By Nick Catoggio
Friday, February 17, 2023
A few days ago Kevin Williamson made a scandalous charge, that American libel law tilts too far in favor of publishers.
How scandalous? To begin with, you don’t typically find writers complaining that their protection from defamation suits is too robust. If you work in media or publishing, you read his column with one eyebrow raised. Maybe two.
If you’re trained in law, as I am, you might also have felt a frisson of shock at the idea that New York Times v. Sullivan shouldn’t be treated as holy writ. The Warren Court bequeathed to us many precedents that conservatives find questionable, but its preference for freer speech isn’t usually part of the brief against it.
Lastly, it made for strange bedfellows. The most prominent advocate for making it easier to sue the media is, of course, Donald Trump. Ron DeSantis, America’s thirstiest governor, has lately taken that position as well as part of his tireless quest to out-pander Trump among the populist right. One doesn’t often find Kevin aligned with a petty authoritarian given to grumbling that the press is too free while the word “TRUTH” blazes in giant Orwellian letters behind him.
Scandalous. The only redeeming thing that might be said about Williamson’s argument is that he’s right.
He’s right in the broad sense and on the particulars of the case he wrote about. The oft-debunked belief that Sarah Palin somehow incited the attempted murder of Gabby Giffords in 2011 became so entrenched within the American left that the so-called “paper of record” glibly repeated it in an editorial six years later. I encouraged Palin to sue the Times for defamation at the time. (A year after the kerfuffle over that editorial, another “respectable” newspaper claimed, falsely, that the attack on Giffords had something to do with right-wing mobs.) Palin did sue—and lost.
The Times’ actual malice toward a despised ideological enemy somehow didn’t amount to actual malice in the legal sense of the term as defined in Sullivan. Kevin can’t understand that. Neither can I.
My interest in revisiting libel law has less to do with Palin being railroaded by the Times, though, than with the democratization of publishing in the digital age.
We shouldn’t be too romantic about the allegedly high standards of the professional press. Tell a conservative that the average journalist is more likely to report the truth than their favorite blogger and the words “Walter Duranty” will be out of their mouth before you finish your sentence. The pros do make mistakes, a lot, and the Palin case reminds us that those mistakes aren’t always innocent. But the reaction to their mistakes is quite different from the reaction to mistakes made by the average yahoo with a modem, even if the yahoo has built a gigantic audience.
A journalist by trade is expected to get his facts right, or to strain mightily to do so—which doesn’t always happen either. But if they fail they can expect to be exposed and held accountable by adversarial critics online, sometimes at great length depending on how egregious their failure was. The yahoo is expected to be a yahoo, however, and typically escapes accountability no matter how irresponsible they are. If you doubt that, consider how rarely the right’s saltiest media critics come after the cranks on their own side for peddling smears.
A double standard for pros and yahoos wouldn’t be terrible if readers distinguished between the two and treated the latter’s claims more skeptically than the former’s. Where it turns terrible is when the audience loses—or forfeits—the critical faculty it needs to distinguish one from the other. In that scenario, with professional outlets suddenly pitted directly against yahoos in a competition for audience share, the incentive the pros have to get things right begins to yield to the incentive the yahoos have to make sensational, crowd-pleasing claims.
We can’t criminalize our way out of that. Freedom of speech includes the freedom to lie without government sanction. We can’t shame our way out of it, either. A partisan yahoo regards shame as a form of weakness and won’t be deterred by the scorn of “elites,” especially if they’re raking in dough by telling consumers what they want to hear.
There are a lot of yahoos out there who believe passionately in things that aren’t true and care not a whit about who might be hurt by them expressing those beliefs. One such yahoo happens to be the frontrunner for the Republican presidential nomination. The only way to get people like that and the professional news outlets who compete with them to care about the damage they do is to hit them in the wallet when they don’t.
Which brings us to Fox News and Dominion Voting Systems.
***
The best thing you can do with five spare minutes this weekend is read the first 10 pages of the document Dominion’s lawyers filed yesterday. Superficially that document is a legal brief in support of a motion for summary judgment in the company’s defamation suit against Fox. But it’s unthinkable that a court would grant summary judgment in a case as momentous as this one and Dominion must know it. Their motion will be denied. So why file it?
Because: They wanted an excuse to show the American public in detail what the discovery process has revealed about the extent of Fox’s corruption following the 2020 election. The document is a moral argument masquerading as a legal one.
