By Dan McLaughlin
Saturday, March 04, 2023
Judges are supposed to come unbiased into every case they hear — not without opinions about the legal issues, but without an axe to grind against the parties to the case. Legal ethics rules, however, have long recognized that it is perfectly fine for judges to form negative opinions about the people in their courtroom as a result of the evidence and arguments presented to them. When witnesses and lawyers lie to the judge or disrupt proceedings, reaching conclusions about them isn’t bias, it’s judgment.
This is how I think about Donald Trump’s predicament these days regarding Fox News. The press is a judge, but it is not blind. It is one thing for Trump to complain that, say, MSNBC or Vanity Fair or The View is biased against him. They always were. But Fox and its on-air personalities were once among Trump’s biggest boosters. They gave him regular and preferential on-air access, free airtime, flattering coverage, and vigorous defenses. Fox the organization and its individual commentators were the furthest thing from being biased against Trump throughout the 2016 and 2020 campaigns, his presidency, and even his challenge to the 2020 election.
The romance is over. Shelby Talcott and Max Tani at Semafor report that Trump aides contend that he has been subject to a “soft ban” at the network:
“Everyone knows that there’s this ‘soft ban’ or ‘silent ban,’” one source close to Trump told Semafor. “It’s certainly — however you want to say, quiet ban, soft ban, whatever it is — indicative of how the Murdochs feel about Trump in this particular moment.”…
According to Media Matters’ internal database of cable news appearances, Nikki Haley’s been featured on weekday Fox News shows seven times since announcing her presidential bid on February 14. Even the little known fund manager Vivek Rama[s]wamy, who announced on February 21, has made four weekday appearances. Florida Governor Ron DeSantis, who is widely expected to run, has been all over the network in recent days.Trump hasn’t been on Fox News since announcing his presidential bid in November. His last weekday appearance on the network was in September with host Sean Hannity…
Another Trump aide told Semafor that they’ve heard firsthand about the “soft ban” from people at Fox.
What broke up the marriage between Trump and Fox? It doesn’t take Sherlock Holmes to figure out what led the network to conclude that Trump, no matter how popular he has been with Fox viewers, is bad for business.
The Dominion
Lawsuit
The reckoning for Fox came in the aftermath of the 2020 election, and its full scale is now on graphic display in Delaware state court. In March 2021, Dominion Voting Systems filed a complaint alleging that Fox, on 20 different occasions between November 8, 2020, and January 26, 2021, aired statements that falsely impugned the integrity of Dominion and its voting machines. The lies included not just unsubstantiated theories of Dominion changing the vote totals, but also brazen inventions about Dominion paying kickbacks and having ties to Venezuelan strongman Hugo Chavez (who has been dead since 2013). The falsity of these claims is by now well-documented, and was obvious at the time. By now, nobody at Fox meaningfully defends them as even arguably true.
Most of the defamatory statements were made by guests, primarily Sidney Powell, Rudy Giuliani, and MyPillow founder Mike Lindell. But Fox did more than just report on what these people were saying. The Dominion smears were often aired in uncritical interviews and sometimes echoed by Fox hosts. Lou Dobbs was the worst offender, as twelve of the 20 examples come from his show, which Fox canceled in early February 2021. The complaint quotes liberally from Dobbs embracing the theories of his guests on his show and his Twitter account. The other eight examples come from hosts and programs still on Fox: three from Maria Bartiromo, two from Jeanine Pirro, and one each from Tucker Carlson, Sean Hannity, and Fox & Friends. Bartiromo and Pirro are also quoted making statements that endorse the crackpot theories about Dominion of Powell and Giuliani (Hannity and the Fox & Friends hosts are not).
Carlson had Mike Lindell on his show six days after Joe Biden was inaugurated. The segment — which opened with Carlson thanking Lindell for being one of his show’s biggest sponsors — was framed as a cancel-culture and free-speech story. Carlson told his audience that Lindell had been banned from Twitter and suffered business boycotts “for the crime of having different opinions.” Social-media bans over lies raise legitimate questions, and Carlson had a fair point that driving “conspiracy theories” (his words) underground often doesn’t dispel them. But the thrust of the colloquy gave the viewer the impression that Dominion was trying to silence Lindell out of fear of the truth coming out, with Carlson strongly implying that Dominion was unwilling or unable to debunk Lindell’s claims. It’s worth quoting at some length to get the impression this conveyed:
MIKE LINDELL: This time, about 17 days ago when someone put up…on the internet, actual machine – “new machine election fraud,” I…re-Tweeted it, and they took my Twitter down….for about 14 days – 15 days. Then, yesterday, they put it back up so I could run it, and I made one Tweet, and the Tweet was…a good letter written by one of my employees because I’m getting attacked about my integrity and stuff, and they took it down 5 minutes later.
