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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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:
It’s almost impossibly difficult in this country for a public figure to win a defamation suit.
One of the only ways to do that is to show that the defendant exhibited “a reckless disregard for the truth.”
Fox has come as close to doing that as any media company I’ve ever seen. https://t.co/rZ3dS7hOax
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.
Chris Licht, left, hanging out with a notable truth-teller. Photo (cc) 2017 by Arforv
The way forward for CNN was less talk, more news. Instead, Chris Licht, the new chairman and CEO, seems to have embarked on a campaign of less truth, more pandering to the Trumpist right wing of the Republican Party.
Last month Licht canceled “Reliable Sources,” CNN’s long running media-criticism program. That led to the departure of its host, Brian Stelter, who had emerged as an outspoken defender of the press and the First Amendment in the face of Donald Trump’s attacks on the media as “enemies of the people.”
Then, on Friday, came another blow. In analyzing President Biden’s Thursday night speech, White House correspondent John Harwood told the simple truth about the state of our politics. Within two hours, Harwood announced that he was leaving CNN. As Dan Froomkin reported, “A source with knowledge about Harwood’s situation told me that Harwood was informed last month that Friday would be his last day, even though he was on a long-term contract. ‘He used one of his last live-shots to send a message,’ the source told me.”
Here’s what Harwood said in what turned out to be his last appearance on CNN (click through to Froomkin’s post to watch the video):
The core point he made in that political speech about a threat to democracy is true. Now, that’s something that’s not easy for us, as journalists, to say. We’re brought up to believe there’s two different political parties with different points of view and we don’t take sides in honest disagreements between them. But that’s not what we’re talking about. These are not honest disagreements. The Republican Party right now is led by a dishonest demagogue. Many, many Republicans are rallying behind his lies about the 2020 election and other things as well. And a significant portion — or a sufficient portion — of the constituency that they’re leading attacked the Capitol on January 6th. Violently. By offering pardons or suggesting pardons for those people who violently attacked the Capitol, which you’ve been pointing out numerous times this morning, Donald Trump made Joe Biden’s point for him.
I was willing to give Licht some room after he replaced Jeff Zucker, who transformed CNN’s prime-time bloc into an endless stream of Trump-bashing and who had presided over and enabled the Chris Cuomo scandal. Zucker was said to be popular with the troops; given how bad much of the programming was, I didn’t think it was necessarily a bad thing that they were unhappy over his departure.
But Stelter and Harwood’s departures signal that Licht’s goal is to move CNN back to the center at a time when there no longer is a center. Eliana Johnson reported for the right-wing website Free Beacon that Licht has been sucking up to Republicans with the message “We want to win back your trust.” But as Harwood pointed out, you can’t have that kind of balance at a time when the Republican Party has devolved into “semi-fascism,” as Biden put it recently, by refusing to abide by the clear results of the 2020 election and indulging the insurrectionists who stormed Capitol Hill on Jan. 6, 2021.
The biggest unanswered question is how much of this is being driven by John Malone, a billionaire investor who owns a large chunk of CNN’s new parent company, Warner Bros. Discovery. As Peter Kafka recently wrote in Vox, Malone has been quite explicit in saying that CNN should be more like Fox News, but he’s also denied that he’s had anything to do with the recent changes at CNN. Then again, does he really have to say anything? Licht knows who’s calling the shots.
In the early days of the war in Ukraine, we all learned something we might have forgotten — CNN is a great news organization, with skilled, courageous reporters around the world dedicated to bringing us the news. It was a stark contrast to the hours of talk the network foists on us every evening. More news would be an admirable direction to pursue.
The danger, instead, is that CNN is going to stick with talk, give us some weird amalgam of small-d democrats and insurrectionists, and try to convince us that they’re now balanced. Who is this supposed to appeal to? It’s not going to attract current Fox News viewers. It’s hard to see who this will benefit other than MSNBC, which has stuck with its prime-time liberal talk-show lineup and which will probably attract some share of disaffected CNN viewers.
More: Following Zucker’s departure I offered five ideas for GBH News on how CNN could reinvent itself. So far, Licht has taken me up on exactly one of those ideas — strangling CNN Plus in the crib.
