Fox News: Inherently Newsworthy Algorithms and the Trump-Biden Corrigendum in a First-Person Collision
Fox has dismissed both suits as efforts to stifle legitimate coverage of inherently newsworthy allegations – election fraud – made by inherently newsworthy people – including the then-sitting U.S. president and his top campaign advisers. Fox never did back down from its projection of Arizona for Biden, its original sin in the eyes of Trump and his campaign. As Fox viewers abandoned the network for hard-line programming on Newsmax and other channels, some of the network’s stars challenged the legitimacy of Biden’s pending certification.
The chairman of Fox Corporation is facing a scandal that threatens to cause damage to his media empire, including Fox News, and the company he leads. The scandal has unearthed damning information which shows a right-wing talk channel was willing to lie to its viewers.
The judge upheld that the contracts should be given to Dominion, although there was some argument about that in the Tuesday hearing.
Senior executives at Fox News wanted to prevent their stars from having Trump’s campaign attorneys repeat their lies on their shows. The Trump’s loyalists made the accusations in late 2020.
In his exchanges with the judge, Keller drew a line distinguishing between a host or producer “who are sometimes pre-scripting material for the show, that is going to be tethered to a specific channel’s telecast” and a network executive.
As Folkenflik noted, “If you’re Rupert, you can’t fire Rupert. And you’re not going to fire [Fox CEO] Lachlan is a man. Murdoch is also included. So who are you going to chop?”
Nelson said that the document obtained from Fox talks about the daily editorial meeting, and that “almost all of these executives that we’re looking at right now.”
Fox said that the lawsuit has always been about what will generate headlines, rather than what can survive legal and factual scrutiny.
To win a defamation case, Fox must be proved to have shown actual malice. Either broadcast false and harmful information or disregard for the truth.
The court filing is the most detailed look at the chaos behind the scenes at Fox News, after Trump’s loss and viewers rebelled against the channel for accurately calling the contest.
The host of the first post election interview with Trump, Bartiromo said “This is disgusting and we cannot allow America’s election to be corrupted.” She told viewers in mid-December that “an intel source” told her that Trump had won the election. Bartiromo, officially designated as a news anchor, never returned to explain on what grounds the source made that statement. (Fox no longer publicly characterizes her as an anchor, which had rooted her in the news side of Fox, as opposed to an opinion host.)
In December 2020, as Trump’s opponents within the government were committing treason, Dobbs thought that Republican officeholders might have committed a crime if they upheld Biden’s victory. His departure from the network was hastily announced the day after another election software company, Smartmatic, filed its own $2.7 billion lawsuit against Fox for defamation surrounding similarly false accusations of fraud. The case is still in the beginning stages.
In recent weeks, Dominion has argued that Fox host Jeanine Pirro – a former district attorney and New York state judge as well as a Trump confidant – sits at the heart of its case. The existence of a Fox News producer’s email begging colleagues to keep her off the air because she was spreading lies about election fraud was first reported by NPR.
“We err on the side of speech because the more and more speech you have, the better chance of having people actually getting the opportunity to point out what’s right and what’s wrong,” attorney Erin Murphy, one of the senior figures on Fox’s defense team, tells NPR in an interview. “And that’s why we don’t suppress the speech that we don’t think is right.”
► When Shepard Smith attacked the “Trump administration’s ‘lies’” on air, Rupert emailed Scott and Fox News president Jay Wallace calling it “Over the top!” They should need to chat to him. In another instance, Lachlan Murdoch told Scott that then-correspondent Leland Vittert was “smug and obnoxious” when reporting from a Nov. 14 pro-Trump rally. Murdoch said the tone should be a celebration.
Murdoch is accusing a small media outlet of defamation. In the past, he has forced the site to pay out for highly critical commentary, and now he wants to use the suit to see if there are any changes to libel law in that country. Media outlets have less legal cover in Australia than they do here in the U.S.
For the time being, the fate of a $1.6 billion defamation lawsuit against Fox News will be determined by a plain spoken judge known for his poker face.
Eric M. Davis, who is a Delaware Superior Court judge, often tried to temper the emotions in the proceedings between the broadcasting giant and the voting technology company. Each side repeatedly has accused the other of acting in bad faith.
“If he were to be given a name in culture it would be Cool Hand Luke,” says the criminal defense attorney who has argued before Davis but has no involvement with the case. He doesn’t show any emotion in court and that is a good thing.
