"Fox News: They Report, and a Jury Decides"

A sharp line from David Lat (Original Jurisdiction), whether or not you agree with the libel lawsuits against Fox News. (A Google search suggests Lat indeed coined this.)

Comments

[Dr. Ed 2]

IF we are to honor the principle of NY Times v. Sullivan, these lawsuits are quite scary because the principle should be that a large corporation holding public contracts has no more protections than Sullivan (a hick sheriff(?) in the rural south) did. (Remember that corporations are people...)

The only distinction here is that it is a corporation as opposed to an elected official — and both are in the public light so much as there was an inherent public good in letting the NYT* criticize Sullivan even though they admittedly got their facts wrong (e.g. the number of times MLK2 had been arrested, etc), there is the same public good in letting FOX News (the NYT of today) criticize the voting machine company, even *if* they have their facts wrong, and I don’t think anyone knows that at this point.

NB1: It’s not if the machines were rigged but if the COULD BE rigged. Anything that involves the CCP having access to data makes me suspicious…

NB2: It actually was an ad placed by the NAACP. I never really understood why it was the NYT being sued in the first place as they essentially were the common carrier of that era — they printed the NAACP’s ad, which (I presume) was attributed to the NAACP.

Hence had the NAACP stood outside the NYT’s office with a bullhorn and spoken the entire ad, the NYT would have been in the clear as it was merely reporting what the NAACP had said, as long as they made it clear that they were merely reporting what the NAACP had said.

[Noscitur a sociis]

letting FOX News (the NYT of today) criticize the voting machine company, even *if* they have their facts wrong, and I don’t think anyone knows that at this point.

Everyone knows that the facts being put out by Fox were wrong—including, it turns out, the very people at Fox who were doing it.

[John Rohan]

They weren't put out by Fox, that's the point. They were put out by certain guests during interviews on Fox News.

[Dr. Ed 2]

Much like the NAACP bought ads in the NYT....

Today, they could have been interviewed on Fox News...

[Bored Lawyer]

If that's the case, it will certainly be much harder to show actual malice.

[David Nieporent]

No; this isn't about spontaneous man-on-the-street interviews. These were planned segments where people like Sidney Powell and Rudy Giuliani were scheduled to come on and talk about their conspiracy theories, even though the hosts already knew those theories were lies.

Also, Fox continued to rebroadcast the interviews.

[Stephen Lathrop]

They weren’t put out by Fox, that’s the point. They were put out by certain guests during interviews on Fox News.

Rohan, who know what a Section 230 interpretation of that would be?

But the customary theory of libel makes Fox liable for whatever those guests said and Fox published. A Fox broadcast is without doubt Fox's editorial product. Fox is a publisher. Evidence looks overwhelming, even with regard to actual malice. Every Fox person associated with the stories seems now to be on record as knowing the election stories were false.

[Bored Lawyer]

What makes you think that Fox will be unable to invoke NY Times v. Sullivan?

[Dr. Ed 2]

Because people are taking this potential legal liability seriously.

If NYT v. Sullivan could be invoked, couldn't Fox News simply move for summary judgement?

[Bored Lawyer]

Maybe. There might be an issue of fact as to whether they exhibited actual malice. And AFAIK, they are still in discovery, so they are entitled to look for evidence of actual malice.

[Kenneth Almquist]

The presiding judge ruled that Dominion is a limited purpose public figure, and that Dominion must demonstrate actual malice. Here is a link to the ruling:

https://courts.delaware.gov/Opinions/Download.aspx?id=343250

[mse326]

Do you know what Sullivan says? It doesn't say public figures can't sue for defamation and win, it says that it requires "actual malice" rather than mere negligence. People are taking seriously that there is actual malice due to the communitcations uncovered that show they knew, or at least believed, the claims were bogus

[David Nieporent]

If NYT v. Sullivan could be invoked, couldn’t Fox News simply move for summary judgement?

You apparently don't know what NYT v. Sullivan said. It didn't say that public figures couldn't sue for libel. It said that public figures needed to show actual malice if they wanted to sue for libel. (Actual malice is a term of art that means that the speaker knew the statements were false when it made them, or recklessly disregarded the likelihood of falsehood.) It seems likely that Dominion can show that, based on Fox's internal documents and deposition testimony of Fox people.

[Kenneth Almquist]

If a legitimate news organization reports on a public figure and gets some of its facts wrong, a libel suit against the news organization will probably fail, because what NYT v. Sullivan termed “actual malice” won't be present. The news organization was trying to get the facts right, and screwed up.

So, if Fox News were a legitimate news organization, there would be no reason to take this lawsuit serious. But according to the Dominion lawsuit, Fox didn't try to inform their audience about the election. Instead, they lied about it. People take this potential legal liability seriously because they don't think that Fox News is a legitimate news organization.

