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A federal judge’s civil contempt ruling threatens a free and independent press

Photo (cc) 2012 by Adam Katz

A federal judge reminded us all this week that journalists have no First Amendment right to protect their confidential sources. What is disturbing about the case at issue, though, is that it involves a civil case brought against the government rather than an alleged crime.

According to Alanna Durkin Richer and Eric Tucker of The Associated Press, investigative reporter Catherine Herridge must pay a fine of $800 a day, although that fine will not be imposed until she has an opportunity to appeal. The case involves a Chinese American scientist who was investigated by the FBI but not charged with any wrongdoing. That scientist, Yanping Chen, is suing the government and demanding to know who leaked damaging information about her to Herridge.

Herridge reported a series of articles about Chen for Fox News in 2017 and was recently laid off by CBS News.

Journalists in 49 states enjoy some level of protection in being required to give up their confidential sources. The two exceptions are Wyoming and the federal system. But even federal judges generally weigh the importance of the information sought against the chilling effect created by forcing reporters to break promises they made to their sources. A breach of national security resulting in criminal charges, for instance, would be considered a much higher priority than Chen’s civil lawsuit under the Privacy Act

Nevertheless, U.S. District Judge Christopher Cooper, according to the AP account, ruled that though he “recognizes the paramount importance of a free press in our society,” the legal system “also has its own role to play in upholding the law and safeguarding judicial authority.”

Earlier this year, the U.S. House passed a bill on a bipartisan basis that would create a strong federal shield law called the PRESS Act. The bill awaits an uncertain fate in the Senate, according to Gabe Rottman, writing for the Reporters Committee for Freedom of the Press.

In any case, it strikes me that demanding that a reporter give up her confidential sources so a plaintiff can advance her breach-of-privacy lawsuit against the government is an abuse of the idea that the press ought to be free and independent, even if it doesn’t specifically violate the First Amendment.

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Fake news from Fox stirs unfounded fears of a terrorist attack

Photo (cc) 2015 by Johnny Silvercloud

Authorities say it will be some time before we know exactly what happened in a fatal one-car accident on Wednesday at the Rainbow Bridge connecting the U.S. and Canada at Niagara Falls. But it’s certainly not too soon to call out Fox News’ characteristically loathsome behavior.

First, here’s what we know. Aaron Besecker of The Buffalo News reported on Thursday that there were no explosives and no signs of terrorist activity. A couple was heading across the bridge after stopping at a casino. They had tickets to a concert in Toronto that night. Suddenly the car started moving at a high rate of speed, flew over an eight-foot bridge, and burst into flames, killing both occupants. By all credible accounts, it appears to be a personal tragedy, not an attack of any kind.

But that’s not what Fox News told its viewers. Throughout Wednesday, the right-wing network’s hosts told viewers that the car was packed with explosives and may have been occupied by Islamist terrorists. As CNN media reporter Oliver Darcy wrote in his daily newsletter, “Fox News recklessly smashed the panic button and stoked fear from coast-to-coast.” Darcy added:

Fox News had made a massive error. The type of error that should have given network brass and the reporters involved a giant pit in their stomach. But unlike respected news organizations that acknowledge when mistakes are made, Fox News has refused to issue a correction. Instead, the network stealth edited its online story, with no editors’ note of any sort.

Earlier this year, Fox paid $787.5 million to settle a libel suit brought by the Dominion voting machine company after Fox’s hosts had repeatedly promoted the lies of Trump associates that the machines were programmed to steal the 2020 election from Donald Trump and hand it to Joe Biden. It’s clear that Fox executives have learned their lesson — that is, if you’re going to make things up, make sure there are no identifiable plaintiffs who can sue you.

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Does Fox News lead or follow its audience? Yes.

Brian Stelter. Photo (cc) 2017 by nrkbeta

Does Fox News lead or follow its audience? I’ve long thought it was both.