The late New York Times journalist Anthony Lewis, whose writings on the First Amendment are essential to understanding free speech and freedom of the press, wrote that the legal standard for incitement to violence may have swung too far in the direction of allowing just about anything. I wonder what he would have to say about the toxic right-wing stew in which the Buffalo shooter immersed himself — 4chan, according to reports, but reinforced by broader cultural developments in which Fox News and Trumper politicians have embraced virulent forms of racism.
In 1969, the Supreme Court ruled in Brandenburg v. Ohio that a Ku Klux Klan leader demanding “revengeance” against Black people and Jews did not engage in incitement because his threat was non-specific. That is, he didn’t urge the mob he was addressing to march down the street and attack the first African American they came across. The idea was that the threat had to be “directed at inciting or producing imminent lawless action” is “likely to incite or produce such action” in order for it to rise to the level of incitement.
In an age when words have inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in Brandeis’s phrase, should be good ones. The law of the American Constitution allows suppression only when violence or violation of law are intended by speakers and are likely to take place imminently. But perhaps judges, and the rest of us, will be more on guard now for the rare act of expression — not the burning of a flag or the racist slang of an undergraduate — that is genuinely dangerous. I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging. That is imminence enough.
The Brandenburg standard came into being only after many decades of evolution toward a less stringent understanding of incitement, beginning with Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. articulated the “clear and present danger” test. The decision, which includes Holmes’ famous admonition that you can’t falsely shout “fire” in a crowded theater, is widely reviled today, but it represented a step forward: It was the first time the court suggested that speech couldn’t be punished unless it presented such a danger.
If Schenck didn’t go far enough, perhaps Brandenburg, as Lewis writes, went too far. How can we redefine incitement in the age of social media? Breaking the connection between speech and action would have the effect of outlawing hate speech, which is currently regarded as coming under the protections of the First Amendment. Should we go down that road? Can we trust the current Supreme Court to do it in a way that addresses the problem without creating collateral damage? What unintended consequences would there be?
We have a horrendous mess on our hands. Hate speech on the internet presents dangers unlike anything we have dealt with before. As someone who’s pretty close to being a free-speech absolutist, I have real problems with any new government restrictions. But I do find it interesting that no less a friend of the First Amendment than Anthony Lewis had reservations about incitement. And Lewis was writing before social media and the dark web had gotten much traction.
We need a national conversation. Sadly, we are at a moment when we are ill-equipped for such an exercise.
Correction: An earlier version of this post identified 4chan’s hosting service. In fact, it was a porn site that uses the name 4chan but is otherwise unrelated.
Our thoughts at this time need to be with the Black community of Buffalo — and everywhere — as we process the horror of one of the worst mass murders of recent years. We need to do something substantive about guns, racism and white supremacy. What actually happened, and what we can do to prevent such horrific events from happening again, must be at the top of our agenda.
This blog, though, is primarily about the media and often about free speech. So let me address some of the secondary issues. The shootings intersect with notions of hate speech, social media and the role of Fox News in mainstreaming dangerous racist ideologies such as so-called replacement theory, which holds that the left is trying to push out white people in favor of non-white immigrants in order to obtain an electoral advantage.
When pressed on how she planned to confront such hate speech online, without impinging on First Amendment rights, Ms. Hochul noted that “hate speech is not protected” and said she would soon be calling meetings with social media companies.
Hochul is wrong, and the Times shouldn’t have used “noted,” which implies that she knows what she’s talking about. If hate speech were illegal, Tucker Carlson would have been kicked off Fox long ago.
What’s illegal is incitement to violence, and you might think whipping up racist hatred would qualify. In fact, it does not — and the very Supreme Court case that made that clear was about a speaker at a rally who whipped up racist hatred. Brandenburg v. Ohio (1969) held that a ranting Ku Klux Klan thug demanding “revengeance” against Jews and Black people had not engaged in incitement because his threats were non-specific.
Hochul can cajole and threaten. And she should. But it’s going to be difficult to do much more than that.
As for the media themselves, that’s a morass, and it’s too early to start sorting this out. But the shooter reportedly fell down the 4chan hole during the pandemic, immersing himself in the racism and hate that permeate the dark corners of the internet. There are a lot of moving parts here, but it seems unlikely that a young mass murder-in-the-making was sitting around watching Fox, even if some of his rants paralleled Carlson’s rhetoric. Fox’s role is to mainstream such hatred for its frightened, elderly viewers. The radicalization itself happens elsewhere.
