Since the news is full of reporting of, and commentary about, the lawsuit by Dominion Voting Machines against Fox News for defamation of character, this question was posted to Facebook a day or so ago:
“Should news organizations have free speech protections from tort claims if they knowingly distort facts?“
This produced a lengthy and thoughtful analysis of the problem, which I will quote. Note that my reply follows, but, I have interspersed some remarks into the comment by BL:
BL: We need to have a lot of latitude in protection for free speech. Certainly, offensive speech should not be restricted. In fact, it is offensive speech that has the most need to be protected. Obscene content is another matter, but only the most extreme content should be restricted. Also, it must be obvious that political speech should not be restricted. It also must be quite protected. Expressions such as art and performance art and entertainment must be protected. So what should not qualify as free speech? (This is a difficult issue to clarify, especially as regards obscene content. Justice Stewart Potter, in a 1964 case, said “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” HERE is a more detailed discussion of the issue… Because obscene content is rather subjective, restricting it is a very narrow and uncertain path to follow)
Speech and expression which is dangerous or that fundamentally interferes. Examples are speech related to inciting or organizing criminal activity and expression which impedes vital actions risking health, safety, or basic government processes such as courts, and legislatures. Intentional lies which cause harm or create risk also should not qualify as free speech. (The SCOTUS agrees with this definition, and, has ruled, in addition, that “Fighting Words” are not covered either)
I don’t think Fox News has any responsibility for inciting the Jan 6th violence or inciting the next possible coup attempt based on broadcasts I’ve seen. Yes, I’m very much offended that Fox News seems to love the idea of the USA becoming an authoritarian dictatorship, but I would not want to see such speech blocked. My hope would be that Americans would wake up and stop watching Fox.
On the other hand, it sure seems like Fox News lied a lot about Dominion. Because Dominion is a major maker of voting equipment in the world and the world looks to the USA as an example of democracy (or did at least) Dominion suffered real harm. It does seem like $1.6B is reasonable.
The Fox News sources are horrible about this election fraud issue. Even a high school newspaper should be expected to do a better job checking sources. “We found a crazy person that talked to another crazy person and decided to put them on the air” is a poor defense. That’s especially true when the lies are repeated over and over again. (This is very true. Recent evidence uncovered shows that Sidney Powell got her “evidence” of voter fraud and a stolen election from a single source, who, states that she has “had the strangest dreams since I was a little girl….I was internally decapitated, and yet, I live….The Wind tells me I’m a ghost, but I don’t believe it.” HERE is an article delving further into this chaotic fantasy world.)
If it’s supposed to be entertainment similar to SNL then Fox News should have included the source details. I think a good argument could have been made for protected free speech satire if Fox News had broadcast that the only supporting evidence was a person who dreamed and/or heard voices in the wind. If they ran that kind of clip over and over again I would agree that it should be protected speech just like SNL satire is protected.” (Satire and humor is, indeed protected speech. However, Fox has, from day one, presented itself as a valid news source, practicing Journalism. I address this in greater detail below)
My observations and reply are as follows: While it is certainly tempting to reply “no” to the original question, I think that “yes” is preferable (and it does pain me to say that. Mr. BL. makes some very valid points in his thoughtful comment. I do have a slightly different viewpoint on the part played by Fox in the events of Jan 6. So, let us dive into it.
- The first issue that comes to mind is the answer to this question: “What standards should a NEWS organization be held to?” There is an excellent Wikipedia essay that addresses what minimum standards should apply. As long as I have been aware of the issue, I have held to the standard that an organization that calls itself a “News Organization” should adhere to some basic standards of accuracy, ethics, objectivity, truthfulness and honesty. Now, in the very small amounts of time that Fox actually reports the news, they do come fairly close to the standards laid out in the article I linked to. However, even then, their reporting often lacks objectivity.
- The rest of their broadcast time is filled with commentators and analysts, who, even if they claim to be journalists, are so far away from those standards that even the James Webb telescope could not find them. They are NOT Journalists, but rather propagandists pushing a very Right-Wing view of reality. This view depends purely on emotional reactions, outrage, and anger. It rarely has any actual evidence included to support their claims. Another piece of evidence as to their true nature is the fact that here, in America, a Federal judge has ruled that anyone who listens to Tucker Carlson should have to understand he never sticks to the truth, and is purely entertainment. This, by the way, is made an even stronger case because the lawyers from Fox agreed with and supported the judge’s ruling.