During the 2015-’16 presidential campaign, Fox tried to take out Donald Trump, as when then-Fox host Megyn Kelly confronted Trump with his misogynistic remarks at the first Republican debate. It didn’t work, and eventually Fox got with the program. Then, after Joe Biden defeated Trump in 2020, Fox tried to play it straight, more or less. Famously, it was the first media outlet to call Arizona for Biden, a state that ensured his victory. But when Fox’s audience started stampeding to farther-right cable channels like Newsmax and OAN, Fox reversed itself and embraced Trump’s lies so tightly that it cost them $787 million in a libel settlement.

Brian Stelter makes that argument in an interview with Tom Jones of Poynter. Stelter, who’s written a new book about Fox called “Network of Lies,” tells Jones that most Fox employees don’t much care about politics. Instead, they are motivated by the usual: making a living. Here’s an excerpt:

For most, it’s just a job, not a calling. Some producer and director types truly believe in the Trump agenda and will stop at nothing to see him reelected. But most are just trying to make good TV. They definitely aren’t losing sleep about Fox’s coarsening of the culture or Trump’s brainwashing of the base.

I write in the book that rank-and-file staffers like to gossip about hookups between hosts and ratings rivalries between shows. On the occasions when I steered my source chats in a more serious direction, toward the impact of Fox-fueled disinformation on society and democracy, staffers turned cagey or dismissive. I heard some predictable whataboutism and rants about the flaws of other networks.

Bottom line: I think introspection and accountability are in short supply at Fox, a tone that’s set at the top, by Rupert, who advised Fox News Media CEO Suzanne Scott years ago to “ignore the noise.”

You should read the whole thing. And by the way, although Stelter probably isn’t interested, I wonder if it might be possible for new CNN head Mark Thompson to lure Stelter back now that the brief, unlamented Chris Licht era is over. Stelter appeared on CNN last week to plug his book, so who knows? I wouldn’t expect to see Stelter return to his old job, which is being ably filled by Oliver Darcy. But Stelter is among the very best media reporters in the business, and it would be great to see him return in some capacity.

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Chris Licht understood what was wrong with CNN but had no idea of how to fix it

Photo (cc) 2010 by CNN Center

I started out writing a much longer post about Tim Alberta’s astonishing 15,000-word takedown of CNN’s now officially embattled CEO, Chris Licht. But I decided there’s really no need. You can read Alberta’s story for yourself along with Jon Allsop’s analysis for the Columbia Journalism Review of what it all means, Brian Stelter’s article at New York magazine on the chaotic aftermath inside CNN, and Benjamin Mullin’s story in The New York Times on Jeff Zucker, Licht’s bitter and scheming predecessor.

Rather than add to that, I want to focus instead on one small point that shows Licht sort of/kind of had the right idea. While speaking to a student group, Alberta writes, “Licht sought to differentiate CNN from both networks — slamming Fox News for being a duplicitous propaganda outfit, and rebuking MSNBC for trafficking in hysteria.”

Licht has been talking this way from the moment he ascended to the top of CNN, and it’s why I was willing to cut him some slack despite misguided decisions such as firing Stelter, the network’s excellent media reporter. The problem, it seems, is that he understood CNN’s problems correctly but superficially and thus wasn’t really able to execute.

CNN didn’t need to move from the left back toward the center or to be more polite to authoritarian right-wingers, as Licht seems to think. Rather, it needed to readjust the balance between opinion and reporting.

Of course, it’s fair to ask who is really calling the shots at CNN — Licht or his overlords, David Zaslav, the head of Warner Bros Discovery, and right-wing billionaire John Malone, who owns a significant chunk of the company. It all fell apart when CNN’s town hall event with Donald Trump turned into a disaster in exactly the ways in which everyone had predicted — with Trump simply yelling lies in the face of his well-prepared but overwhelmed host, Kaitlan Collins, while the Trumper crowd hooted and hollered off stage.

