Fox News Presented Information That Was False, Demonstrably So, and Offered Without Regard to Truth-Seeking
Republican Florida Gov. Ron DeSantis has yet to detail specific legislation to change libel laws, but the would-be presidential candidate is making no secret of his animosity for a press that would question him, his administration, or his ideas.
The governor recently convened a roundtable of conservative legal minds to bounce around notions about the best way to override the principles expressed in New York Times v. Sullivan, the reigning Supreme Court ruling in this area. The precedent makes it difficult for office holders and those in public life to bring successful legal actions because courts have ruled that public figures have the burden of proving that defendants libeled them with “actual malice.”
In doing so, he is following a lead from Donald Trump and other right-leaning politicians who eschew challenges in fact, policy, or action to what they have prescribed. Trump notoriously has led his political following to believe that the “lamestream” media is out to get him or anyone not adhering to MAGA principles, whether the issue is about how Trump has conducted his businesses or plotted to overthrow election results.
Whether ironically or out of practical application, however, that kind of thinking is currently working against Fox News, still the premier channel for right-leaning information. Fox and several of its personality hosts are being sued for $1.6 billion for defaming Dominion Systems, a software company that builds and sells voting machines to states for use in elections.
Depositions released in court records this week illustrate the degree to which Fox News’ most prominent hosts and top executives were complicit in the promotion of false conspiracy theories about the stolen election. The depositions and documents, including internal emails and text messages, underwrite the exact claims that would tend to make a lawsuit by Dominion successful.
The relevant understanding of current libel laws is that news organizations must be found to have published and distributed knowingly false information with “actual malice.” That means that a statement must be shown to be false, defamatory, and published “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Generally, public figures who sue must deal with findings that are much more stringent than cases involving you or me.
Clearly, the nation’s deep and worsening political divides are making journalism much more fraught, since politicians of every stripe are quite eager to bat away perceived criticisms or even questions from news organizations whose work is considered more friendly to one side or the other. The growing dependence on the use of anonymous sources, the cherry-picking of data and information, and the insistence of social media to equate opinion with fact all have contributed to a far more litigious society for cases claiming defamation. That’s why internal emails and messages can show context and intentions.
Fox News was filled for months with host after host demeaning Dominion election software or presenting speakers like Rudy Giuliani and Sydney Powell, Trump’s election lawyers, arguing without journalistic context or questioning that the software changed votes from Trump to Joe Biden, that the company was controlled from associates of former Venezuelan dictator Hugo Chavez and other mistruths.
In a sentence, it was information that was false, demonstrably so, and offered without regard to truth-seeking. In Dominion’s words, “actual malice.”
The filing in Delaware Superior Court — ahead of an April trial — was meant to show evidence towards Dominion’s argument that Fox’s leadership was aware that the claims of election fraud were untrue but nonetheless “spread and endorsed” them. Dominion’s lawyers argued that “not a single Fox witness testified that they believe any of the allegations about Dominion are true . . . Indeed, Fox witness after Fox witness declined to assert the allegations’ truth or actually stated they do not believe them, and Fox witnesses repeatedly testified that they have not seen credible evidence to support them.”
Fox filed a countersuit and Fox News downplayed the revelations from the correspondence, saying it was filled with “cherry-picked quotes stripped of key context.”
This case aside, DeSantis, Trump and others who want to make it easier to sue news outlets over the handling of materials that they personally do not like, may be opening the door to challenges of exactly the channels that they do like.
Depositions and Messages
What hit the media was the obvious bad news for Fox News, the reputation of its stars and the network, the size of the lawsuit and the apparent news that Fox content can be seen as generally biased, and more so in this case. But beneath all this are dual questions of journalistic responsibility and the state of libel law.
Much of the depositions reflected concern about Fox News remaining the premiere voice on the political Right. The messages underscored that Fox is committed to pushing for the success of right-leaning candidates, just in case any viewer might be confused by the “fair and balanced” motto that Fox uses.
Several emails to and from Fox‘s best known personality hosts showed specific concern about losing viewers to Newsmax and other right-leaning sites, suggesting that partisanship was hyped to keep MAGA followers as regular viewers.
And they illustrated concern about whether any of the election conspiracies were anything close to true. “Sidney Powell is lying,” Tucker Carlson wrote to a producer about claims that voting technology software had “flipped” Trump votes to Biden. But her conspiratorial remarks ran repeatedly and unchallenged anyway. Company founder Rupert Murdoch wrote to an agreeing executive that election denial was “terrible stuff damaging everybody.” In another message, Murdoch referred to the claims as “really crazy stuff” and said that it was “very hard to credibly claim foul everywhere.” In another message, Sean Hannity said Giuliani was “acting like an insane person” and colleague Laura Ingraham concurred: “Such an idiot.”
News anchor Bret Baier wrote that “there is NO evidence of fraud” and told Bill Sammon, former Washington bureau chief, that their team must “prevent this stuff,” meaning the spread of misinformation.
In internal messages, Fox News hosts were rudely dismissive of Trump himself, and on Jan. 6, Fox executives thought Trump too “dangerous” to allow on the Lou Dobbs show when the then president called in.
Dominion’s filings say that Fox executives pushed back when its own reporters attempted to challenge the election conspiracies.
In its legal brief, Fox lawyers argued that the network showed no “actual malice” because all the hosts who allowed false claims to be aired honestly believed there was a chance the election might have been stolen using Dominion’s machines.
DeSantis, a lawyer, may want to read through these depositions before he goes much further.
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