[Stephen Lathrop]

If a legitimate news organization reports on a public figure and gets some of its facts wrong, a libel suit against the news organization will probably fail, because what NYT v. Sullivan termed “actual malice” won’t be present.

That is incoherent. Actual malice has nothing to do with whether a news organization is, "legitimate," whatever that even means. You may be confused because well-established news organizations tend to do better than others at avoiding false and defamatory publications.

[Kenneth Almquist]

Yes, the legal question is whether “actual malice” is present. Dr. Ed 2 seemed to believe that this means that a public figure cannot win a libel suit against a news organization, and I believe that that belief is mostly correct. The reason is that news organizations, for the most part, don't engage in behavior that qualifies as “actual malice.”

Dr. Ed's position, expressed as a syllogism, is
1) Public figures generally cannot win libel lawsuits against (legitimate) news organizations.
2) Fox News is a legitimate news organization.
3) Dominion has a good chance of winning it's lawsuit against Fox.
*) Therefore, Dominion is not being classified as a public figure in this lawsuit.

This syllogism fails because premise 2 is false.

[Jaypd]

Are we seriously legitimizing people who don't think fox news is malicious utter nonsense? You can read all the stories that have come out about how none of them believed anything they were peddling. Just burning down America for a buck. Shame on you for treating the rabid trump supporters like they have anything legitimate to contribute.

[Noscitur a sociis]

Who are you talking to?

[Dr. Ed 2]

Are you honestly saying that the people who were running the NYT in the 1960s were any more altruistic? How many of them believed that “civil rights” stuff more than it sold newspapers?

So they, too, were “just burning down America for a buck” — particularly after MLK2 was murdered and the cities started burning.

And since when do we look at the motives of social progressives? Do you honestly think that the muckrakers were truly concerned about the stuff they were covering — or wanting to sell papers?

And for the ultimate example, let’s look at Upton Sinclair’s _Jungle_.

In case you don’t know, he fabricated most of that. Think logically here for a minute — WHY would Armor pay to have rotted beef shipped back from Europe when they could obtain fresh (live) beef for far less money? No, Armor would have told their European distributors to send the spoiled stuff to the dump as that would have been cheaper…

The large packers didn’t want to kill their customers because dead customers don’t buy more product, and they had capitol invested in their brand names. Now as to lead and nitrate poisoning, that was another issue -- although I don't think that anyone knew that much about either back then, and I remember seeing sodered soda cans in the 1960s, sodered ham containers (where they sealed the vacuum) in the 1990s.

The real problems were the small fly-by-night operators who didn’t care because they weren’t going to be there a month from now. Unlike Armor, they wouldn’t be findable…

But should we repeal the Federal Food & Drug Act because of this?

And why not?

And if what the Fox News folk are talking about were to be actually true — even if they were merely RINOs pandering for ratings — wouldn’t it be worthwhile to both know that and to address that?

Or do you want to see your side have an election stolen from YOU?

[Nige]

'And if what the Fox News folk are talking about were to be actually true — even if they were merely RINOs pandering for ratings — wouldn’t it be worthwhile to both know that and to address that?'

But it isn't true, and they knew it wasn't true. In fact I wonder if anyone really thought it was true, you ALL knew it was a lie, you'd have to be a cultist-level believer to think it was true.

[Dr. Ed 2]

Back in 1960, you had to be a cultist believer to think that a Black man was equal to a White man. And then.....

[mse326]

Do you know the difference between opinion and fact?

[David Nieporent]

I can assure you that he has absolutely no exposure to the concept of "facts."

[Dr. Ed 2]

In the 1930s, it was considered a FACT that Blacks were inferior -- look up the Eugenics Movement and Margaret Sanger.

[Sarcastr0]

You sure are galloping today.

There are documents that establish FOX management was knowingly letting lies get on the air. That is the issue.
You are all over the place trying to bring in collateral irrelevancies because you don’t like that arena.

This ain’t the Jungle, and it’s not eugenics either.

[Nige]

Yeah, if you're looking for the prominent racists of the 1930s in the US, you go straight to Sanger and Co.

[DavidTaylor]

This is a good place to start

https://pubmed.ncbi.nlm.nih.gov/3884362/

[Nige]

Not a cultist, but perhaps a radical. There's a difference between believing things that are true and claiming to believe a thing that is a lie.

[bernard11]

No. You didn't.

[Kazinski]

I certainly am not going to dispute that Fox News is stupid news for stupid people, but the problem is that MSNBC and CNN are just as bad.

It’s difficult to find any news on TV that isn’t an insult to my intelligence.

[The Margrave of Azilia]

There's still news on TV?

There's still TV?

[Sarcastr0]

This election denial lawsuit isn’t against CNN or MSNBC though, so maybe your equivalence will require a bit more work than general contempt.

[santamonica811]

Hmmm. I followed the link and could find no quote from Lat that was related to this issue. (I even searched for "jury" and 'decide' with zero results returned.)