And then, a week ago, they did a – Dominion went online – on TV and said they we’re going to go after Mike Lindell. Well, they did. They hired hit groups, bots and trolls went after all my vendors, all these box stores to cancel me out. This cance[l] culture. Fake stories coming out to attack my Linda Recovery Networks, which helps addicts across the country. It’s just a shame, Tucker, what they – if they can do it to me, believe me. They can do it to anyone out there, but we’re not –I’m not backing down. We can’t back down not of fear this time. Nobody.
TUCKER CARLSON: I totally agree… you grew up in this country. If they disagree with you, or think that you’re saying things that are incorrect, why don’t they explain what those things are, and why don’t they try to convince you that you’re wrong? I mean, I thought the rules were if you think someone is saying something incorrect, you explain how it’s incorrect, and you convince his audience that actually he’s right, and you’re wrong. When did that go away? When did we decide force was the only answer to disagreement?
MIKE LINDELL: Right. And that – you know, they – I can’t even live stream on Facebook. They’ve shut it down. But you’re exactly right, Tucker. What I say to them, with this particular thing that’s going on now, I’ve been all in trying to find the machine fraud, and I – we found it. We have all the evidence. So were all these – all these…outlets that have been calling me from the Washington Post, New York Times, … every outlet in the country, they go, “Mike Lindell, there’s no evidence, and he’s making fraudulent statements.” No. I have the evidence. I dare people to put it on. I dare Dominion to sue me because then it will get out faster. So this is – it – you know, they don’t – they don’t want to talk about it.
TUCKER CARLSON: No. They don’t.
MIKE LINDELL: They don’t want to say – they just say, “Oh, you’re wrong,” and I’m going, “You know what?”
TUCKER CARLSON: They’re not making conspiracy theories go away by doing that.
MIKE LINDELL: Right.
TUCKER CARLSON: You don’t answer…you don’t make people kind of calm down and get reasonable and moderate by censoring them.
MIKE LINDELL: Yeah.
TUCKER CARLSON: You make them way crazier. Of course. This is like ridiculous.
MIKE LINDELL: Yeah. You know why wouldn’t everyone want to know the truth to this country? Just let the truth be told. If there’s nothing to hide, let’s bring it out so we can all see it. Instead, they’re trying to erase Mike Lindell and erase MyPillow.[emphases mine]
Dominion’s Motion
for Summary Judgment
On January 17, 2023, Dominion filed a motion for summary judgment asking the Delaware court for a verdict its favor without the need for a trial. The various Fox defendants have filed their own cross-motions for summary judgment asking for dismissal of some or all of the case. These motions are based upon the full evidentiary record developed in civil discovery, including internal Fox text messages and the depositions of various Fox hosts and producers. The witnesses whose deposition testimony is cited in the brief include Dobbs, Bartiromo, Pirro, Carlson, Hannity, Lachlan Murdoch, Bret Baier, Dana Perino, Laura Ingraham, Chris Stirewalt, and Bill Sammon. There are also multiple written messages from Rupert Murdoch himself.
A motion for summary judgment in a civil lawsuit asks the court to decide that there are enough undisputed facts to rule for one side or the other on a particular legal issue, or on the whole case. It is much harder to get summary judgment for a plaintiff than for a defendant, especially in a case involving knotty questions of truth and falsity, knowledge and intent. A defendant, after all, can simply establish that one essential element of the plaintiff’s lawsuit hasn’t been proven; the plaintiff has to show that all the elements are proven by undisputed facts and that there are no other facts (disputed or otherwise) that could present a defense or undermine proof of the plaintiff’s case.
It remains to be seen if every single legal element of Dominion’s claims will win at summary judgment, or even if it will avoid some or all of the defense motions. There are some challenging legal questions about the precise lines in a defamation case between fact and opinion, and about when a television host has offered enough context so that a guest’s statements are “published” rather than simply reported upon. Cable networks don’t have the protections that Section 230 of the Communications Decency Act extends to social-media companies — they are responsible for whom they put on the air. There are also side issues such as Fox Corporation’s liability for Fox News’s programming and the availability of punitive damages.
But I can say this: It is hard to overstate how damning Dominion’s case is. I spent years litigating false-statement and fraud cases, and reading filings and opinions in other cases, and I have never seen a plaintiff assemble anything remotely like this 176-page summary judgment brief.
We should properly view with the deepest skepticism efforts to use lawsuits and the courts to settle questions of truth and falsity of political questions. But Dominion’s lawsuits — including this one against Fox — are exactly what the laws of libel and slander exist for: media outlets and public figures with big megaphones spreading provably false claims about how a company does business, causing direct harm to its reputation with current and potential customers. In this case, Fox did so while ignoring scores of pleas from Dominion, including, according to the brief, “over 3,600 separate communications to Fox with at least a dozen separate and widely-circulated fact check emails each pointing to verifiable third-party information debunking the claims.”
