What’s the legal definition of “fake news?” One newspaper publisher might sue to find out.

There’s a notorious American tradition of politicians lambasting — and even threatening to sue — news organizations that publish unflattering or potentially libelous stories. But what would happen if a news organization unfairly branded as “fake news” fought back?

Jay Seaton might soon find out. Seaton, the publisher of the Grand Junction Daily Sentinel in Colorado, made headlines in February when he threatened to sue Ray Scott, a Republican in Colorado’s State Senate, for calling his newspaper “fake news.”

If the spat should make its way into a lawsuit, it would put before the courts a topical question that has not yet been answered by the judicial system: What is the precise legal definition of fake news?

The dispute between the Grand Junction Daily Sentinel and Seaton began after the newspaper published an editorial calling on the senator to give an open-records law “a fair hearing before the full Senate.” Scott responded by tweeting that the newspaper was “very liberal” and calling it fact-free “fake news.” Three days later, Seaton published his column, which called the tweets “patently, provably false” and ended with a ominous “see you in court.”

Poynter caught up with Seaton to ask why he threatened to sue and why he thinks the Grand Junction Daily Sentinel could prevail in court.

What are the relevant factors in deciding to file this lawsuit? Was it an attempt to get a general statement of the judiciary in regard to “fake news” or what other aspects were part of your considerations?

I take the burden, imposed by the First Amendment, on a free press pretty seriously. Because the success of this democracy is due in large part to two players: our judicial system and the free press. An attack on either of them is pretty jeopardizing to our Constitution. So I am responding to that kind of attack on a free press in one of the ways that I am familiar with which is judicial remedies.

If this lawsuit becomes reality, it will be a legal precedent in regard to the “fake news” discussion. What do you hope the judiciary will clarify?

I would like to see a precise definition of what “fake news” is. And in my view that definition should be driven by actual examples of fabricated falsehoods, presented as news.

Also, the use of this term has been applied to legitimate news sources, whose primary asset is their credibility. And if the term “fake news” is applied to those organizations it is defamatory.

If you end up filing this lawsuit, we’re talking about liability law. In that case, Scott must have made a knowingly false statement or must have made it with reckless disregard to the truth. Can you prove that?

Senator Scott knows that what we do is not fake news. It is not fabricated. It is real. Are we perfect? No. We make mistakes but we work really hard to avoid mistakes. And if we make them, we correct them.

It is also true that this newspaper in 2014 endorsed Ray Scott and he was more than happy to publish that endorsement on his twitter feed and elsewhere. He also regularly references the Daily Sentinel. So I know that he knows that this organization is not fake. But he used that term to describe something he didn’t like. Not because he thinks we are fake but because he want to diminish this newspaper as a news source and diminish our credibility in order to avoid accountability for himself.

Do you think that modern journalism has an actual problem with “fake news?” Or is it mostly a political instrument that is being used these days?

I don’t think the industry has a problem with fake news. But we do have fabrications in the industry. What comes to mind is Jayson Blair and The New York Times. As soon as it was discovered that he was fabricating information in his news reports, he was fired immediately. There are no second chances in this in industry. So, do we have a problem with fake news? No. Are we under attack by people that are not interested in facing hard news reports about what they are up too? Yes, I think that is true.