Smartmatic, Fox News and the First Amendment: A High-Cost Defamation Against Newsmax and the Laws of the Fourth Amendment
Smartmatic could have reasonably accused Newsmax of defaming the company in statements that weren’t named. He said Newsmax “seemingly wants the court to make a hyper-literal reading of every statement.”
Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Newsmax, Fox News and other places broadcasted those claims.
“Here, Smartmatic’s well-pled allegations support the reasonable inference that Newsmax’s reporting was neither accurate nor disinterested/unbiased,” Davis said.
The judge should not have had any of the Newsmax arguments, according to John Culhane, a professor at Delaware Law School.
While Culhane, an authority on defamation law, cautions against drawing too strong a conclusion from the Newsmax ruling, he says Davis “is very clear and he’s very step-by-step when it comes to the law.”
The president of the United States and his lawyers making allegations of voter fraud are more important to the news than any other event. We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected.”
Smartmatic also has sued Fox for $2.7 billion, but that suit is not as far along as Dominion’s. The New York state appeals court upheld the Smartmatic case against Fox News and several of its stars. No cause was stated in the ruling, which dismissed claims against Fox Corp.
Smartmatic attorney Erik Connolly said it would file an amended complaint that “details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch.”
Much like Fox’s lawyers in New York and Delaware, Newsmax’s attorneys similarly cite a legal privilege, known as neutral reportage, allowing it to present “unprecedented allegations without adopting them as true, so that the public could draw its own conclusions” about “a news story of extraordinary public interest.”
While he notes the First Amendment protects reporters in order to guarantee a “robust and unintimidated press,” he also states the “First Amendment is not unlimited.” He said a neutral reportage principle can’t protect a publisher who deliberately distorts statements to launch a personal attack on a public figure.
The stakes in the two cases are very high. Davis does not want to amplify his profile. (Indeed, his court declined to make a photo of him available for this story.) And the judge has repeatedly sought to ensure an air of comity around the proceedings, a hallmark of the Delaware legal bar.
In a Feb. 8 court hearing, Davis apologized to the rival legal teams after reading an email which he said was sarcastic.
He pinned it on his use of a pat phrase. “That is typical sarcastic thing that judges say?” Davis asked what he had been asked. “‘Tell me if I’m wrong…’ Which means, don’t tell me I’m wrong. It means that I’m making a statement. But that wasn’t why I was doing it.”
Fox News CEO Scott Murdoch: An Executive’s Dilemma about the Fox News Channel in the NLJT v. Sullivan Case
The network’s top primetime stars – Tucker Carlson, Laura Ingraham and Sean Hannity – texted contemptuously of the claims in group chats, but also denounced colleagues pointing that out publicly or on television.
In one of the messages revealed in the court filing, Carlson said that Sidney Powell, an attorney who represented the Trump campaign, was lying and that he had caught her doing so. Ingraham responded, “Sidney is a complete nut. No one will work with her. Ditto with Rudy [Giuliani].”
The legal filing showed how worried Fox News executives and hosts were after losing viewers to Newsmax, a smaller right-wing talk channel.
The core of the case is freedom of the press and freedom of speech, which were protected by the New York Times v. Sullivan case and are currently the subject of a lot of noise and confusion.
Why? There are the obvious reasons: Money. Power. It is Fame. These are universal human temptations. The answer goes deeper. Fox News became a juggernaut not simply by being “Republican,” or “conservative,” but by offering its audience something it craved even more deeply: representation. And journalism centered on representation ultimately isn’t journalism at all.
Murdoch has indicated that firings could be coming. Murdoch said in his deposition that Fox News executives who knowingly allowlies to be broadcast should be reprimanded. They should be reprimanded and possibly get rid of.
A person with direct knowledge of the matter told CNN that Heinrich was blindsided reading the details in the legal filing and was not aware of the efforts by top hosts behind the scenes to get her fired.
In another case, when host Neil Cavuto cut away from a White House press briefing where election misinformation was being promoted, senior Fox News leadership were told such a move presented a “brand threat.”
Murdoch wanted Fox News to say something supportive about Lindsey Graham, who is a Republican. Murdoch explained, “We cannot lose the Senate if at all possible.” In other words, Murdoch was directing the head of his talk network to help the GOP. This type of directive from an executive is a major scandal at an actual news network.
The Kaster, Vlassic, brochstein, and Brandon conspiracies of the Fox News Network: Are they really that bad?
Carolyn Kaster, Slaven Vlassic, Michael brochstein, and Alex Brandon all share the same photo.