Given both the liability risks and the damage to Fox’s and its hosts’ reputations, it is staggering to me that the company has not settled this case, at any cost. There are cases where things are so bad that you, as a lawyer, need to sit down in private and counsel your client that they should be all but willing to hand the other side a blank check to make it go away. Maybe Dominion is asking for the moon, or maybe it didn’t want to settle for money until it had settled the score in public with these court filings; that is certainly possible. But the story told here in the text messages and deposition testimonies of prominent people at Fox offers a vivid object lesson in how a journalistic enterprise lets itself get sucked into a campaign of lies, with grievous costs to its own credibility. It is no wonder that the network wants no part of repeating the experience with another Donald Trump presidential campaign.
What Fox Hosts Really
Believed
Dominion’s brief is replete with examples of Fox hosts telling a very different story in private from the one that they and their colleagues told in public. For years, Fox hosts cultivated an implicit bargain with their viewers: We’re on your side, we respect your opinions, and we’ll ensure that you get to hear your side of the story here. That often meant defending the perspectives of Trump, his allies, and his voters.
Many conservative media outlets have made some version of this bargain with their readers, and ideological outlets on the other side do the same. So long as you are committed to accuracy and at least some basic sense of fair presentation, there is nothing wrong with advocacy journalism. There is a second bargain also implicit in this: You, the viewer, will not select political leaders whose side cannot be taken without sacrificing accuracy, then demand we take it anyway. A critical mass of Fox’s Trump-supporting viewers broke that bargain. Trump is why.
The trouble with flacking for Donald Trump for years is that it gets one in the habit of pretending that lies are the truth, or at least that the answer to Pilate’s cynical question — “What is truth?” — is always negotiable. That’s not to deny that defending Trump against other people’s lies and exaggerations, or championing his many good policies against their critics, was a noble endeavor. I did plenty of both myself over the past seven years, and so did many other honorable people on the right, whether or not they could bring themselves to vote for the man. Sticking up for what is true and right in defense of your party’s leader is not just good coalition politics, it is good journalism and good advocacy.
But siding with Trump’s individual statements and policies on a transactional basis without losing your integrity requires constant effort. Once you abandon that effort and go all-in for writing a blank check to Trump to spend your credibility however he chooses, you have given yourself as hostage to a man of low character without knowing exactly how low he is willing to go. It’s like handing a credit card to a junkie.
When Trump committed himself to a course of refusing to accept the results of the 2020 election no matter what, Fox and its on-air personalities were caught in a trap: So long as Trump insisted that he had won the election, a significant segment of Fox’s viewers did not want to hear anything to the contrary. Fox’s prime time lineup knew who created the problem:
Tucker Carlson, Laura Ingraham, and Sean Hannity immediately understood the threat to them personally. Carlson wrote his producer Alex Pfeiffer on November 5: “We worked really hard to build what we have. Those f***ers are destroying our credibility. It enrages me.” He added that he had spoken with “Laura and Sean a minute ago” and they are “highly upset.” Carlson noted: “At this point we’re getting hurt no matter what.” Pfeiffer responded: “It’s a hard needle to thread, but I really think many on ‘our side’ are being reckless demagogues right now.”
Tucker replied: “Of course they are. We’re not going to follow them….What [Trump is] good at is destroying things . He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.” (Citations, profanity and alterations omitted).
A November 12 exchange among Hannity, Carlson, and Ingraham underlined how Trump had screwed Fox: Hannity wrote that “in one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable.” Carlson responded, “It’s vandalism.”
In private, Carlson and Hannity were right: So long as Trump remained committed to a course of destructive untruth, there was no possible way for anyone in conservative media, and especially Trump-friendly mass media outlets such as Fox, to come out unscathed in the battle between preserving your credibility and staying on the good side of your audience. (National Review opted for the former, and thankfully most of our readers appreciated this — Dominion’s complaint even cited a Jim Geraghty column shared by Brit Hume as an example of what Fox’s senior people should have known.)
Fox’s election analysts (led by Stirewalt) went out on a limb in an early call of Arizona for Biden — a call whose timing remains debatable, but whose bottom line was vindicated by the final outcome. On November 9, Fox News CEO Suzanne Scott wrote that she wanted to lead the network’s loyal viewers gradually towards accepting reality: “Viewers going through the 5 stages of grief. It’s a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them.”
