this action violated the Sedition Act of 1917. Sedition historically consists of speech that would tend to hinder government operation
Justice Oliver Wendell Holmes wrote in the majority opinion that “the most stringent protection of free speech would not protect a man in falsely shouting fir in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”
In 1798, the United States Congress enacted a Sedition Act, which held that “if any person shall write, print, utter, or publish . . . false, scandalous, and malicious writing or writings against the government of the United States . . . with the intent to defame . . . or bring them . . . into contempt or disrepute” that the perpetrator could face a significant $2,000 fine and/or two years in prison.
This act came after many years of newspaper publications that traded almost entirely in falsehoods, such as those supported by Thomas Jefferson implying that President George Washington during his second term had grown feeble-minded from age. Jefferson, Alexander Hamilton, and John Adams all had papers allied with them that launched spurious attacks on others.
After 1801, the Democratic-Republican party had control of Congress and repealed that law.
Satire has no legal definition or basis but is defined as “a literary work holding up human vices to ridicule or scorn” or “wit, irony, or sarcasm used to expose and discredit vice or folly.”
The Red Jacket social media post lacked any element of what might be considered satire. It’s posting had the impact of causing the people to question the government and perhaps bring it, at least briefly, into disrepute. The Sedition Act of 1798 is no longer law and that of 1918 is specifically written for wartime, so neither would apply here.
West Virginia Code 15-1E-94, however, establishes the crime of sedition and states that an individual “with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition.”
While the Red Jacket DMV post lay somewhere between the real definitions of both satire and sedition, it exposed a real issue. The Nature article cited studies showing that “humans are inherently poor at differentiating between fact and fiction, especially when inundated with information from various sources.” A little over half of Americans use social media as their primary source of information around the world, despite its notorious unreliability.
Michigan State released a study last May that indicated “individuals who experience the most distress and impairment in daily functioning from social media are more likely to believe fake news.”
At some point, a fake news post will create significant harmful consequences and government at all levels will need guidance from the law, either established or new, in how to address and punish perpetrators. State law currently recognizes intent as part of the proof of criminality, but that itself is difficult to prove in court. Additionally, state law on sedition refers to issues far more dangerous than confusion or inconvenience.
Social media consumers must approach information shared there with a discerning eye, perhaps to the point of assuming falsehood until proven otherwise.
The DMV, which has also worked to inform residents about online scammers posing as representatives from that agency, encouraged those with questions to regularly check official sources of information.