Off the air, the network’s stars, producers and executives expressed contempt for those same conspiracies, calling them “mind-blowingly nuts,” “totally off the rails” and “completely bs” – often in far earthier terms.
“Good journalists do bad things, it’s remarkable how weak ratings make that happen”, Bill Sammon wrote in a private letter to the Washington Managing Editor. The network executives were upset with the hit to Fox News’ brand. Yet there was little apparent concern, other than some inquiries from Fox Corp founder Rupert Murdoch, over the journalistic values of fairness and accuracy.
In a separate filing, also released to the public on Thursday, the cable network’s attorneys say Dominion’s ten-figure request for damages is designed to “generate headlines” and to enrich the company’s controlling owner, the private equity fund Staple Street Capital Partners.
Dobbs, Fox, and Sammon: Why did President Trump Call into Fox News on January 6, 2011? The Fox Corp. Defamation Case
The network’s political anchor sent a message to a friend that there wasn’t any evidence of fraud just days after the election. None. Allegations – stories. There’s a picture of a dog on a social media site. Bulls—.
Sammon declined to speak on the terms of his departure, which was termed a retirement by Fox News.
The defamation case against the company was brought after Donald Trump tried to call into Fox News, but they refused to put him on the air.
A source familiar with the work of the panel that investigated theJanuary 6 attack said the committee did not know that Trump made the call.
The panel sought to piece together a near minute-by-minute account of Trump’s movements, actions and phone calls on that day. His newly revealed call to Fox News shows some of the gaps in the record that still exist, due to roadblocks the committee faced.
The afternoon of January 6, after the Capitol came under attack, President Trump called into Lou Dobbs show to try to get on the air.
“But Fox executives vetoed that decision,” Dominion’s filing continued. “Why? Not because of a lack of newsworthiness. January 6 was an important event by any measure. President Trump not only was the sitting President, he was the key figure that day.”
Dominion’s legal team is presenting only the evidence it believes will propel its case; Fox Corp. is arguing that the parent company and its top executives are wrongly being held responsible for reporting on the baseless assertions of a president and his advisers.
“When damages get into the billions, with a B, that can be an existential threat to a journalistic organization — even one as lucrative as as Fox,” said Lyrissa Lidsky, a constitutional law professor at the University of Florida.
David Zurawik is a professor of practice at Goucher College. For three decades, he was a media critic at the Baltimore Sun. His opinions are his own in this commentary. View more opinion on CNN.
The evidence collected in the defamation case against Fox was very large, according to Ronll Andersen Jones, a media law scholar at the University of Utah.
Tushnet has practiced and taught law for many years, and she has never seen such damning evidence before a defamation suit. Tushnet said he didn’t recall anything comparable to this. “Donald Trump seems to be very good at generating unprecedented situations.”
According to David Korzenik, who teaches First Amendment law, the filing showed that the case against Fox News has serious teeth.
“The dream for a plaintiff’s attorney is what Dominion claims to have here,” Jones said, “smoking-gun internal statements both acknowledging the lie and deciding to forge ahead with perpetuating it.”
The Murdochs and the Fox News Channel: Investigating Democrat Campaigning for Election Laundering, Sensitivities and Discrimination
Fox is nowhere near the news part of its name anymore. It still presents itself as a news channel in name using the tropes of anchor desks, correspondents and panels of guests.
Murdoch tried to distinguish between the two in his sworn remarks. When asked whether Fox News embraced the idea of election fraud, he pointed instead to his own stars: “No. Some of our commentators were endorsing it.”
Murdoch admitted in a deposition that some of his top hosts were pushing election lies to his audience, as revealed in a Monday filing by Dominion Voting Systems.
► Murdoch sent an email to Col Allan of the New York Post, describing the election lies being pushed by Trump.
► Murdoch gave Jared Kushner “confidential information” about then-candidate Joe Biden’s ads “along with debate strategy” in 2020, the filing said, offering Trump’s son-in-law “a preview of Biden’s ads before they were public.” At most news organizations, this type of action would result in an investigation and disciplinary measures.
According to the documents, the business model of the channel is not based on telling the audience what to expect, but on feeding them content that keeps them watching and happy.
Asked whether he could have told Fox News’ chief executive and its stars to stop giving airtime to Rudy Giuliani — a key Trump campaign attorney peddling election lies — Murdoch assented. “I could have,” Murdoch said. “But I didn’t.”
