CT Blue

Fox is once again defending a libel suit by claiming that no reasonable person could believe what they were hearing on its programs.

Erin Murphy, the lawyer, was defending Fox against a defamation lawsuit brought by Dominion Voting Systems in response to the network’s post-2020 election coverage. Dominion alleges that Fox knowingly and deliberately aired false information about the company’s voting machines and software, in a bid to win back viewers who were fleeing to right-wing competitor Newsmax.

Dominion claims that Fox attempted to draw those viewers in by indulging their incorrect belief that the 2020 election was rigged, a position held by former President Donald Trump and his lawyers. Private communications at Fox News revealed through the lawsuit show that on-air talent and top executives – including Fox Corp. chairman Rupert Murdoch and his son and Fox Corp. CEO Lachlan Murdoch– knew that Trump’s conspiracy theories about the hacked election were false, but aired them anyway.

Much of Murphy’s defense of Fox rested on her argument that a “reasonable viewer” could discern that Maria Bartiromo, Lou Dobbs, and others at the network who provided a platform for Trump’s lawyers were merely covering newsworthy allegations, rather than presenting the false claims as statements of fact.

But Murphy’s defense of an interview that top star Tucker Carlson conducted with Lindell took a different tack. Lindell’s appearance on Carlson’s January 26, 2021, program, she argued, was so incoherent that Fox News’ audience would be confused enough to find him inherently unreliable.

A “reasonable viewer would be puzzled on anything he is talking about,” Murphy told Judge Eric Davis, who is presiding over the case.

Fox actually got a cases involving Tucker Carlson thrown out by arguing that no reasonable person would believe that when Tucker Carlson states something as fact that it is fact, fact.

While I don’t pretend to know or remember all of the elements of a libel claim, I can see how the “reasonable person” (usually phased as “reasonable man”, of which there are fewer and fewer nowadays) standard made sense in the long gone days when those elements were first developed.

While I don’t hold out any hope it will happen, it would appear the time is ripe for revisiting those standards, because it is the unreasonable person from whom the libeled person has the most to fear. For while the reasonable person may think twice about what Tucker, Maria or the rest of them may say or implicitly endorse, the unreasonable person eats it up, and is quite likely to direct his or her ire against the person libeled. The unreasonable person is, after all, Fox’s target audience, especially after Fox had the temerity to tell the truth (for once) about the Arizona election results.

How many of the individuals exposed to baseless attacks, such as the poll workers in Georgia or the Newtown parents here in Connecticut, have been subjected to death threats and other forms of harassment committed for the most part by what we must conclude are unreasonable people?

Fox made an intentional decision to stoke the baseless rage of unreasonable people by amplifying and implicitly endorsing the views of people Fox knew were lying. There should be a remedy for that. There would be, if the “liberal media” were doing it, but don’t hold your breath waiting for the Supreme Court to hold Fox and other lying right wing media accountable.