February 18, 2023

Litigating the Limits of Lying

by Hal Gershowitz

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Dominion Voting Systems vs. Fox News

I do not know, nor does anyone else know, how the Dominion Voting Systems suit against Fox News will turn out. But it seems we’ll know soon enough as the voting machine company’s case against Fox News progresses, surviving Fox’s repeated attempts to dismiss the case. The defamation case is scheduled for court on April 17th. It will be heard by Delaware Superior Court Judge Eric M. Davis, who, thus far, has not been sympathetic to defense pleas for summary dismissal based on the First Amendment.

I’m not a lawyer, and frankly, I don’t remember much about a Law of the Press class I took as an elective when I was a senior at the University of Maryland many decades ago. I do, however, remember the warning that reckless disregard of the truth was considered a no-no that journalists ignored at their peril. I presume it still is.

In what promises to be a landmark defamation case, Dominion Voting Systems Inc. is aggressively litigating its defamation case against Fox News. Depositions referencing internal messages made by Fox officials and by Fox commentators to one another and others seem to acknowledge that they knew they were broadcasting nonsense about supposed fraud in the 2020 Presidential election. It is a safe bet that neither Fox News nor its commentators will argue that they believed the 2016 election was stolen from then-President Donald Trump despite the network’s bloviators constantly inferring that it was.

Fox’s talking heads hyperventilated their election fraud narratives while privately acknowledging to one another that the fraud claims they were parroting were based on bull hockey. The rigid standard in a defamation suit brought against high-profile public figures or institutions is that there must be a reckless disregard for the truth for a case to succeed. We’ll see what a court of law decides, but the issue appears to be a no-brainer in the court of public opinion.

Bret Baier, Fox’s chief political anchor, commenting to a friend, “There is no evidence of fraud. None. Allegations – stories. Twitter. Bullshit.”

Fox Commentator Laura Ingraham commenting on Trump campaign attorney Sidney Powell—”a bit nuts.”

Lou Dobbs, the former Fox Business commentator, acknowledges he was aware of no evidence that Dominion rigged the election.

Former Trump attorney Sidney Powell addressed her allegations of fraud, “No reasonable person would conclude that the statements were true statements of fact.” 

Even Tucker Carlson complained about Sidney Powell’s lies, writing to fellow Fox host Laura Ingraham that Powell “had no evidence of fraud.”  

The fly in the ointment for the network’s bloviators was the Fox News Election Decision Desk. It is widely regarded as the best in the business. It has been given free rein to call elections as its analysis of the returns dictates without regard to what the network’s commentators are reporting.

The Fox Decision Desk was the first to call Arizona for Biden. The bloviators went ballistic as they had in the past when the network’s Decision Desk (correctly) called an election contrary to what the on-camera commentators were suggesting.

All hell broke loose at Fox when Arizona was correctly called for Biden. However, Arnon Mishkin, director of the Fox News Decision Desk, stuck to his guns. “We’re four standard deviations from being wrong,” Mishkin said. “And, I’m sorry, we’re not wrong in this particular case.” And he was correct, Trump, Bannon, Stone, Powell, Giuliani, and Kari Lake notwithstanding.

Particularly unnerving were the Fox commentators’ statements that suggested that reporting or commenting on what their audience craved to hear was more important than reporting what the facts actually revealed about the 2020 election.

Because defamation cases are so hard to prosecute against public personalities, media personalities have often become brazen, even reckless, in pushing the boundaries of acceptable commentary or reporting. That is not so surprising. Several messages by Fox personalities to one another that seem to confirm that they knew they were participating in an election fraud farce are both surprising and, let’s just say it, quite damning. 

This is very serious stuff. At least to this writer, it appears that commentary by leading Fox News personalities has been deliberately inconsistent with what they knew to be true. They may have unintentionally contributed to a long overdue rethinking of the legal rules that have allowed unreasonably abusive and destructive commentary against public personalities to have free reign with little or no recourse by those who have been maligned. 

Particularly offensive are the statements that suggest that reporting or commenting on what their audience craved to hear was more important than reporting what the facts actually revealed about the 2020 election.

Many Fox viewers, it seems, were loyal to the Fox narrative but not so much to Fox itself. As soon as the Fox Decision Desk called the 2016 election for Biden, viewers left Fox in droves and turned to the newer and smaller right-wing competitor, Newsmax, where they could hear what they wanted to hear.

The abandonment of Fox by many of the Trump crowd freaked out Fox commentators. Hannity texted his fellow on-air colleagues, Tucker Carlson and Laura Ingraham, that the Arizona election call “destroyed a brand that took 25 years to build, and the damage is incalculable.” Carlson referred to the Fox election decision desk’s timely and correct call as “vandalism.”

But at the end of the day, it was simply the correct call

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