So, are we going to ban 4chan? How would that even work? If the government tried to shut them down, they could just go somewhere else. I’m sure Vladimir Putin would be happy to play host.
4chan represents the bottom of this toxic food chain; Fox News is at the top. In the middle are the mainstream social media platforms — Facebook, Twitter, Twitch (which allowed the shooter to livestream his rampage for nearly two minutes before taking it down) and the like. It’s too early to say what, if anything, will happen on that front. But it’s probably not a good time to be a billionaire who wants to buy Twitter so that there will be less moderation on the platform than there is currently.
Yes, I read The New York Times’ massive deep dive into Tucker Carlson, whose Fox News program was dubbed — accurately — as “what may be the most racist show in the history of cable news.”
Something as lengthy and detailed as this defies summary. If you don’t have the time or the inclination to slog through the whole thing, the “key takeaways” sidebar is quite good. I also recommend that you interact with the digital version of part three, in which you’ll hear Carlson’s own words, taken from more than 1,100 episodes.
Times reporter Nicholas Confessore has done a remarkable job of combing through Carlson’s past and present in an attempt to explain his rise from stylish but obscure magazine writer and failed television host to the most powerful force in cable. And Confessore offers partial answers, at least, to some aspects of the Carlson phenomenon. For instance:
• Did Carlson change? Or has he always been this way and we just didn’t see it? Several years ago I wrote a piece for GBH News in which I recounted my own long-ago experience with Carlson, who came across as a charming raconteur with mainstream conservative-libertarian views.
Confessore’s answer, I think, is that Carlson really did change, although the seeds of his transformation were always there. His childhood sounds like it was truly miserable. And, in looking back, I have to say that my only personal experience with him was in how he interacted with a fellow white man. It doesn’t sound like he’s spent much time at all with people of color.
• Does he really believe the terrible things he says? Or is it all an act? This comes up in conversation with friends and associates all the time — again, mainly because he seemed to be someone entirely different a generation ago. Confessore’s answer: it’s a little of both.
I thought Confessore was especially strong in his explanation of Carlson’s attempt to reinvent himself after his failed stints at CNN and MSNBC by launching The Daily Caller, a conservative news outlet that moved increasingly to the fringe right. Carlson comes across as someone who embraced extremism partly out of conviction and partly as a way to amuse himself. He does not seem like someone who ever gives much thought to the consequences of what he writes and says.
He is also portrayed as really, really wanting to make it in television, and he was probably willing to do just about anything to make his Fox gig a success. The late Fox impresario Roger Ailes reportedly once said that Fox was Carlson’s “last chance.” So Carlson’s shtick could be seen as a poisonous combination of his own flirtation with extremist ideas; delight at provoking the “elites” whom he hates; and desperate ambition.
• What’s next? Would Carlson run for president? Confessore doesn’t get into that, even though he portrays Carlson as the logical successor to Trump — “Trumpism without Trump,” as he puts it. I don’t see why Carlson would take the next step given the riches and fame that have already come his way. But we don’t know whether he lusts for power, just as we didn’t know that Trump would aspire to authoritarian rule once he got past the novelty stage of what started out as a celebrity candidacy in 2015.
Confessore also does a good job of explaining how Fox has overcome the problems with advertisers that Carlson has experienced, and the role played by Lachlan Murdoch, who is far more ideological and extreme than his cynical, greed-crazed father, Rupert. The Times has produced a triumph of explanatory journalism.
Lately I’ve been trying to figure out the where the line is for free speech in the editorial sections of nonprofit news organizations. I know they can’t endorse political candidates lest they lose their nonprofit status, the result of a law rammed through the Senate by Lyndon Johnson back in the 1950s. And a few people have told me that nonprofits can’t endorse specific legislation, either.
But what else? When Ellen Clegg and I asked Art Cullen, editor of Iowa’s Storm Lake Times, on the “What Works” podcast if he’d considered taking the Times nonprofit, he said he hadn’t because he was afraid he wouldn’t be able to write editorials. Cullen won the Pulitzer Prize for editorial writing in 2017.