Dominion might win its suit notwithstanding the general truth of what Kevin said in his piece, that “nothing short of a signed and notarized statement of intent to commit libel seems to satisfy judges or juries” in modern defamation litigation. What the company aimed to show in its nearly 200-page brief is that, by word and deed, Fox personnel from management on down did all but openly confess their intent to commit libel. They acknowledged privately that Trump’s conspiracy theories were false; they were warned repeatedly that those theories were false; they pressed ahead on the air with the big lie anyway.
But even if Dominion loses, it’ll have extracted a measure of moral compensation. Whatever else one might call programming that suppresses the truth if it might offend the audience, “news” ain’t it. (“Propaganda” sounds about right.) No one who reads Dominion’s pleading will ever look at Fox the same way. That’s why the company filed it.
Your best options for highlights from the brief are Twitter threads posted by Erik Wemple of the Washington Post and John Whitehouse of Media Matters, although the entire document can be fruitfully distilled to a single line allegedly uttered by Fox’s Washington managing editor, Bill Sammon: “It’s remarkable how weak ratings make … good journalists do bad things.” You might disagree with Sammon about how many “good journalists” there are at the network, but ratings do seem to have been the driving motive for Fox’s lurch into conspiratorial cloud cuckooland.
According to Dominion, the trouble began when the network’s decision desk projected—accurately—on Election Night that Joe Biden would narrowly win Arizona. (The man who led that team, Chris Stirewalt, eventually paid with his job before landing an exciting new gig at The Dispatch.) Fox viewers revolted, aghast that their favorite news source had validated “the steal” by calling a reliably red state for the Democrat before any other network had. In the days and weeks following, executives watched with concern as disaffection among Fox viewers led to soaring ratings for populist rival Newsmax. Some drew dark conclusions.
Ron Mitchell allegedly mocked the paranoia of election truthers in texts to colleagues, describing Sidney Powell and Rudy Giuliani as “clowns,” but did nothing to stop Sean Hannity from inviting Powell onto his show. Why? Because, according to Dominion, an in-house analysis at Fox showed that viewers were switching to Newsmax whenever Powell appeared on that network.
“Disgruntled FNC viewers” had an itch for “conspiratorial reporting” so Fox, which purports to be a news organization, scratched it.
Throughout November 2020, as Trump incited his fans with ever more febrile lies about a grand election conspiracy, Fox reporters who behaved responsibly came under fire internally for antagonizing the audience. Politico summarized three instances flagged by Dominion.
· On Nov. 9, 2020, host Neil Cavuto cut away from White House press secretary Kayleigh McEnany as she made unsubstantiated claims of a stolen election. “Unless she has more details to back that up, I can’t in good countenance continue to show you this,” Cavuto said on the air. For this, Fox News Senior VP (and former Trump White House press aide) Raj Shah labeled Cavuto a “brand threat” in a message to top corporate brass.
· Hannity and Carlson tried to get Fox News reporter Jacqui Heinrich fired for fact-checking a Trump tweet about Dominion and noting that there was no evidence of votes being destroyed. “Please get her fired. Seriously… What the fuck?” Carlson texted Ingraham and Hannity on Nov. 12, 2020. “It’s measurably hurting the company. The stock price is down. Not a joke.” Hannity exploded on top execs, including one who panicked and wrote that Heinrich “has serious nerve doing this and if this gets picked up, viewers are going to be further disgusted” with Fox. (CNN’s Oliver Darcy reported last night that Heinrich was “blindsided” by this disclosure.)
· On Nov. 19, 2020, after Fox broadcasted the now-infamous Giuliani and Powell press conference about Dominion, then-White House correspondent Kristen Fisher got in trouble for fact-checking their bogus claims. Per the filing, “Fisher received a call from her boss, Bryan Boughton, immediately after in which he emphasized that higher-ups at Fox News were also unhappy with it, and that Fisher needed to do a better job of, this is a quote, respecting our audience.”
Accuracy as a “brand threat” and a failure to “respect our audience.” Call that what you like, just don’t call it “news.”
Tucker Carlson in particular seems to have worried about what too much truth might do to Fox’s reputation on the right. He reportedly warned his producer at one point that Trump could “easily destroy us” if Fox “played” his allegations of election fraud wrong, so they played along. On January 6, 2021, the afternoon of the insurrection, the network finally pulled the plug on Trump by barring him from calling into Lou Dobbs’ show, fearing that he might incite God knows what if allowed to speak to conservative viewers at that moment unfiltered. If they had known at the time that the Republican base would rally behind Trump again post-impeachment, I wonder if Fox would have taken him live on Dobbs after all.
