Saturday, February 18, 2023

The Fox guarding the henhouse

 I used to be a Fox News watcher. The conservative outlet was my preferred choice for television news, especially after Glenn Beck and his whiteboard left CNN. Back in the old days, Fox claimed to present “fair and balanced” coverage. But then something happened.

I can’t point to one single event that made me realize that the character of the network had changed. Instead, as with the slow deterioration of the Republican Party, Fox News seemed to be gradually and thoroughly corrupted by its association with Donald Trump. Fox was probably never as fair and balanced as it claimed, but during the Trump years, the network abandoned any pretense of impartiality and objectivity to become a cheering section for The Former Guy.

Photo by Rubaitul Azad on Unsplash

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It was during this period that some of my favorite Fox personalities, like Shepard Smith and Chris Wallace, jumped ship or were forced out. Although some good people remain (Brett Baier, who I once flew, for example), the exodus of serious journalists from Fox was reminiscent of Beck’s departure from CNN on grounds of ideological differences.

The departures further changed the character of Fox, leaving the network as more of an opinion-driven arm of the GOP than a real news organization. Both CNN and Fox have always included both objective news and opinion shows, but Fox seems to have made a decision to tell its Republican viewers only what they wanted to hear.

While many people on the right mistrust CNN and accuse it (and all mainstream media) of being the PR wing of the Democratic Party, CNN has attempted to reach out to conservative viewers where Fox News and other right-wing outlets like Newsmax seem content to double down on their market niche. I don’t think Fox has any interest in attracting liberal or moderate viewers.

The shift became apparent in 2020 with the network’s post-election coverage as well as its reporting on the COVID-19 pandemic and vaccine rollout. While the fearmongering about masks and vaccines likely costs many lives, it is the election coverage that has landed the network in hot legal water.

Many of the network’s personalities went on the air with conspiracy theories about voting machines, and now Fox is being sued for defamation by Dominion and Smartmatic, two companies that make voting machines and that were specifically mentioned on Fox. This week a court let the lawsuit against Fox proceed.

And that’s not all.

In a court filing that became public last week, Dominion asked for a summary judgment in the case. This is essentially a request to bypass the trial and jury and have the judge make a ruling based on the evidence presented in other filings so far. Summary judgments are only likely when one side’s behavior is egregious and indefensible.

In the filing (full version available here), internal communications from Fox News personalities, executives, and other employees make it plain that Fox knew the stories that it was airing about massive voter fraud and hacked voting machines were false when it aired them. The words “nuts” and “crazy” were frequently used to describe the allegations and the people who made them, yet the allegations continued to air and conspiracy mongers like Trump lawyer Sidney Powell continued to appear on Fox.

For her part, Powell’s lawyers have admitted that the claims she made on Fox and other outlets were false, saying in her defense in her own defamation lawsuit last year, “No reasonable person would conclude that the statements were truly statements of fact.”

It was all just political theater, and the memos and emails obtained during discovery make it clear that Fox knew it was all theater. The company was apparently more frightened of criticism by My Pillow magnate Mike Lindell than of defamation lawsuits.

And with good reason. Defamation lawsuits are notoriously hard to win. Under legal precedent, it isn’t enough that someone airs injurious lies, but the evidence has to meet the “actual malice” standard. This means that the false statement has to be made with “reckless disregard of whether it was false or not.” It isn’t clear yet whether a court and jury will say Fox met this standard, but the judge who allowed the case to proceed at thinks it is at least possible.

In this case, Fox’s behavior seems, at least to this nonlawyer, to meet not only the actual malice standard but a number of other requirements that pertain to defamation as well. These include knowingly and publicly communicating false information to Fox’s viewers. The cases may hinge on whether Dominion and Smartmatic can prove that Fox’s airing of the conspiracy theories resulted in actual damages that can be compensated or punished.

Defamation has to be balanced with Fox’s First Amendment rights. The outlet has a right to free speech, even false speech, but it does not have the right to lie about people and companies with impunity. There is a limit.

I want to be clear that, in the pending cases, the First Amendment is not at issue. The First Amendment protects Americans from government censorship of speech and that is not what is happening here. The government did not prevent Fox from airing the false reports. Nor is the government now punishing Fox for what its hosts said.

Instead, what is happening is that Fox News is being called to account for telling lies about private companies by the very same companies that it defamed. This is occurring through a civil law process with a jury as the ultimate arbiter (unless the judge grants Dominion’s request for a summary judgment). The government is not involved beyond the legal system acting as a referee.

These cases aren’t about free speech, they are about lying for profit. To a certain extent, lying for profit is indeed protected speech, but lies that damage the reputation and business of innocent people and companies can cross the line. That seems to be the case here.

I was once a Fox News fan, but given the blatant lies that so many of the network’s employees pushed, lies that directly fueled the insurrection and brought the United States to the brink of civil war, I hope that the jury finds against the disgraced network. This trial should end with Dominion owning Fox News. Literally. (And I mean that in the traditional sense of the word “literally,” not the new redefined definition.)

At the very least, the scandal should wake people up to the fact that the opinion shows on Fox are not real news. These shows are feeding people propaganda and deepening the divides that are tearing our country apart. And they know exactly what they are doing. Sadly, this also implies that Fox News has a pretty low opinion of its viewers.

As for me, I don’t watch much television news anymore unless it’s a rapidly unfolding story. I prefer to get my news from textual sources where I can get more details and nuance than from a three-minute spot or a 10-second soundbite.

I’ve come to hate conspiracy theories with a passion. As far back as 2011, I wrote about how to become a more discerning user of the internet and many of the same rules apply to television and print sources. Treat opinion articles and shows skeptically and remember that extraordinary claims demand extraordinary evidence.

Don’t just believe what your itching ears want to hear.

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PENCE DEFENSE: In another legal story, former Vice President Mike Pence is fighting a subpoena from the Department of Justice to testify before Special Counsel Jack Smith’s January 6 investigation. The interesting thing here is that Pence isn’t basing his refusal on executive privilege but on the speech and debate clause. This is a novel, but not baseless legal theory centered on Pence’s secondary role as president of the Senate.

I’m skeptical that the strategy will work because the clause itself contains an exception for “Treason, Felony and Breach of the Peace” that should apply directly to the January 6 riot and insurrection. As with the limits on executive privilege, political immunity should not be extended to cover criminal wrongdoing. Pence may not have taken part in the January 6 conspiracy, but he almost certainly had knowledge of what was going on.

The fact that Pence is fighting the subpoena is further evidence to me of his misplaced loyalties. Three years after the insurrection, he is still defending Donald Trump when he should be helping to bring radical lawbreakers and coup plotters to justice. If I still had any doubts that Pence was unfit for higher office, this would dispel them.

Granted, it is almost impossible to confront Trump and have a career in the modern GOP, but that conundrum is one that is largely of Pence’s own making. The former VP needs to sit up and take his medicine.

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