White House correspondent Kristin Fisher was chewed out for not “respecting our audience” for fact-checking Giuliani. When Perino questioned claims made at a Trump campaign press conference and suggested that Dominion might have a basis for a lawsuit over this sort of thing, Scott emailed that “You can’t give the crazies an inch right now…they are looking for and blowing up all appearances of disrespect to the audience…The audience feels like we crapped on [them] and we have damaged their trust and belief in us…We can fix this but we cannot smirk at our viewers any longer.” Of course, this idea that telling your audience the truth is “disrespecting” them is entirely a creation of Trump and his particular style. Fox executive Ron Mitchell understood this, responding that “I’m not mad at either of them. I’m mad at those clowns at the conference who put us in a terrible place.”
The lowest moment documented by Dominion started with a group text on the night of November 12 among Carlson, Hannity, and Ingraham, in which Carlson demanded the firing of a news reporter for sticking up for the truth:
Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich…fact checking a tweet by Trump that mentioned Dominion and specifically mentioned Hannity’s and Dobbs[’] broadcasts that evening discussing Dominion. Heinrich correctly fact-checked the tweet, pointing out that “top election infrastructure officials” said that “‘There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.’”…
Carlson told Hannity: “Please get her fired. Seriously What the f***? I’m actually shocked. It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke….I just went crazy on [a Fox executive in charge of primetime programming] over it.” Hannity said he had already sent to Suzanne with a “really?”
Hannity listed more grievances against the network’s coverage not backing up Trump’s narratives, and raised the issue with Scott. She told another Fox executive, “Sean texted me he’s standing down on responding but not happy about this and doesn’t understand how this is allowed to happen from anyone in news. She [Heinrich] has serious nerve doing this and if this gets picked up, viewers are going to be further disgusted.” Heinrich deleted the tweet soon after.
This is an appalling way for the network’s celebrities to treat a subordinate member of the news team. It’s understandable when people who are the public face of an organization are upset at a more junior person appearing to go after the organization’s most prominent voices in public. But Heinrich was responding to the president of the United States; she wasn’t going personally after Hannity and Dobbs. At most, that called for a private talking-to about not embarrassing other people on your own company’s team. But demanding that somebody lower on the corporate totem pole get fired for telling the truth on a crucial matter of public controversy is a sign that you have completely lost the plot as a news organization.
And again: Without excusing any of the choices made by Fox on-air personalities, the only reason why any of them were in this stew where they were turning on one another is because Trump put them to a test they could not pass. It is natural and reasonable for them to remain bitter at him, both for what he did to them and what it showed them about themselves. Why shouldn’t they look at someone such as Ron DeSantis and notice that this is the sort of crisis that DeSantis doesn’t create for his media defenders? Why would anybody who lived through that period in conservative media ever want to sign up to re-live it?
By November 18, Carlson had concluded what was obvious to everyone who dug into the matter. He wrote to Ingraham, “Sidney Powell is lying, by the way. I caught her. It’s insane.” Ingraham responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” Carlson was appalled on behalf of his audience: “It’s unbelievably offensive to me. Our viewers are good people and they believe it.” He tried, in the gentle language one uses with a friend, to signal to his viewers that Powell did not have any basis for her claims — but he was nowhere near as blunt in public as in his private assessment, instead maintaining a public posture of being “hopeful” that Powell could back up her lunatic theories:
November 19, after the Giuliani/Powell press conference , Carlson very carefully tried to thread his own needle. On one hand, he said publicly on his show that what Powell was describing “would amount to the single greatest crime in American history” but “she never sent us any evidence, despite a lot of requests….he closed by saying, “Maybe Sidney Powell will come forward soon with details on exactly how this happened, and precisely who did it. We are certainly hopeful that she will.”
When Powell couldn’t deliver, Carlson could have washed his hands of the people peddling voting-machine conspiracy theories. Instead, he gave a platform to Lindell, to complain about Dominion trying to silence him.
Rupert Murdoch was by turns alarmed and appalled at his own network. On November 6, he wrote to Scott that it was “very hard to credibly claim foul everywhere” and identified what he saw as the biggest risk to Fox: “if Trump becomes a sore loser we should watch Sean [Hannity] especially and others don’t sound the same.” On November 19, after watching Giuliani and Powell, Murdoch told Scott that this was “terrible stuff damaging everybody, I fear.” She responded, “Yes, Sean and even Pirro agrees.” In the aftermath of January 6, he wrote to Scott, “All very well for Sean to tell you he was in despair about Trump but what did he tell his viewers?” Scott, for her part, testified that “Privately, I had a number of conversations with Sean where he wanted the President to accept the results.”
Instead, Trump hung Hannity out to dry like he was just another mark. It is judgment and experience, not bias, if Hannity and his Fox colleagues are hesitant to go down that road again.
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