Emails and other communications introduced into the case by Dominion reflect deep involvement by the Murdochs and other Fox Corp. senior figures in the network’s editorial path.
“I’m a journalist at heart,” the elder Murdoch, who is just two weeks shy of his 92nd birthday, said in his deposition. I like to be involved in those things.
He had been adamant about defending Fox News for calling the state of Arizona for Joe Biden on election night. Murdoch testified that he could hear Trump shouting in the background as the then-president’s son-in-law, Jared Kushner, told him the situation was “terrible.”
Scott forwarded his recommendation to the top executive over prime-time programming, Meade Cooper. Along with another executive, she canceled Pirro’s show that weekend over fears that the “guests are all going to say the election is being stolen and if she pushes back at all it will be just a token,” according to the filings.
By Nov. 13, Raj Shah, a senior vice president at Fox Corp., was advising Lachlan Murdoch, Scott and Dinh of the “strong conservative and viewer backlash to Fox that we are working to track and mitigate.” He said that the ratings of Fox News had dropped to the lowest levels he had ever seen.
Ryan did some things, but Sonnenfeld said that wasn’t enough. In fact, he said Ryan’s “quiet dissent” was “cowardly, ineffective, and immoral,” and pointed out that board members have certain responsibilities under corporate governance law in Delaware, where Fox is incorporated.
Just let her know,” he said to Lachlan. Fox News, which called the election correctly, is pivoting as fast as possible. It might seem easy to lead our viewers but that’s not the case.
On Jan. 26, Tucker Carlson had Lindell on his show. Rupert Murdoch told Dominion’s attorneys he could stop taking money for MyPillow ads, “[B]ut I’m not about to.”
“This is one of the most devastating depositions that I’ve ever seen,” CNN legal analyst Norm Eisen said Monday. “When you go beyond reporting and your chairman admits there was endorsement, then that opens you up to liability under the actual malice standard.”
The evidence so far looks like Fox was aware of the truth and decided to go with an alternate narrative.
Murdoch, meanwhile, conceded that Sean Hannity, Jeanine Pirro, Maria Bartiromo, and former host Lou Dobbs promoted falsehoods about the presidential contest being stolen.
Who is he? Rupert Murdoch is a media magnate and the Fox News Channel’s controlling owner (as well as one of the inspirations for the protagonist in HBO’s Succession).
The documents show that the board failed to prevent Fox executives from engaging in illegal activities, as well as warn of a possible SEC investigation into deceptive practices of the board.
The removal of high-ranking personnel such as Fox News chief executive Suzanne Scott should be on the board’s agenda, according to Sonnenfeld, who has advised hundreds of CEOs and recent US presidents.
Sonnenfeld told CNN in an email that the board should remove officials who peddle known election lies, since they damaged the outlet’s reputation.
“If the board does not act appropriately,” Sonnenfeld added, “it shows a failure of management oversight and jeopardizes their own directors and officers insurance protection with such gross conscious failure of diligent management oversight.”
“The duties of loyalty and diligence are NOT to the management but to the owners,” Sonnenfeld said. Paul Ryan, along with every other director, are guilty of sleaze because they silently went along with it.
Nell Minow, vice chair at ValueEdge Advisors and expert on corporate governance, told CNN she agreed with everything that Sonnenfeld said. Minow said that board members need to contact their largest shareholders to hear suggestions for new independent directors.
Rupert Murdoch and the Semafor Editor-in-Chief Sue Sue Smith: The Fate of a Sun King
The Murdochs “are certainly setting Suzanne Scott up to take the fall for this,” Ben Smith, the Semafor editor-in-chief who writes a Sunday night media column, said Wednesday.
Murdoch has faced a lot of embarrassing and serious matters in his media empire. The News of the World was found to have engaged in phone hacking. Ailes was accused in a lawsuit of sexual harassment. Bill O’rone was caught up in a sexual harassment scandal.
Murdoch made decisions about severing ties with top personnel. One source who used to work in Murdoch-world said Wednesday that his pattern has been to throw lots of money at it to make it go away. And cutting ties with Scott would appear to be one of the easier ousters for Murdoch to execute over the course of his decades at the helm of one of the world’s biggest media empires.
Folkenflik believes that Murdoch and companies have tended to try to pay early and quietly to make things go away, rather than ignore them thinking they are so big they can ride things out. When everything comes to a head they try to make the wound as small as possible.
Folkenflik said that if he threw Scott, he would only do it because he wanted to cauterize the wound. “That’s his record. That’s what he does. It can be editors. It could be someone in charge. It may be stars. He is not throwing himself over the side.
