It's 'Fox NEWS': Shouldn't they abide by press laws and ethics?

Hours ago – on the day Dominion Voting Systems’ defamation lawsuit against Fox News was to start – the parties announced that they’d reached a settlement agreement, terms of which haven’t yet been disclosed.

 

This month a lawsuit against Fox News for defamation is scheduled to start April 17, when people will think about libel law, the difference between news and entertainment, and journalism ethics.

Meanwhile, apart from Dominion Voting System’s $1.6 billion lawsuit concerning Fox News airing allegations of the company’s complicity in election fraud, other recent Fox News hijinx is just as provocative, if not defamatory: Fox News host Tucker Carlson’s reimagining revisionist broadcast about the Jan. 6 insurrection as a crowd of “sightseers” merely walking through a public building. Using thousands of hours of video exclusively provided to him by GOP House Speaker Kevin McCarthy, the broadcast was so dishonest, its critics included Republicans in Washington.

“I thought it was an insurrection at that time,” said Sen. Mike Rounds (R-S.D.). “I still think it was an insurrection today.”

His Republican Senate colleague Thom Tillis of North Carolina agreed, commenting, “It’s bullshit. I was down there. When you see police barricades breached, when you see police officers assaulted, all of that — if you were just a tourist you should’ve probably lined up at the visitors’ center and came in on an orderly basis.”

In Delaware, Dominion has argued that Fox News damaged its reputation and business by knowingly broadcasting false claims such as the election-technology company rigged the 2020 election, and that it was founded in Venezuela to help president Hugo Chavez (who died 10 years ago). Dominion is based iin Denver.

On March 31, Judge Eric Davis denied Fox News’ motion to dismiss, and established a significant point about the story that Trump won the 2020 election. Davis wrote (in italics, with one word in all caps) “The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.” 

Fox News argued that the false statements weren’t defamatory because they were opinions. (Under libel case law, opinion writing such as columns are protected for expressing opinions, but there’s little protection for publishing something false as a statement of fact.) But in Davis’ decision, he called out 20 times when lies were stated as facts and other occasions where deliberately excluded material changed the meaning of what was presented. 

 

                                                                        Ethics and libel

Although different newsrooms have variations on ethical guidelines, the standard is the Society of Professional Journalists’ Code of Ethics, which has four elements: Seek truth and report it; minimize harm, act independently, and be accountable and transparent.

There also are distinctions between general-audience publications and those serving targeted audiences. In central Illinois, for instance, the Traveler Weekly serves the African-American community, so its contents reflect that mission – producing material that other media don’t. Likewise, the Labor Paper serves working people in general and unions in particular. Owned by the Building Trades, the Labor Paper offers news and perspectives that other media don’t, or tries to balance a more employer-focused, “Chamber of Commerce” or upper-class point of view like Peoria’s Inter Business Issues magazine, which evolved into the current Peoria magazine, now owned by WTVP-TV 47.

A libel claim of defamation – a false and unprivileged statement of fact harmful to a reputation and published because of negligence or malice – addresses ethical issues by saying truth wasn’t reported, that harm resulted, that the consequences may have derived from a lack of independence, and is a way to hold a party accountable.

In this country, libel law has valued truth over the negative impact of material since before the American Revolution. (Provable truth is a key defense to accusations of libel.

The First Amendment in 1791 added freedom of the press, and the U.S. Supreme Court in 1964 bolstered protections with the landmark New York Times v. Sullivan, which ruled that plaintiffs who are public figures must prove “actual malice” – that defendants acted “with knowledge that it ws false or with reckless disregard of whether it was false or not.”

That unanimous decision held that the First Amendment must permit aggressive reporting, tough commentary and honest errors.

Fox News lawyers seem to say the network just cranks out slop Trump allies create and its viewers want, whether news hosts feature Mike Lindell’s wild conspiracies or Carlson’s slanted take on Jan. 6.

“That, arguably, is a defensible strategy if you’re McDonald’s, but not if you claim to be a journalistic enterprise,” said Kyle Pope of Columbia Journalism Review. “How can someone be so reckless in his falsehoods, while still clinging, self-righteously, to his place in the journalistic church?”

Dominion attorney Rodney Smolla rejected Fox News’ claim that it shouldn’t be responsible for reporting what Trump supporters were saying.

“If you repeat or publish a defamatory statement from someone else, you adopt it as your own,” Smolla said.

(Incidentally, “libel” defers to published statements that may be damaging; “liable” is an adjective modifying who’s responsible for something, like a past-due bill, or a verb meaning likely, such as “the Cubs are liable to finish behind the Brewers.” Also, libel is written defamation; spoken defamation is “slander.”)

Further, as Dominion lawyers acquired material pertaining to the case, disclosures revealed private comments showing doubts about the claim the election was stolen. Beside Carlson, network news anchor Maria Bartiromo, and Fox News’ Sean Hannity, and Laura Ingraham, and executives all communicated that the people they featured on their programs were not making verifiable claims. In fact, in several messages, Fox News people showed less concern about the truthfulness of the “Big Lie” than fear of losing viewers to other conservative networks such as Newsmax and One America News – both of which have “news” in their names, it must be noted, despite journalistic standards as bad or worse than Dominion says Fox demonstrates.

When Fox News’ Jacqui Heinrich fact-checked the stolen-election claims, she wrote, “There is no evidence that any voting system deleted or lost votes, changed votes or was in any way compromised,” and Carlson asked that she be fired. Fox News CEO Suzanne Scott requested that such fact-checking be stopped because it was “bad for business.”

A defamation-law expert told the Washington Post the court filings seem to show misplaced priorities.

“The picture so far shows deep involvement of people responsible for the editorial process who were more concerned about the opinion of certain politicians than the truth,” said David Logan, a professor at Roger Williams School of Law in Bristol, R.I.

 

                                                                        What’s news?

Despite Fox News literally having NEWS in its name, its defenders seem to imply that the network doesn’t air news, but entertainment (some call it “anger-tainment” since its contents are intended to provoke outrage). Some say it’s just show business despite being called news. But would it be acceptable for someone pretending to be a doctor or plumber to get away with a botched treatment or repair? They’d be liable for their action.

Entertainment masquerading as news isn’t exactly illegal, though it sure seems unethical. The question is: Since they say they’re Fox News, will they be accountable for possibly defamatory material like other news enterprises would be?

Unless the parties reach an out-of-court settlement, it’s up to a jury to decide whether Fox acted with actual malice or reckless disregard for the truth – that Fox News anchors and hosts knew they were presenting falsehoods. “Malice” need not mean physically threatening, of course. Fox News arguably has repeatedly shown preference for Trump, both on the air and behind the scenes. Fox News producer Abby Grossberg recently sued Fox News, saying that she was pressured to give false testimony about the Dominion case in pre-trial proceedings. And Fox News owner Rupert Murdoch gave commercials for Joe Biden to Trump son-in-law Jared Kushner before they aired, and Murdoch reportedly offered strategy to the Trump campaign before Trump debated Biden.

To win, Dominion must convince jurors that Fox employees acted with actual malice and that the company sustained damages from the defamation.

Regardless of the lawsuit’s outcome, it’s already shown Fox News’ regard for real journalism, for ethics, for the public and, ultimately, for their own audience, and their emphasis of profits over truth is reminiscent of the comment about modern journalism by Sir Harold Evans, the late British editor: “The challenge is not to stay in business; it is to stay in journalism.”