Fox hypocrisy
Case N21C-03-257 EMD goes to trial before a jury in Delaware on Monday, and it’s shaping up as one of the most significant tests of media freedom and responsibility in decades. At its heart lies Donald Trump’s claim that the 2020 presidential election was stolen from him, in part because voting machines were programmed to switch votes to his Democratic opponent, President Joe Biden.
Millions of Americans still believe him, despite dozens of court rulings that said there was no evidence for such a claim. Indeed, the judge in this case, Eric Davis of Delaware Superior Court, has already ruled the claims were false and are not to be argued at trial.
The central issue is whether the largest American cable news network, Fox News, deliberately misled its viewers with Trump’s Big Lie, knowing full well that it was, in fact, a lie. That’s the standard for defamation in the United States. To win, the plaintiff, Dominion Voting Systems, must prove that Fox was guilty of actual malice; in other words, that it knew what it was broadcasting was false, or else that it was guilty of “reckless disregard for the truth.”
That is normally a very high bar to jump over—deliberately so, since it was meant to free the media to report on the activities of important public figures like Trump. But freedom comes with responsibility and, so far at least, the case has turned into an ethical and journalistic disaster for Fox News.
Many legal experts are questioning why the network didn’t settle out of court before its reputation was left in tatters by Dominion’s strategic pre-trial disclosure of scores of damaging emails that it forced Fox News to give over, showing its celebrities privately mocking guests that they repeatedly interviewed uncritically on air.
On the eve of trial, it got worse. Dominion’s lawyers demonstrated that Fox had deliberately held back damaging information, and misrepresented other facts, forcing the judge to rebuke its lawyers. Not a good way to into trial, knowing the judge thinks you have “a credibility problem.” Said Davis to Fox’s lead counsel: “I need to feel comfortable that when you present something to me, it’s the truth. I’m not very happy right now. I don’t know why this is such a difficult thing.”
There’s a lot at stake. Dominion is suing for $1.6 billion, claiming its reputation and business were savaged by Fox News inviting guests like Trump lawyers Rudy Giuliani and Sydney Powell to repeat on air false conspiracy theories about its voting machines.
(Disclosure: Earlier in the case, I was interviewed by lawyers from Winston and Strawn LLP, the law firm representing Fox News, about being a possible expert witness on journalism at this trial. I have given testimony at the request of both plaintiffs and defendants in many previous defamation cases in Canada and the U.S. They said their defence would be freedom of the press, that what Trump and his minions claimed was newsworthy and they had a duty to report it. I asked if Fox News had a code of journalism standards that spelled out how its reporters are supposed to go about verifying information. The conversation abruptly changed and they made clear they did not want to go there. Needless to say, my involvement was neither offered nor sought.)
The Fox case is important. Its celebrity commentators like Tucker Carlson, Sean Hannity and Laura Ingraham have enormous influence and huge audiences. They often pose as journalists even though they aren’t. Fox claims a loss in this case will make it harder for all journalists to do what the First Amendment of the U.S. Constitution protects –pursuit of the truth. I do not agree with that rationale, but the case will certainly test how elastic that right really is.
The irony of Fox News standing as a beacon for freedom of the press should rankle us to the core. Journalism’s job is seeking the truth and going through the process of verifying it. Fox, its email disclosures show, is in the business of pandering to its right-wing audience, sometimes by suppressing or misrepresenting the truth.
And a news organization that is so afraid of losing its audience and its profits that it gives them only the news it thinks they will agree with … that is no news organization at all, but just another cheerleader on a soapbox barking for attention and totally lacking in credibility.