You may have heard that another media executive, David Leavy, has been brought in as CNN’s chief operating officer, a significant wing-clipping for Licht, who has presided over a steep decline in ratings, revenue and morale. It seems hard to believe that Licht can survive the humiliation, much of it self-inflicted, that he endured in Alberta’s piece.

It’s equally hard to know where CNN should go from here. A return to Zucker’s clown show (Chris and Andrew Cuomo, anyone?) would hardly restore the reputation of a still-great news organization whose on-air product often fails to match the excellence of its journalists.

CNN is just as much in need of a reset today as it was when Licht took over.

Earlier:

Tucker Carlson had to go because his racist text cost Rupert Murdoch money

Trump supporters rally following the Jan. 6, 2021, insurrection.

Photo (cc) 2021 by David Geitgey Sierralupe

Who could have imagined that Tucker Carlson, a white supremacist in public, is also a white supremacist in private? The New York Times has unearthed what it claims is the text message that got Carlson fired from Fox News. It’s from Jan. 7, 2021, the day after the insurrection. Here it is in full:

A couple of weeks ago, I was watching video of people fighting on the street in Washington. A group of Trump guys surrounded an Antifa kid and started pounding the living shit out of him. It was three against one, at least. Jumping a guy like that is dishonorable obviously. It’s not how white men fight. Yet suddenly I found myself rooting for the mob against the man, hoping they’d hit him harder, kill him. I really wanted them to hurt the kid. I could taste it. Then somewhere deep in my brain, an alarm went off: this isn’t good for me. I’m becoming something I don’t want to be. The Antifa creep is a human being. Much as I despise what he says and does, much as I’m sure I’d hate him personally if I knew him, I shouldn’t gloat over his suffering. I should be bothered by it. I should remember that somewhere somebody probably loves this kid, and would be crushed if he was killed. If I don’t care about those things, if I reduce people to their politics, how am I better than he is?

Fox executives were terrified that the message, which Carlson had sent to one of his producers, would be introduced at trial by Dominion Voting Systems as part of the company’s libel case against Fox. That fear contributed to Fox’s decision to settle the case for nearly $800 million.

In other words, Carlson had to go because he cost Rupert Murdoch money.

But his emails: A working theory of why Tucker Carlson was pushed out by Fox

Tucker Carlson. Photo (cc) 2022 by Gage Skidmore.

It’s going to be a while — if ever — before we know why the loathsome white nationalist Tucker Carlson and his ratings-obsessed enablers at Fox News parted company.

Carlson was far from the biggest on-air liar in claiming that Dominion Voting Systems had rigged the 2020 presidential election for Joe Biden. As Josh Marshall puts it, “If you looked at the material Dominion had assembled the most damning stuff was about Bartiromo, Pirro, Dobbs. Very much the B Team. As odious as he may be, Carlson is quite good at the ‘just asking questions’ shtick.”

Carlson’s internal emails, though, were incredibly embarrassing and damaging, proving beyond a doubt that no one inside Fox believed claims by Donald Trump and his hangers-on about voting-machine fraud. My insta-theory is that Rupert Murdoch fired Carlson in a blind rage after Dominion extracted a nearly $800 billion million settlement.

For those of you who are hoping for a kinder, gentler Fox, you may recall that the firings of Roger Ailes and Bill O’Reilly a few years ago led to similar dreams. Instead, Fox took a sharp turn from the right toward the far right. I’m not sure a similar move now is even possible unless Carlson is replaced by, say, Alex Jones or Steve Bannon.

Carlson is the big media news of the day, but let’s not overlook Don Lemon, the hapless CNN host who was fired today. Lemon has been on thin ice since making some cringe-worthy sexist remarks on air, but he deserved better than (as he claims) to be cut loose without any communication from CNN management.

For Carlson, it’s been a long, strange devolution from principled conservative to openly racist hate-monger. In 2019, I wrote a piece for GBH News detailing my own experience with Carlson, including a convivial lunch at The Palm in Washington more than 20 years ago. I’ve occasionally wondered what happened to that guy. Maybe he does, too.