All of this feels familiar, doesn’t it?
***
Both the GOP and its most prominent media outlet seem to find their supporters at once gullible and contemptible.
Fox’s relationship with its viewers after the election is a simulacrum of the Republican establishment’s relationship with its voters since 2016. In both cases, professionals who see through populist nonsense felt obliged to supply it disingenuously because the appetite for it among the people to whom they cater is voracious, overwhelming, and inexhaustible.
Had Fox turned off the spigot of lies, its viewers would have migrated to Newsmax. Had the Republican Party turned off the spigot of Trump support, many of its voters would have followed him into a third party. The price of relevance in the modern right is illiberalism and kookery, cynically feigned or otherwise.
As a wise man recently said, the party’s “Trump problem” is really a “Trump-voter problem.”
If you’ve ever worked in conservative media, you know this rule: There’s always someone nuttier, or willing to pretend that they’re nuttier, who’s coming for your audience. A year ago, I’d never heard of Stew Peters. I’ve heard of him now, as have many others, because conspiratorial populism is the path to media celebrity on the right. Likewise, many a chagrined conservative wondered in 2016 why Rush Limbaugh, a proud Reagan Republican, suddenly sounded receptive to the party’s takeover by a nationalist who was soft on Russia and hard on entitlement reform. The unhappy answer is that Rush recognized his listeners craved strongman populism more than they did conservatism and that they’d leave him behind if he didn’t follow them toward Trump. After decades as the king of right-wing talk radio, it seems he couldn’t bear to see himself diminished by losing his audience to someone nuttier.
So he said what he had to say to keep the nuts happy.
Everyone who makes their living in conservative politics or its media arms has had to make a choice like that at some point over the last eight years. Most, like Fox News, have embraced the view of election crank Maria Bartiromo, who apparently concurs with the statement “It’s easier to get good ratings when you are giving your audience something they want to hear.” (For the rest of us, there’s The Dispatch.) What’s remarkable about the Dominion filing is that it shows the professionals who’ve compromised themselves to protect their livelihoods nonetheless retain a powerful sense of contempt for their populist clientele—and even their populist media colleagues.
Noisy contempt from the base for its political and media leaders and quiet contempt from those leaders for the base: That’s the Republican Party.
And because it is, I wonder how much of a price Fox will pay reputationally for Dominion’s revelations.
I meant what I said, that no one who reads the company’s brief will look at Fox the same way. We can’t shame yahoos by exposing their corruption but we can shame major media organizations—in theory. Realistically, though, practically everyone who reads Dominion’s filing will already have a dim view of Fox News going in. How many Fox viewers, the people the network actually cares about, will so much as hear of the brief, let alone wade through it?
In A Face in the Crowd, Lonesome Rhodes is undone when a live microphone catches him mocking his populist fans as idiots. Dominion’s filing is the 21st-century equivalent of that, but modern populists are so siloed off from mainstream media sources that they might never learn that it exists. Fox won’t cover it, obviously. And cowardly smaller conservative outlets will stay away from it for fear of offending Fox and losing guest-shot opportunities for their contributors. Sniff around online today among the right’s most stalwart media watchdogs and tally up how many stories you find criticizing Fox for the allegations in Dominion’s brief.
The best chance the Republican base has of stumbling across Dominion’s claims is if Newsmax or Steve Bannon publicize them in order to shame Fox … for doubting Trump’s election lies behind the scenes. As establishment RINOs are wont to do, of course.
In the end, until American libel law changes, we may have to content ourselves with a moral victory in this matter. Dominion could lose in court. Fox is unlikely to suffer damage to its ratings, particularly if it continues to pacify viewers with crapola like this.
But even if the worst comes to be, Dominion and its legal team served notice to the rest of populist media to think twice before spreading the next smear. There’s a reason Kari Lake’s election nuttery in Arizona hasn’t caught on in major right-wing outlets, and it’s not because there’s no grassroots demand for it. It’s because libel lawyers are now awake to the fact that deep-pocketed conservative media sites will make shockingly irresponsible claims simply to protect their audience share among cranks. Dominion’s dogged pursuit of accountability is thus an act of civic hygiene whether it succeeds or not. We owe them.
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