There are two things that the mainstream media is salivating over these days. The first is Manhattan DA Alvin Bragg and his (now collapsing) case against Donald Trump in the whole Stormy Daniels affair. The second is the Dominion Voting defamation case against Fox News.
I have been pretty harsh on Fox News in the whole affair because I truly believe they are more guilty of focusing on audience than truth. And the revelations we’ve seen from the Dominion case back that up. They were incredibly worried about their audience leaving and heading to Newsmax or One American News, which led to a lot of their post-2020 election content decisions. The text messages and other communications unveiled in this case show that the biggest personalities knew that what their guests were peddling was nonsense, but they kept bringing those guests on the air.
However, my frustration with Fox News isn’t the same as wanting to see them lose this case. And, in fact, there is reason to believe the “explosive” texts aren’t as much of a guaranteed win for Dominion as the media would love for you to think they are. A $1.6 billion defamation judgment against the company would have some pretty serious consequences for journalism as a whole.
Former U.S. attorney general Bill Barr said as much in an op-ed penned for the Wall Street Journal on Friday.
Emotions seem to have gotten the better of the mainstream media’s judgment. The theory advanced by Dominion is profoundly dangerous to the media industry as whole. Memories are very short and imaginations very limited if the left thinks that only Fox would be vulnerable to lawsuits in a world where defamation liability could be incurred for simply reporting allegations made by others. Does anyone remember the endless false claims of “Russian collusion” that dominated the news from the 2016 presidential election through most of the Trump administration; or the false “Iraqgate” claims with which George H.W. Bush was bombarded during his 1992 re-election campaign; or the lurid allegations, which were given wall-to-wall cable news coverage, that Michael Avenatti made during the Senate confirmation of Justice Brett Kavanaugh?
The press can report on these matters without incurring liability for defamation because existing laws give them wide latitude to do so to encourage uninhibited discourse on matters of public concern. The scope of this legal protection is well-settled, and Fox acted well within it for three reasons. First, it isn’t defamatory for journalists to report on newsworthy allegations made by others, even when those allegations turn out to be false. As long as claims are presented only as allegations and not asserted to be true, legal responsibility for any defamatory content rests with those making the allegations, not the news outlet. If you examine the relevant statements by Fox hosts in context, it is clear the company was simply reporting the allegations, not reporting that those allegations were true.
The media makes mistakes all the time. Some of it is stupid partisan nonsense that we call them out for all the time. But some of it is also due to the fact that the information that’s out there at the time isn’t complete or is based on incorrect data. But when that faulty or incomplete information makes it to the air, it can have a negative impact on people who are part of the story.
As Barr mentions, there are laws in place that protect journalists and outlets in that case. But a win for Dominion in this case could call those laws into question.
Now, where I might disagree with Barr is when he assumes that Fox hosts were neutral on the air regarding the “stolen election” claims. I am not convinced that they were, and I point back to the admissions they made about securing the audience. It’s clear that they needed to lend credence to the conspiracy in order to keep viewers happy and with the network.
Barr mentions two other reasons that Fox News isn’t guilty of defamation:
- “Defamation applies only to false statements of fact, not statements of opinion.”
- “It has long been held that First Amendment considerations require giving media speakers more “breathing space” for protecting unintentional false statements made when reporting on issues of serious public concern or on actions of key players in those controversies.”
Finding Fox News guilty of defamation would make it much more likely that other news outlets and hosts get sued in the future because of the precedent it would set. I’m not sure that the media cheering that on would be advisable, but they are guided more by their emotional response to Fox News (primarily jealousy over their continued ratings successes) than they are by journalistic principles.
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