March 23, 2023

You can treat it as a rule of thumb that most media coverage you’ll read is fairly superficial. (That started as a much harsher first sentence but I thought better of it. You’re welcome.) All you righteous media reporters are now free to attack me over this. But I’m obliged to keep things real and, let’s be honest, it’s a good rule of thumb. The top practitioners at the major outlets tend to have little focus on the actual journalism, which is sorta okay if you’re really covering the business of media, but also have a thinnish grasp of the business dynamics of news as well. Their focus is on industry, news room and board room gossip – a sort of vérité´ Succession. (Which, yes, is an amazing show.) I was reminded of this when I read a repartee between the two media reporters for Puck last week.

(As far as I can tell it was only in their newsletter and not a linkable piece online.)

The gist of the exchange was that Fox’s offenses were generally overblown and the coverage was overhyped in significant part by liberal news organizations’ animus toward Fox. The suit’s price tag of $1.6 was probably too high, both agreed, but on what basis it wasn’t clear. They just seemed to think it was too high. Presumably one would need some knowledge of Dominion’s business and its claimed losses over time to have some opinion on this question.

“It’s clear that there’s a lot more nuance to this case than what the headlines sometimes suggest. And, indeed, some of us in the media may have put a little too much stock in Dominion’s framing on things,” cautioned Dylan Byers before passing on the claim, presumably for Fox News’ press office, that Rupert Murdoch had actually been misquoted in one case. (Here’s the piece which describes the nuances he was referring to.)

Eriq Gardner said he was baffled that some people who believe in press freedom think Fox should lose the case. “Yeah, I understand that some believe that what was aired on Fox News is beyond the pale, totally unparalleled, and that a liberal news organization would never experience such trouble — but I don’t think that’s particularly imaginative. If, for instance, Joy Reid invited Christopher Steele onto her show to opine that the Russians had interfered in the 2016 election and stolen it for Trump, would that be actual malice? What picture would be painted by her texts and Slack conversations?”

Of course, a defamation case has to have a litigant with standing to claim they had been defamed. Who would that be in this hypothetical case? Russia? The 2016 election?

This is one of the unique dimensions of this whole saga. Fox broadcasts deceptive, disingenuous and flat-out false claims all the time. But to get into legal trouble you have to defame some person or entity with legal standing. The “woke mob” can’t bring a case. American democracy can’t bring a lawsuit. Politicians are seldom able to do so for a mix of political and legal reasons. Finally, for a case to have any teeth, the reputational damage must have some significant financial impact. This is why the particular dynamics of the Big Lie represented a kind of legal perfect storm.

For months Fox broadcast a series of demonstrably false claims about a specific, profitable and large private company: Dominion. There’s little question those lies damaged the company’s reputation and ability to sell its services. The details included in its motion also leave little question that people up and down the chain of authority at Fox knew those claims were false and simply didn’t care. Their focus was ratings and money. Under Sullivan, no defamation case is a slam dunk. But this is about as close as you get to that. The meaning of “actual malice” has been litigated extensively over the years. And the set of facts set out above basically meet all the definition points.

Of course, in the case of Joy Reid and Christopher Steele, truth is an affirmative defense. Russia did interfere in the 2016 election. Whether it was “stolen … for Trump” is a more complicated question. But it’s not clear it’s untrue and given the subjective nature of the language you could make a decent argument for its accuracy in court. It’s unclear who could make a claim they were defamed. Would Joy Reid’s Slacks show she knew the claims were false but didn’t care? That would surprise me.

Hopefully you get the point: we should be wary of chatter by media reporters who lack a basic understanding of media, understand Russian interference in the 2016 election apparently from what they’ve heard on Twitter and Fox and seem to think belief in the strength of Dominion’s case rests in large part on liberal bias.

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