Despite the letdown, Tuesday was a very bad day for Rupert Murdoch and Fox News

Rupert Murdoch. Photo (cc) 2015 by the Hudson Institute.

For those of us who had hoped that Fox News would be publicly humiliated in the courtroom, Tuesday’s announcement that a settlement had been reached was disappointing but not surprising. The purpose of lawsuits is to resolve disputes, not to provide justice.

And what a settlement Dominion Voting Systems got: $787.5 million, or about 19% of the cash or “cash equivalents” held by Fox Corp. at the end of 2022, according to The New York Times. No, not even Rupert Murdoch has that kind of money sloshing around in a spare pants pocket. It also amounts to half the $1.6 billion in damages Dominion said it had suffered as a result of on-air lies that the company’s machines had switched votes from Donald Trump to Joe Biden in the 2020 election.

Still, it would have been lovely to watch the 92-year-old mogul take the stand and be confronted with internal communications that showed he and other Fox executives and talk-show hosts knew Donald Trump and his supporters were lying about the election being stolen by Dominion and other dark forces but promoted those lies anyway. I also wish that Fox were being forced to apologize for its lies, over and over again, but that was probably never in the cards.

On the other hand, Fox News faces more legal troubles, including a $2.7 billion lawsuit brought by yet another voting technology company, Smartmatic. So unless Fox settles that case as well, this saga is a long way from being resolved. Good.

Some media observers were breathing a sigh of relief that the First Amendment protections for libel would not be put to the test. I’m not among them. As I wrote earlier, this was really a textbook example of “actual malice” — that is, publishing or broadcasting false information despite knowing that it’s false, or demonstrating reckless disregard for the truth. It was not a “landmark case.” I talked about that before the settlement was announced with WBZ-TV (Channel 4) political analyst Jon Keller, who provides a good overview of Tuesday’s events and what they mean.

I’ll close with a post on Mastodon by M.S. Bellows Jr., a lawyer and commentator who gets to the heart of it in a way that’s both illuminating and entertaining:

I’m a former trial lawyer, former prosecutor, and current mediator. I have both represented and sued some of the largest companies in the world. I am very experienced, and VERY good, at what I do.

At trial, Dominion would not and could not have received an apology. Period. The vanishingly rare circumstances in which a court could order a retraction do not exist here.

At trial, Dominion would not have received $787.5 million, which is 45x its highest annual earnings. If a jury awarded it that much, the court almost certainly would have reduced it on remittitur.

This is a superb and stunning settlement. Dominion has hurt Fox badly, exposed Fox’s lies, and done the American public a massive service. If you feel otherwise, fine – but that’s all it is: a feeling. Factually, you are incorrect, and to soothe your feelings you should take recourse to bourbon or cannabis, not social media.

Thank you.

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Landmark case? In fact, Dominion’s libel suit against Fox News is pretty simple

White van labeled Fox News Channel

Photo (cc) 2011 by (vincent desjardins)

We’ve been told many times that the Dominion voting machine libel suit against Fox News could be a “landmark case.” I want to push back against that.

If Fox wins, then yes, it will be a landmark case, but that particular outcome seems unimaginable. That’s because we know from Fox’s own internal communications that top executives and hosts knew they were lying when they repeated the claims advanced by Donald Trump and his minions that Dominion’s machines stole votes from Trump and awarded them to Joe Biden.

In order to show libel, a plaintiff must prove that a media outlet published or broadcast false, defamatory statements about them. The Supreme Court’s 1964 Times v. Sullivan case added a third element for public officials who wish to win a libel suit: “actual malice,” which is defined as a knowing falsehood or reckless disregard for the truth. Several years later, the actual malice standard was extended to public figures, including a corporation such as Fox.