Well, here’s a concrete example. The Salt Lake Tribune — the first major daily newspaper in the U.S. to become a nonprofit — recently ran a tough editorial holding state leaders to account for their failures in responding to COVID-19. It began:
That wan fluttering noise you hear coming from the direction of the Capitol building is the sound of the state of Utah waving the white flag of surrender in the battle against the COVID-19 pandemic.
It’s tragic. It’s disgraceful. And there is lots of blame to go around.
Naturally, the editorial led to death threats, as Erik Wemple reports in The Washington Post. Although the threats came after Fox News host Sean Hannity denounced the Tribune for advocating vaccine mandates, what Hannity said, in Wemple’s recounting, wasn’t even remotely a call for violence or threats. It’s just America in 2022.
The death threats notwithstanding, the Tribune’s editorial is an indication that nonprofits can in fact take a strong editorial stand on matters of public interest, including governmental actions, without risking their tax-exempt status. They should be able to endorse candidates and advocate for legislation if they so choose. But at least they are not entirely prohibited from exercising their freedom of speech.
William Randolph Hearst. Photo via the Library of Congress.
I recently had a chance to see “Citizen Hearst” on PBS’s “American Experience.” It was extraordinarily well done. Despite clocking in at nearly four hours, with much of the time given over to talking heads, my attention never flagged. Partly it’s because there was so much high-quality archival footage. Partly it was because the subject, the newspaper mogul William Randolph Hearst, is just so compelling.
There was only one aspect of Hearst’s career that I thought got short shrift. Years ago I read William Andrew Swanberg’s 1961 biography of Hearst. (Confusingly enough, Swanberg’s book was also called “Citizen Hearst,” but the documentary is based on a different book — “The Chief: The Life of William Randolph Hearst,” by David Nasaw, who appears in the film.) I distinctly recall that Hearst’s papers were sympathetic to Germany during the early years of World War I, so he faced a crisis when the U.S. entered the war. His solution: adding the name “American” to many of his papers.
Another omission from the documentary is more conceptual than factual. The film seems to take it for granted that we’ll never see another media figure who wields power the way Hearst did. Well, what about Rupert Murdoch? If anything, Murdoch has more power and is more dangerous. His Fox News Channel has become the single most important force driving the crisis of democracy that we’re contending with at the moment.
In that sense, “Citizen Hearst” is not just a well-made film about a historical figure. It’s a cautionary tale.
The Jan. 6 select committee’s decision to ask Sean Hannity to testify carries with it a few nettlesome details.
The Fox News star’s lawyer, Jay Sekulow, has already invoked the First Amendment. But there is, in fact, no constitutional protection for journalists who are called to testify in court or, in this case, before a congressional committee. The problem, as the Supreme Court explained in its 1972 Branzburg v. Hayes decision, is that granting such a privilege requires defining who’s a journalist and who isn’t. And the First Amendment belongs to everyone.
That said, the government is generally loath to force journalists to testify because of the chilling effect it would have on the ability of news organizations to operate as independent monitors of power. It would be well within bounds for the committee to decide that Hannity is not a journalist. He was a close confidant of Donald Trump when Trump was president, was a featured speaker at a Trump rally and, in his communications with the White House, made it clear that he was a member of Team Trump.
But this brings us back to one of the central dilemmas of the Trump years. Hannity’s behavior was so over the top that it’s easy to say he’s not a journalist. Still, you can be sure that Trump’s defenders will point to far more ambiguous situations and say, “What about?” Ben Bradlee’s friendship with President John F. Kennedy comes to mind, as does Walter Lippmann, the ultimate insider.
The problem facing members of the select committee is that if they subpoena Hannity and other Fox News personalities, they would do so in the certain knowledge that Republicans will claim a precedent has been set and abuse it as soon as they’re in a position to do so. I have little doubt, for instance, that New York Times executive editor Dean Baquet and former Washington Post executive editor Marty Baron would be forced to testify about their papers’ coverage of the Russia scandal.
Which is why the select committee is hoping that Hannity will accept its invitation to testify voluntarily. If he refuses (as he almost certainly will), then it will have to decide whether to issue a subpoena — a move that could have far-reaching consequences.
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