In a piece in The Wall Street Journal, former Attorney General Bill Barr has cut right to the heart of the matter in the seemingly endless law suit featuring Fox News and Dominion Voting Systems over wild claims about the 2020 elections.
Barr’s headline:
Dominion’s Weak Case Against Fox
Victory for the plaintiff would severely weaken the First Amendment protection all news media enjoy.
He began with this:
The mainstream press has reacted predictably in recent weeks after Fox News’s internal communications and witness depositions were disclosed in Dominion Voting Systems’ defamation lawsuit against the network. Blinded by resentment at Fox’s success as an alternative media voice, many media organizations offered a distorted narrative—largely parroting Dominion’s spin—that the disclosures doom Fox’s legal defense. Commentators from the New York Times, Washington Post, CNN, MSNBC and other outlets, gleeful at the prospect of a Fox setback, cheer on as the defamation case heads toward a trial date.
…a ruling against Fox would be a major blow to media freedoms generally, subjecting news outlets to the prospect of outsize liability whenever they report on newsworthy allegations that turn out to be false.
Exactly. Why would these legacy media outlets root for a lawsuit that could expose them all to more lawsuits?
Let’s be clear. The job of a news organization -- whether Fox or The New York Times, Washington Post or any other TV, print or cyber news organization is to present the facts of a story. Can facts be in dispute? Of course. News stories are built on facts, but they often support a narrative, a theory of what is going on in the world. It's one thing to wish Fox is deeply embarrassed. But to wish them damage in this lawsuit is not the way journalists should act in a country that reveres a free press.
Barr explains "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." He suggests the people pushing Russiagate should be happy for this policy.
To illustrate, let’s move way back in history to an example that is long in the history books.
On November 22, 1963, during a motorcade in downtown Dallas, Texas, President John F. Kennedy was assassinated. There were witnesses aplenty, including a local man with his own movie camera, Abraham Zapruder. When released to the public eventually the “Zapruder film” as it came to be known made it all too gruesomely clear what had happened to JFK, the video showing Kennedy being shot, his head exploding, wife Jackie frantically scrambling onto the trunk of the car to assist a Secret Service agent who was leaping on to the moving car to help.
Those were the facts. The news. It was reported everywhere in the day.
But given the fact that JFK was President of the United States there was no way the story would end there. From that day until, amazingly, today -- almost 60 years later -- what really happened that day off camera and in the run up and aftermath of the assassination is still debated.
Was it assassin Lee Harvey Oswald acting alone? Was Oswald even the assassin or was it somebody on the nearby “grassy knoll”? Was it a conspiracy by a Kennedy-hating CIA? Or the Mafia that was livid with JFK’s attorney general brother Robert Kennedy for his Mafia investigations? Or was it a Communist revenge for various American plots to take down Cuba’s Fidel Castro?
On and on - and on and on - go the theories (conspiracy theories?) - as to what really happened that day and who was really responsible.
But the point here is the same as in the Fox - Dominion matter. Exactly as Bill Barr is saying:
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.
Exactly. They have latitude to draw conclusions based on the facts of the moment as we know them.
On the Kennedy matter, when someone puts out a story that, say, there was another shooter on the grassy knoll - that doesn’t mean the idea is true or false. It simply means that it is a fact that this theory is out there and the news organization in question is reporting that fact. Here is Barr again:
Finally, 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. These cases are governed by the “actual malice” standard first enunciated by the Supreme Court in New York Times Co. v. Sullivan (1964). In these circumstances, a media speaker isn’t liable for defamation, even for a false statement of fact, unless he knows when he makes the statement that what he is saying is false or gravely doubts its truth.
Again, exactly.
I have no idea what the “truth” is that will, hopefully, emerge at the conclusion of this Dominion lawsuit against Fox. But of one thing it is certain. Whatever the results they will be news. And they will deserve to be reported fully and completely.
What the rest of us make of those results is, for sure, a choice. And in a nation where free speech, a free press and the freedom to think for oneself are protected by the Constitution -- those choices will themselves become news.
Which is to say, as Bill Barr is saying, freedom of the press in on the line here. And it would be a serious mistake to abandon it.
Which is to say, for those liberal media outlets cheering on the suit against Fox should be very careful they are not setting a precedent.
A precedent that could come back to bite... them.