This really shouldn’t be difficult. In the unlikely event that Fox wins, it would mean that actual malice as a legal concept no longer exists. In reality, Dominion v. Fox is a pretty ordinary case in the sense that it presents no new issues at all. Fox defamed Dominion with false claims and, in private conversations, admitted that they were lying. The network’s defense will be that it was merely reporting newsworthy statements — but it didn’t just report them, it promoted them, and its hosts agreed with them on the air.

It is, in a way, the flip side of Sarah Palin’s 2022 libel case against The New York Times, when it was obvious to any observer that the Times had simply made a careless error in claiming that the man who shot then-congresswoman Gabby Giffords and several others had been incited by a map put together by Palin’s policial action committee showing gunsights over several congressional districts, including Giffords’. In fact, there was no evidence that the mentally ill shooter was even aware of such a map. There was no actual malice, and Palin lost.

It’s hard to imagine that any combination of money awarded to Dominion as well as punitive damages will add up to any more than a rounding error for Fox. What I’d really like to see is for the jury to require Fox to apologize in prime time, over and over, for lying to its viewers. How about nothing but apologies for a week? Now, that would be some must-see TV.

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Why relevations that Fox stars knew Trump was lying may boost Dominion’s libel suit

Tucker Carlson. Photo (cc) 2018 by Gage Skidmore.

The reason that Sarah Palin lost her libel suit against The New York Times was that the Times’ extraordinarily sloppy editorial page editor, James Bennet, was extraordinarily sloppy. (In an unrelated matter, Bennet left the paper after it was revealed that he hadn’t even bothered to read an op-ed piece by Sen. Tom Cotton suggesting that violent protesters be gunned down in the streets.)

Under the Supreme Court’s 1964 Times v. Sullivan standard, a public figure such as Palin can’t win a libel suit unless she can show that false, defamatory information about her was published with “actual malice” — that is, it was published in the full knowledge that it was false, or that the publication strongly suspected it was false.

That’s what makes the latest revelations in Dominion Voting Systems’ libel suit against Fox News so mind-boggling. As The New York Times reports, internal communications show that Fox stars such as Tucker Carlson, Sean Hannity and Laura Ingraham were fully aware that Donald Trump was lying about his claims that the 2020 election had been stolen. Yet they boosted those lies anyway, whose voting machines were a principal target of Trump and his allies. Dominion claims that Fox damaged its reputation and harmed its business.

As the Times story notes, Fox doubled down on the Trump camp’s claims after initially accepting his defeat — a move that resulted in many of its viewers shifting to even farther-right cable outlets like Newsmax and One America News. Fox wanted those viewers back, damn it. In a particularly revealing passage, we learn that Carlson wanted a Fox News journalist fired for tweeting the truth because it might harm Fox’s ratings:

On Nov. 12, in a text chain with Ms. Ingraham and Mr. Hannity, Mr. Carlson pointed to a tweet in which a Fox reporter, Jacqui Heinrich, fact-checked a tweet from Mr. Trump referring to Fox broadcasts and said there was no evidence of voter fraud from Dominion.

“Please get her fired,” Mr. Carlson said. He added: “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ms. Heinrich had deleted her tweet by the next morning.

Ironically, right-wing figures such as Trump, Florida Gov. Ron DeSantis and Supreme Court Justices Clarence Thomas and Neil Gorsuch have all suggested that it might be time to get rid of the actual malice standard, which erects a nearly impossible barrier for public officials and public figures who want to sue media companies.

