Donald Trump’s fact-checking is “bad for business,” according to Fox News director Suzanne Scott. Her reporters had to stop doing that, because “our viewers are furious.” That while Trump and his lawyer Rudy Giuliani had, according to Fox Corp owner Rupert Murdoch, “both become increasingly insane” with their claims of election fraud.
In recent weeks, the American public got a taste of the publicity blow that the right-wing conservative TV station Fox News probably awaits these weeks. The internal communications were released as part of a lawsuit filed by a voting machine technology company, Dominion, against the top-rated cable channel in the US. The substantive hearing will begin on Monday before a jury, which must determine whether Fox News knowingly misled the public.
There was no settlement, at least until now. It is expected that Murdoch, but also famous Fox presenters such as Tucker Carlson and Sean Hannity will have to testify.
Dominion became the target of the wrath of the Trump camp, which attributed the loss of the president without evidence to manipulation of the voting machines, in November 2020. Fox News gave free rein to these theories in twenty different broadcasts. Dominion is claiming 1.6 billion dollars (1.5 billion euros) for damage suffered and threats to personnel.
The case is seen as essential: was it just newsworthy, as Fox News argues, what then-President Trump and his loyalists said and did uncritical reports about it fall within the freedom of the press? Or have presenters deliberately spread lies and the channel will pay for it? According to Dominion, it is clear that Fox News internally knew perfectly well that the presenters helped spread lies.
Fascinating insight
Fox News is getting “at least a black eye,” says professor of media law Lyrissa Lidsky of the University of Florida. “You get a fascinating insight into the editing process and the mental state of Fox executives, producers and hosts.” A lot of evidence against Fox News has surfaced thanks to internal e-mails and texts, but Lidsky is not making any predictions. “This is of course seen in the grand context of the ‘Big Lie’ [Trumps aanhoudende verdachtmakingen dat de verkiezing zou zijn gestolen]. But if you peel it off, it’s about who knew what, and what they said about it on TV at the time. And who was responsible for that. That is, by definition, the case in a libel case. Everything else doesn’t count.”
Earlier, the judge ruled in a pre-trial hearing that the Capitol storming of January 6, 2021 may not be mentioned by Dominion’s lawyers. That would affect the jury with unforeseen consequences of Fox News’ reporting.
The self-created misery began when Fox News took a stance in the aftermath of the November 2020 election lost by Trump. Based on exit polls, the channel was the first to allocate the state of Arizona to Democratic presidential nominee Joe Biden. For example, Trump was confronted with the inevitable defeat on ‘his’ Fox News. Some of Trump’s supporters turned to far-right channels Newsmax and One American News Network (OANN). To regain favor, Fox News opinion leaders turned to Trump’s fraud claims. Maria Bartiromo in particular went far in interviews with lawyer Sidney Powell, who said she spoke on behalf of Trump and made all kinds of claims about fraud via Dominion’s machines.
But ‘malicious intent’ (‘actual malice’) must be proven. This high legal bar has been in place since the Supreme Court in 1964 The New York Times in its favor after the newspaper had previously lost a libel case against Police Commissioner LB Sullivan in Alabama. It represented a major victory for the press, which has since largely covered itself against claims.
But this protection has a downside, according to David Logan of Roger Williams University. It can pay for media to be ignorant, he says. “Suppose you have two sources who accuse someone, but you suspect that a third source thinks otherwise. Then it pays not to speak to them before publication. Ignorance is bliss.”
I wouldn’t look at this process hand-rubbing like progressive-left media
The 24-hour news dynamics on cable channels have polluted the public debate, Logan says. His article “To save our democracy, we need New York Times Co. v. Sullivan’ was reconsidered in 2021 cited by Chief Justice Neil Gorsuch. He and at least one other conservative chief justice look forward to getting a case before the Supreme Court that will change the interpretation of the First Amendment on freedom of the press.
Malicious reporting
Professor Lidsky is worried. “I would not look at this process hand-rubbing like a progressive-left media. The momentum to roll back press protections in the US is building, and when that happens it doesn’t matter which side you’re on.”
According to Logan, the broad interpretation of the concept of ‘public person’, which must tolerate a high degree of harmful reporting, is no longer tenable. “Even parents of children killed in the 2012 Sandy Hook Elementary School massacre were included when they spoke out about gun policy,” he says. “Like they asked for it.” They nevertheless won their libel case against conspiracy medium Infowars from Alex Jones, who had accused them of being actors. Jones has to pay about a billion euros in damages, and is now bankrupt.
Fox News would be able to bear an – unlikely – maximum compensation of 1.5 billion euros: it is roughly the annual profit of parent company Fox Corp.