I’m actually somewhat surprised at this. Even farther right “news” site Newsmax has joined Fox in walking back claims against Smartmatic and Dominion, both of which manufacture voting machines about which the whackjobs have spun no end of conspiracy theories.
When these “news” sites are forced to air there retractions it drives the whackjobs wild, since, among other things, it contradicts the stuff clogging their Facebook feeds.
I touched on libel law in another context in a recent post, but now’s a good time to suggest that it might make a lot of sense for other victims of these propaganda outlets to follow the lead of Smartmatic and Dominion.
Smartmatic and Dominion had a bit of an advantage over some potential plaintiffs, because they are arguably not “public figures” and would not have to prove “actual malice” to prevail in a libel action. But lets take a look at the definition of actual malice:
Actual malice is a statement made with a reckless disregard for truth. Actual malice can be established through circumstantial evidence. High degree of awareness of falsity is required to constitute actual malice. If the plaintiff is a public figure, the plaintiff should prove by convincing evidence that the defendant published a defamatory statement with actual malice, i.e. with “knowledge that it was false or with reckless disregard of whether it was false or not.” If the plaintiff is unable to prove actual malice, then the plaintiff cannot recover. Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991)
Back in the day, before the advent of Fox and the internet, it would ordinarily have been next to impossible to prove actual malice in a libel action against a mainstream news outlet, especially if the plaintiff was a public figure. A news story might contain a falsehood about that public figure, but the odds were high that it was the result of something that at least came close to an honest mistake.
Times have changed. The Dominion and Smartmatic situations are just isolated examples of the type of misinformation that Fox and its even slimier ilk embrace with the full knowledge that they lack a shred of evidence for their assertions. So far as I know, they don’t even dress it up by reporting that “some say (enter libelous statement here), they simply assert lies as fact.
The victims of this sort of thing should follow the Dominion/Smartmatic example. Fox and its ilk would face a dilemma. They would have to either 1) continue to run retractions, thus outraging their easily deluded base, or 2) defend the lawsuits with increasingly slim odds of winning. I have never handled one of these cases, but I would hazard a guess that one could buttress one’s case by showing that the defendant publishes material with “reckless disregard of whether it was false or not” on a regular basis.
It is unclear if the Supreme Court would come to the rescue. After all, if they rule that right wing outlets have an unfettered right to lie without consequences (something the sainted Founding Fathers never intended, but something that Fox has claimed in the past), they would have to extend the same rights to the left, or they’d have to do some really fancy legal gymnastics to make it a right wing only right.
Sigh! After writing all this, I came upon this, which shows that the courts are ready, willing and able to turn those somersaults:
A federal judge on Thursday dismissed a lawsuit against Fox News after lawyers for the network argued that no “reasonable viewer” takes the primetime host Tucker Carlson seriously, a new court filing said.
The case was brought by the former Playboy model Karen McDougal, who said Carlson defamed her on his show, “Tucker Carlson Tonight,” by saying she extorted President Donald Trump “out of approximately $150,000 in exchange for her silence about an alleged affair,” the filing said.
Fox News asked the judge to toss out McDougal’s case by arguing that “Carlson’s statements were not statements of fact and that she failed adequately to allege actual malice.”
McDougal said two of Carlson’s statements during the episode on December 10, 2018, were defamatory:
Carlson’s claim that McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money.”
Carlson’s claim that McDougal’s actions amounted to “a classic case of extortion.” But Fox News argued that Carlson “cannot be understood to have been stating facts, but instead that he was delivering an opinion using hyperbole for effect,” the ruling said.
It added that Fox News “submits that the use of that word or an accusation of extortion, absent more, is simply ‘loose, figurative, or hyperbolic language’ that does not give rise to a defamation claim.”
US District Judge Mary Kay Vyskocil agreed with Fox’s premise, adding that the network “persuasively argues” that “given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.”
“This ‘general tenor’ of the show should then inform a viewer that he is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary,’” the ruling said.
Wow. Well, I refuse, at least partly, to agree that this totally undercuts my premise, though it does seem that at least one judge feels the right has a license to lie that it is unlikely would be extended to a lefty. After all, the “general tenor” of Rachel’s show is such that it would not inform the viewer that it is total bullshit. And wherever did the judge get the idea that Carlson has “reasonable viewer[s]”? One would think that the court would at least require a disclaimer from Tucker to the extent that his viewers should remember that they should not take anything he says seriously.
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