Media wants Dominion to beat Fox News, but it could blow up in their face
There are two things 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 Dominion Voting’s libel case against Fox News.
I’ve been pretty hard on Fox News in this whole thing because I truly believe they’re more guilty of focusing on the public than on the truth. And the revelations we saw in the Dominion case confirm that. They were incredibly worried about their audiences leaving and heading to Newsmax or One American News, which led to many of their post-2020 election content decisions. The text messages and other communications exposed in this case show that the biggest personalities knew what their guests were peddling was nonsense, but they kept getting those guests on the air.
However, my frustration with Fox News is not the same as wanting to see them lose this case. And, in fact, there is reason to believe that the “explosive” texts are not as much a guaranteed win for Dominion as the media would like you to think. A $1.6 billion libel judgment against the company would have pretty serious consequences for journalism as a whole.
Former U.S. Attorney General Bill Barr says as much in an editorial written for the the wall street journal Friday.
Emotions seem to have gotten the better of the mainstream media’s judgment. The theory advanced by Dominion is deeply dangerous for the media industry as a whole. The memories are very short and the imagination very limited if the left thinks only Fox would be vulnerable to legal action in a world where libel liability could be incurred for the mere reporting of allegations made by others. Does anyone remember the endless bogus claims of “Russian collusion” that dominated news of the 2016 presidential election across much of the Trump administration; or the bogus “Iraqgate” claims that George HW Bush was bombarded with during his 1992 re-election campaign; or the lurid allegations, which were the subject of cable media coverage, that Michael Avenatti made during the Senate confirmation of Judge Brett Kavanaugh?
The press can report on these matters without incurring liability for defamation, as existing laws give them wide latitude to do so in order to encourage unfettered speech on matters of public interest. The scope of this legal protection is well established, and Fox has done well within it for three reasons. First, it is not defamatory for journalists to report newsworthy allegations made by others, even when those allegations turn out to be false. As long as claims are presented only as allegations and are not asserted to be true, legal responsibility for any defamatory content rests with those making the allegations, not the media outlet. If you look at the relevant statements from the Fox hosts in context, it’s clear that 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 denounce all the time. But this is also partly due to the fact that the information available at that time is not complete or is based on incorrect data. But when this incorrect or incomplete information is released, it can have a negative impact on the people who are part of the story.
As Barr mentions, there are laws in place that protect journalists and the media in this case. But a victory for Dominion in this case could call those laws into question.
Now, where I might disagree with Barr is when he assumes the Fox hosts were on-air neutral regarding the “stolen election” allegations. I am not convinced that they were, and I recall the confessions they made about securing the hearing. Clearly they had to give credit to the plot in order to keep viewers happy and with the network.
Barr mentions two other reasons why Fox News is not guilty of defamation:
- “Defamation only applies to misrepresentations of fact, not statements of opinion.”
- “It has long been argued that First Amendment considerations necessitate giving media speakers more ‘breathing room’ to protect unintentional misrepresentations made when reporting on matters of serious public interest or the actions of key players in these controversies.”
Finding Fox News guilty of defamation would make it much more likely that other news outlets and hosts would be sued in the future because of the precedent it would set. I’m not sure the media encouraging it would be desirable, but they’re driven more by their emotional response to Fox News (mainly jealousy over their continued ratings successes) than by journalistic principles.
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