“Everyone who takes a senior executive position under Rupert Murdoch knows that is the case, that is the ultimate fall position,” Folkenflik explained. “They understand that’s part of the job. You’re very well paid. It can be a somewhat glamorous life. It is a part of the equation if you fall out of favor with the sun king.
Scott’s fate will be seen by us. Fox isn’t offering any public support for her. When I reached out to Fox spokespeople on Wednesday asking for comment, the company declined.
When Fox News Meets Fox News: The Case Against Murdoch, MyPillow’s CEO Susan Scott and the Establishment of False Preferences
Ailes, a key member of the media team that helped put Richard Nixon in the White House in 1968, saw it as an outlet that could be used to promulgate and amplify a conservative viewpoint. From day one, it was about propaganda – not information. As a counterbalance to Ailes’s liberalism in network TV, public radio and the top newspapers in the country, it was created. He cleverly referred to the channel as news, but it was always about politics and ideology first.
Now, it’s all about right-wing politics (the hotter and nastier, the better) and money. Murdoch mentioned why he allowed MyPillow’s CEO to promote election conspiracy theories on Fox in his description.
It has become much deeper culturally. A world view, lifestyle and a warm bath of false nostalgia is what Fox News is all about, and it’s what some of the older adults feel is left behind by the changes in American life. They are told by Fox that if they are struggling, it is not their fault. The Democrats in Washington give the country to immigrants and minorities as illogical and false, as money is coming out of the viewers’ pockets.
You might think some audience members would be so angry that they would stop watching the channel.
As disgusting as some of us think Murdoch is, my relatives are not going to change their viewing habits because of it. And I suspect most other viewers who have let Fox News that far into their lives won’t be either.
“How often do you get ‘smoking gun’ emails that show, first, that persons responsible for the editorial content knew that the accusation was false, and also convincing emails that show the reason Fox reported this was for its own mercenary interests?” says Rutgers University law professor Ronald Chen, an authority on Constitutional and media law.
Top executives, including Murdoch and Fox News CEO Suzanne Scott, told one another they could not bluntly confront their viewers with the facts because that could alienate them further.
Even with that record, set out with voluminous documentation, some media lawyers say Fox’s attorneys may be right in predicting that a loss would constrict the media’s freedoms.
Kirtley, a former executive director of the Reporters, believes that it is a slippery slope to say that Fox is a group of liars, and that wild speculations should not be reported.
Brennan also argued Americans should have latitude to get some things wrong in talking about public officials and politics, in order to ensure free and robust debate.
Defamation and Media Libel Laws: If Fox News Losses Itself, The New York Times Can Easily Lose It
Two current Supreme Court justices, Neil Gorsuch and Clarence Thomas, have indicated they would be open to making it easier for plaintiffs to prevail in defamation suits. Before joining the court, Elena Kagan wrote a piece about the potential for protections for the press to be too strong.
The idea of “actual malice,” Murphy says, requires Dominion to prove specific people directly involved with the broadcasts knew the statements they aired were wrong. For instance, Murdoch’s sworn statements that he had dismissed the claims of election fraud as bogus, and affirmed under oath that some of his star hosts had nonetheless endorsed them publicly, carries no legal weight, she says.
The president and his lawyers were doing their jobs and it had to be seen as a story, regardless of what the allegations were. She invoked the “safe ground” of neutral reporting, telling her audience what other people are saying.
Yet Fox News anchors Bret Baier and Martha MacCallum also were deeply concerned about the loss of viewers and deliberated about how to win them back, evidence uncovered by Dominion’s attorneys and separate reporting by the New York Times’ Peter Baker show.
When news outlets do lose defamation cases, they often result in retractions or apologies and settlements while they’re still on appeal. The two most high-profile defamation cases resulted in different outcomes.
In 2017, Rolling Stone magazine settled separate cases filed by a University of Virginia dean and a campus fraternity after a collapse of standards in reporting on what turned out to be a source’s fabricated account of campus rape.
A year ago, The New York Times won a case against Sarah Palin, who was wrongly linked with a mass shooting months later.
Source: https://www.npr.org/2023/03/06/1161221798/if-fox-news-loses-defamation-dominion-media
Dominion case as a positive exception to the generalized R’eszler-Maskoff criterion
“The Dominion case is such a strange case it provides an exception to the general rule,” Goodale says. We hope we don’t see such a weird case again.