We The People v Fox ‘News’ Corporation

During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies.

The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.

When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed, and the Times appealed.

When the case reached the U.S. Supreme Court, the Court ruled that when a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term “actual malice” to summarize this standard.  This was a landmark case and decision that has probably saved this nation billions of dollars in lawsuits over mistakes made by the press.

Fast forward to 2021 through present and consider the information we recently learned that Fox ‘News’, with full knowledge that the 2020 election was a fair one and that President Biden was the legitimately elected president, perpetuated the Big Lie that the election had been “stolen” from one Donald Trump.  Not only did the reports like Sean Hannity, Tucker Carlson and Laura Ingraham know that they were telling lies, but the CEO of Fox Corporation, Rupert Murdoch, also knew that his employees were selling the public a grab-bag of very harmful lies!  And Murdoch allowed this to go on for two years.

Dominion Voting Systems, the company that manufactures the electronic voting machines used throughout the country, is suing Fox ‘News’ for libel, and it seems to me they have a pretty darn good case, based on what we have seen of the private communications among the Fox hosts.  However, I don’t think it should end there.  Certainly Dominion suffered harm from Fox’ lies, but so did the people of this country.

Fox ‘News’ is the most-watched cable ‘news’ channel in the nation.  Though I personally do not understand this, according to New York Times’ David Brooks, rural America sees Fox as their ‘community’, as the people who understand them and their problems.  Some, perhaps millions of people, never see any news outside of Fox’ control and may still not be aware that they were blatantly lied to for two years about the results of the 2020 election.  Those people are voting, based on what Fox tells them, against their own interest as well as against the interests of the nation.  They … and we … have been harmed by the lies that Fox hosts repeatedly told, lies that were believed and acted upon, by their viewers.

It seems to me that Dominion isn’t the only one who should be suing Fox, but that We the People have grounds for an enormous class action suit against the company.  Because of their lies, we had January 6th.  Because of their lies, millions if not billions of dollars of taxpayer money has been spent on recounts and lawsuits.  Thousands of hours of personnel time have been dedicated to debunking Fox’ lies.  And nearly every state in the nation has seized on the false notion that there was significant voter fraud in 2020 to warrant them passing voter suppression laws that will hurt us all.

Oh yes, we can prove ‘actual malice’ in this case.  Fox cared only about one thing … its ratings, not losing viewers and thus advertising money.  Murdoch’s and Hannity’s and Carlson’s and Ingraham’s personal bank accounts and investment portfolios meant more than the trust of the public and thus they betrayed that trust.  What’s to stop the people of this nation from filing a lawsuit?

Trump vs The 1st Amendment

Since the U.S. Senate handed Donald Trump the keys to the castle and told him to “have fun” and promised that “we’ve got your back” no matter what he does, he has been on quite a spree.  Last week, it was the firing of qualified career people within the administration and their replacement with highly unqualified people.  Then came the news that any non-loyalists, any not willing to basically swear an oath of fealty to Trump, would be fired and replaced with those loyal to the king Trump.

All last week, I waited for the other shoe to fall.  What ‘other shoe’ you ask?  The press, my friends.  Ever since the day he threw his hat in the proverbial ring in mid-2015, Trump has been denigrating the press, referring to them as “the enemy of the people”, attempting to revoke press passes of those like Jim Acosta who had the unmitigated gall to ask him the uncomfortable questions he didn’t want to answer.  And remember how, during his first year in office, he often threatened to change federal libel laws to make it more difficult for the free press to report the truth?

Yesterday morning it was announced that the Trump re-election campaign is filing a libel suit against the New York Times in the New York state court.  Their claim is that the Times had intentionally published a false opinion article that suggested Russia and the campaign had an overarching deal in the 2016 U.S. election.  The suit accuses the times of “extreme bias against and animosity toward the campaign,” and cited what it called the Times’ “exuberance to improperly influence the presidential election in November 2020.”

The New York Times responded with a statement:

“The Trump Campaign has turned to the courts to try to punish an opinion writer for having an opinion they find unacceptable. Fortunately, the law protects the right of Americans to express their judgments and conclusions, especially about events of public importance. We look forward to vindicating that right in this case.”

Interestingly, the Times had not yet, at that point, been served official notice of the case, but rather had learned of it through media reports.

The case relates to a March 27, 2019, opinion article written by Max Frankel, a former executive editor of the Times who left the paper in 1994.

You may remember that the New York Times was involved in a landmark 1964 Supreme Court ruling that has served as a safeguard for media reporting on public figures. In the case New York Times v. Sullivan, the court decided that the U.S. Constitution’s First Amendment protection for freedom of the press allows even statements that are false to be published as long as the publication was not done with “actual malice.”  Thus, the suit, according to the draft copy released by the campaign, accused the newspaper of a “malicious motive” and “reckless disregard for the truth.”

Now, note that this OpEd was written just under a year ago, and two years after Trump took office, and just under three weeks before the redacted version of the Mueller report was released.  The Mueller report documented Moscow’s campaign of hacking and social media propaganda to boost Trump’s 2016 candidacy and harm his Democratic opponent Hillary Clinton. It also documented numerous contacts between people associated with Trump’s campaign and Russians.  What it did not do, as Trump claimed, was ‘exonerate’ him.

A portion of Frankel’s piece stated …

“Collusion – or a lack of it – turns out to have been the rhetorical trap that ensnared President Trump’s pursuers.  There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.”

All of which is, in this writer’s opinion, proven true.  And, although it took him two years, Trump did lift the Obama administration’s sanctions on Russia in January 2019.

A spokesperson for Trump’s campaign said yesterday …

“The statements were and are 100 percent false and defamatory. The complaint alleges The Times was aware of the falsity at the time it published them but did so for the intentional purpose of hurting the campaign, while misleading its own readers in the process.”

Well … seems to me the statements were true, but either way, it was an opinion piece written by somebody who was not on the Times’ staff.  Thing is, Trump has just been itching for an excuse to shred the “freedom of press” portion of the 1st Amendment since even before taking office.  Now that he is feeling newly emboldened, feeling invincible and that he can do anything he pleases, this is but his first step in the process of attempting to rein in the media.

Stuart Karle, an adjunct professor of media law at Columbia Journalism School, told Forbes the lawsuit is “an abuse of the court system and completely inappropriate.”  Karle said he didn’t think Trump’s campaign expects to win the case, and believes it was filed for political reasons: “It’s using the courts to argue with their critics.”

I don’t see how he could possibly win this case, but … it feels very much like a portent of things to come.  It feels very much as if this is designed to send a message to the media as a whole.  I don’t like it … not one bit.  At the very least, he is wasting taxpayer dollars, tying up the courts.  At the very most, he will gain the attention of his faithful followers who will, of course, be more convinced than ever in the months leading up to the election, that the press is against Trump and that they should not believe a word that is said about him unless it comes from his chosen Fox “News”.

Keep your eye on this ball, friends …