Under ordinary circumstances, Fox would be a prime beneficiary of that standard. Trouble is, the new revelations show that even Times v. Sullivan may prove insufficient to protect Fox from Dominion’s lawsuit. As Bill Grueskin of the Columbia Journalism School put it on Twitter:

Why Louis Menand thinks distrust in the media has its roots in the chaos of 1968

Photo (cc) 1968 by Fred Mason / Liberation News Service

I listened to Louis Menand’s New Yorker essay on why the public has lost faith in journalism while I was at the gym Thursday. It’s free, and I recommend it. Among other things, Menand reminds us of how insular, racist and sexist the Washington press corps was until very recently. He writes:

The two main social organizations for Washington journalists were the Gridiron Club (founded in 1885) and the National Press Club (founded in 1908). The Gridiron invited members’ wives to a dinner in 1896, but a skit lampooning the suffrage movement did not go over well, and women were not allowed back until 1972. Into the nineteen-fifties, members performed in blackface for entertainment at Gridiron dinners. [Kathryn J.] McGarr [in her book “City of Newsmen”] reports that the club’s signature tune was “The Watermelon Song,” sung in dialect.

Good Lord. Menand’s principal focus, though, is on the chaotic 1968 Democratic National Convention in Chicago, that infamous gathering where the city’s police force beat up and brutalized antiwar protesters, leading to a backlash that swept Richard Nixon into the White House. In Menand’s telling, the two major television networks (CBS and NBC; ABC was barely a force back then) provided little coverage of the protests, devoting nearly all of their airtime to the convention proceedings themselves.

Their treatment of Mayor Richard Daley, the conservative Democrat who unleashed the police on the demonstrators, was fawning and obsequious. For instance, Menand tells us that the legendary CBS anchor Walter Cronkite began an interview with the mayor by saying, “I can tell you this, Mr. Daley, that you have a lot of supporters around the country as well as in Chicago.” Cronkite also allowed Daley to accuse reporters who’d been victims of police brutality of “being plants of the antiwar movement.”

Despite this, a narrative emerged that the news media had actually sympathized with the protesters and had taken their side against the police and the mayor. How did this happen? Menand argues it was because the media had covered the convention and the protests in a neutral, objective manner, when what much of the public really wanted was condemnation of the hippies, the Yippies and the entire long-haired youth culture, which they hated because they didn’t understand it. “It is said that objectivity is what we need more of, but that’s not what people want,” Menand writes. “What people want is advocacy.”

And so it is, he argues, down to the present day. The legacy of Chicago, he tells us, is timid television journalism afraid to offend conservatives as well as endemic distrust in the media.

I do have a bone to pick with Menand. He stacks the deck in making his argument that the public has lost faith in journalism, observing that it has fallen from the 72% who said they trusted the media in 1976 to just 34% today — and only 14% among Republicans. That’s factually accurate, but not quite true. What Menand leaves out is that, according to Gallup, 70% of Democrats currently trust the media, and that trust has never fallen below 50%, even in the recent low years of 2000 and 2016.

What surveys have really found over the years is that people trust the media that they use. If you ask someone — even a Republican among that 14% — whether they trust the media that they consume on a regular basis, they’re going to say yes. Otherwise, why would they waste their time? Of course, the media outlets in question are going to tilt toward Fox News and its ilk. The point, though, is that the media have split into ideological camps. Democrats, liberals and most moderates have at least some degree of trust in the mainstream media, flawed though they are. And Republicans, conservatives and the extreme right similarly trust what they consume.

The larger challenge is that the mainstream media, broadly liberal on culture though often mindlessly neutral on politics, continue to practice what Bill Kovach and Tom Rosenstiel, in “The Elements of Journalism,” describe as “a discipline of verification,” trying to get it right and correcting themselves when they don’t. On the other side is a right-wing media machine that consists mainly of weaponized propaganda and, increasingly, outright falsehoods — about the 2020 election, about COVID, about schoolchildren who relieve themselves in litter boxes, for God’s sake — repeated over and over.

Americans haven’t lost faith in “the media” because there is no such thing as the media, as there were, more or less, in 1968, or 1976. Today there are multiple medias (to make a plural out of a plural), each catering to their own niche. We live in a post-truth environment, and it’s tearing us apart.

Still, Menand has written a worthwhile overview of what has happened to journalism over the past half-century, quoting media observers from Michael Schudson to Margaret Sullivan. If you want to know how we got to where we are today, you could do worse than to spend some time with this piece.

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