But a nice hat-tip from him re your own personal First Amendment case...he did reference that in the link you provided. I'm clearly doing something wrong--but have no idea what that might be.

[ah....Clem]

I didn't see anything related to this issue either. I did find a screen where I could subscribe for like fifty bucks.

Very curious to hear from actual attorneys who know this stuff and can explain why or why not this case will likely be decided one way or another. But can't find that here.

[Bored Lawyer]

One thing any attorney would ask is, what are the plaintiff's damages? The plaintiff is a corporation, so it does not get hurt-feelings type damages. It has to show that its business has suffered as a result of the alleged defamation.
Has it? I don't know, but I would certainly want to see their proofs on that.

[David Nieporent]

It has alleged that it lost business, and that seems pretty plausible. I would doubt that jurisdictions run by MAGA folks are eager to enter into contracts with Dominion.

[bernard11]

It seems wildly unlikely that Dominion did not suffer serious loss of business.

Obviously, MAGA jurisdictions are not going to be eager to use them, and I suspect that some non-MAGA ones would just as soon avoid the controversy.

What is amazing here is the utter stupidity of the Dr. Ed types trying to defend Fox.

[Bored Lawyer]

It is certainly plausible that it lost business. But plausible does not get you past summary judgment, let alone trial.
They have to show that a jurisdiction either dropped them, or was going to use them and then declined because of the Fox broadcasts. That they are unpopular in a jurisdiction that never used them and had no plans to does not get them damages. So they have a high hurdle to show damages. Not impossible, but were I Fox's counsel, I would scrutinize this area thoroughly.
There may also be a causation issue -- Fox was not the only one to broadcast these statements, so even if they lost business, who says it was because of Fox?
Again, not impossible, but a lot harder to prove than saying it's plausible on a blog.

[Kenneth Almquist]

In their motion for a summary judgement, Dominion takes the position that all of the statements at issue were libel per se. If the judge agrees, then Dominion can win the case without showing actual damages.

(Dominion's motion for summary judgement was filed under seal on Jan. 17, 2023. A redacted version was filed on Feb. 16 which is why we are just hearing about it now. Fox's reply to the motion, filed on Feb. 8, has not been made public even in redacted form.)

[Bored Lawyer]

I think some jurisdictions allow corporations to bring defamation per se claims, and some do not. I guess that Delaware is one that does.

[The Margrave of Azilia]

So, in general, what *is* the law about corporations being able to sue for defamation? Any difference from natural persons?

(I can't believe I just typed "natural persons" to mean human beings - you know, natural rather than artificial persons)

[Bored Lawyer]

I am not a defamation lawyer, but my understanding is that the main difference is the kind of damages you get. Natural persons get hurt-feelings reputational type damages. A person's social standing can be hurt by defamation, and he or she can get damages for that.
Not so a corporation, that has to show some monetary loss, such as loss of business.

[arch1]

What is sharp about the quoted line? For that matter, what does it even mean? (I might be less clueless if I were a lawyer or if I could find the context, but in a brief search I couldn't find any references to that line that don't trace back to the present blog entry - and I'm too old for law school).

PS. I did see on Lat's blog an interesting May 2021 interview with Fox's top lawyer Viet Dinh, who spoke quite positively in support of not only the news reporters at Fox News, but also its opinion hosts. I wonder if Dinh is still so positive now.

[Roger S]

The most damning message was Tucker Carlsen wanting to fire the woman who said that the 2020 election was the most secure in history. I don't see how this quote helps Dominion's lawsuit.

[Kenneth Almquist]

I assume you are referring to this tweet?

https://twitter.com/JacquiHeinrich/status/1327354119439470592

You may have missed the fact that Jacqui Heinrich is responding to the claim that Dominion switched and deleted votes. Heinrich quotes CISI, a division of the Department of Homeland Security, as follows: “The November 3rd election was the most secure in American history... There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

To win its lawsuit, Dominion has to show that Fox knew that its statements about Dominion were false, or that it made them with reckless disregard to the truth. In addition, Fox News is attempting a “neutral reporting privilege” defense. (The judge hasn't ruled on whether the neutral reporting privilege defense is available under New York law.)

Carlson wanting a Fox News reporter fired for merely relaying what CISI said is a pretty clear indication that he doesn't think Fox should tell the truth about the election. Carlson has a limited amount of time each night and could perhaps make a judgement call that the CISI statement wasn't important enough to cover on his show. But the fact that he thought that someone else should be fired for sharing it makes clear that he doesn't want the Fox audience to know about it. Fox may advertise “we report, you decide,” but Carlson doesn't want Fox News viewers to have the facts required to decide. This helps Dominion show that Carlson doesn't care about the truth, and that he was not engaging in “neutral reporting.”

[David Nieporent]

You omit the fact that makes it even worse: he wanted her fired because it was hurting their stock price.

[Commenter_XY]

The line was not just sharp, it was absolutely hilarious! 🙂