- As for Fox’s role in the Insurrection of Jan 6, I agree, in general, that none of the on air personalities at Fox called for an attack on the Capitol. At least, so far, there is no evidence of this happening. However, in its role as the propaganda outlet of the Republican Party, the organization amplified the false claims of a stolen election spewed by #45, and pushed the idea that that Democrats had engaged in underhanded actions to take the election away from #45. This pushing lies continued through 2020, and, even continues today. This unquestioning broadcast ensured that the cultists in the insurrection movement were continually bombarded with the same lies, programming them to take up arms on the 6th. This supported four years of #45 pushing the idea that the voting systems in America were broken, and the only way he could lose the 2020 election was if serious fraud went on, keeping this Big Lie fresh in their minds, and continually blinding them to alternative, more truthful realities. HERE is a discussion about these false claims made by Fox Anchors, and, the half-hearted job done, when called on the lies, to deny them. HERE is a fairly objective analysis of the lies, and possible motivations for Fox’s actions as 2020 came to a close.
Should this expose Fox to criminal and civil penalties, though? My interpretation is that Fox has, without question, engaged in disseminating lies to push an agenda as well as “Fighting Words” to escalate the possibility of violence; They have failed to live up to the journalistic standards that should be at least the minimum levels of honesty, accuracy and ethical behavior to be treated as a news organization; They have failed to engage in even the most rudimentary fact checking, as well as deliberately NOT offered any push back on the lies they were spewing. In my view this makes the organization an unindicted co-conspirator in the events of Jan 6th. I doubt that they would be subject to criminal prosecution, because they are in the grey shadow of that line, and that would be a very difficult case to win. I think, though, that a civil case could be brought against them and would have an excellent chance of success, based on current information.
I will say that I would like to see some sort of punishment dealt out for their support of lies over truth. Whether that is loss of their broadcast license, or fines imposed by the FCC does not matter that much to me…
God Help Us All!
Be safe; wear your mask; wash your hands; social distance; and get vaccinated.
- Fox filled their broadcast streams with images of #45, making those insane claims about voter fraud, etc. This was, at least until the very last moments of the administration broadcast without any fact checking or analysis. And, of course, while it appears from current evidence that many of the on-air personalities did not believe for a moment the claims were true, they would, day after day, push these same lies, supporting #45’s claims, and demonizing Democrats. This demonstrates, again, they are propagandists, and not journalists. This also means that their words cannot be trusted.
- Fox may not have caused the insurrection, but their actions clearly supported the speech that led to it, and, what is possibly worse, have left a significant number of citizens with the belief that the existing election systems are not to be trusted. I shall not discuss how wrong this attitude is here, as it is trivial to use Google to find discussions, backed up with solid evidence debunking those claims. My current feeling is that they might not have help light the fires of insurrection that shook our country two years ago, but they sure did bring gasoline to it. This continues today, with the company pushing the lie that the events of Jan 6th were not an insurrection, and, doing their best to attempt to produce evidence that undercuts what many American’s saw on that terrible day.
Now then…should they be free to broadcast blatant lies? Per my previous comments, my belief is “yes, but not without consequences”. I would like to see the FCC pull their broadcast license, at the very least. I kind of regret that the FCC has no power to regulate streaming content, but, that is reality right now. I would like to see regulations put in place that require a so-called News Organization to adhere to basic, journalistic standards when reporting the news, AND, clearly label commentary and opinion when they broadcast it. I believe that the country as a whole has been injured by their actions, in that the destruction of trust in the election system is a huge step towards allowing a fascist state to take over control. As such, if it were possible, I would like to see them sanctioned…and perhaps shut down. However, I also want that to NOT happen until the Dominion lawsuit has finished up, and, the penalties have been paid
Thank you. It was good to read an opinion, recap your own free speech, on this subject. So many people are so emotional, and there is a huge difference between the NEWS and SNL. The “I was just kidding” doesn’t work even in kindergarten.