The Wisdom of Barbers Redux: Fox is Toast

I've written about the wisdom of barbers before when, after getting a haircut in August 2020, I opined that covid-19 "will soon run its course, turning into nothing more than a relatively routine but life-threatening infection like measles.  I predict this will happen around mid-October."  I was maybe a year too early with that prediction but that's where I think we are.

I got a haircut on Friday at that same barbershop and when I walked in the older guy, Johnny Cap, was vigorously holding forth about the Fox News defamation suit.  He read the texts and emails and was (and still is) livid that Fox reporters knowingly lied about election fraud.  He was all-in on Trump until January 6, now he's all-out.  After completing several tours of duty in the Middle East as a Marine mortarman, his son is now a National Guardsman and was deployed to the Capitol for something like two months after the riot.  Suffice it to say that blood is thicker than spray-tan, and he's pissed that Trump and his supporters ginned up a bunch of nonsense that put his son in harm's way.  Sort of like W and his supporters did--I sense a pattern here but that's something for a different post.

John is now of the view that you can't trust the news because it's all entertainment.  He parenthetically carved out the local news from that conclusion, "but that's all car accidents and murders."

This is a long-winded way of saying that we've reached a tipping point.  If Johnny Cap turned against Fox then a lot of other people have too.  Fox is toast.

For the sake of completeness, you can review the Delaware (that's where Dominion sued Fox) civil pattern jury instructions here.  I already did this so you don't have to.  Here's what the jury will be told about defamation:

Defamation is a communication that tends to injure a person's "reputation" in the ordinary sense of that word; that is, some statement or action that diminishes the esteem, respect, goodwill, or confidence in which the person is held and tends to cause bad feelings or opinions about the person.  Defamation necessarily involves the idea of disgrace.  In this sense, a communication is defamatory if it tends to lower the person in the estimation of the community or if it deters third parties from associating or dealing with the person defamed.

But defamation occurs only when the defamatory information is communicated to someone other than the person to whom it refers.  In the law, this is known as "publication."

Del. P.J.I. Civ. § 11.1.  Dominion's reputation absolutely suffered based on Fox's coverage.  I'm also willing to wager that a lot of municipalities don't want to do business with Dominion because (1) they believe that Dominion machines are rigged, or (2) they don't want to deal with constituents who believe that Dominion machines are rigged.  Looks like defamation to me.

Here's how the jury will be instructed about "the truth" as a defense to defamation:

It is an absolute defense to a claim of defamation that the alleged defamatory statements were substantially true at the time the statements were made.  Thus, even if you find that [defendant's name] made defamatory statements about [plaintiff's name] that proximately caused [him/her/it] injury, you cannot award damages if you find that the statements were substantially true.

The alleged defamatory statements don't have to be absolutely true for [defendant's name] to successfully assert this defense.  Substantially true statements are not defamatory.  To determine if a statement is substantially true, you must determine if the alleged defamation was no more damaging to [plaintiff's name]'s reputation than an absolutely true statement would have been.  In other words, if the "gist" or "sting" of the allegedly defamatory statement produces the same effect in the mind of the recipient as the precise truth would have produced, then the statement is "substantially true" and you cannot award damages to [plaintiff's name] for the statement.

To prevail on this defense, [defendant's name] bears the burden of proving by a preponderance of the evidence that the alleged defamatory statements were true or substantially true.

Del. P.J.I. Civ. § 11.12.  I think it's pretty clear that Dominion's voting machines did not flip votes to Biden; Hugo Chavez wasn't involved either.  Chris Krebs told us that.

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So what does Dominion have to prove to beat Fox?  I think they qualify as a "public figure" so it's a relatively high bar:

[Plaintiff's name] has the burden of proving by a preponderance of the evidence facts necessary to establish each of the following elements of [his/her/its] claim:  

(1) that [defendant's name] defamed [him/her/it]; 

(2) that [defendant's name] published the defamatory matter; 

(3) that [defendant's name] intentionally or recklessly failed to determine the truth of the defamatory matter; and 

(4) that the publication of the defamatory matter caused injury to [plaintiff's name].

Del. P.J.I. Civ. § 11.7.  We established a defamatory statement above, that's element 1.  And we have publication--Fox news said it over and over on TV, that's element 2.  

For element 3, Fox knew these statements were untrue.  For example, Sean Hannity said "that whole narrative that Sidney [Powell] was pushing.  I did not believe it for one second."  Dana Perino said this story was "total bs," "insane," and "nonsense;" much like most people, she also pondered "Where the hell did they even get this Venezuela tie to dominion? I mean wtf?"  Even Rupert Murdock said "It’s been suggested our prime time three should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election [was] stolen.”

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As to injury, the fourth element, Dominion notes that "Where a defendant's statements are per se defamatory, the plaintiff need not prove damages to establish liability Instead, in per se defamation cases, 'injury is assumed.'" Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 179 (2d Cir. 2000).  A statement is per se defamatory "if it (1) charges the plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession." Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept. 2019).  I suspect Dominion can show that they lost contracts which would establish prong 2 (and damages).  Election fraud is, of course, a serious crime.  So we can check off element 4 as well.

Whether you go with a seat-of-the-pants/man-on-the-street hot take or a reasoned review of the legal standards, Fox is screwed.  Fake news indeed.

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The Twelve Days of Gheorghemas: Day Five

On the fifth day of Gheorghemas, Big Gheorghe gave to me:

Five bits and bobs
Four reasons to save 68 CDs
Three balls a-rainin'
Two more automotive wormhole websites
And a bald guy and some random hor-seys

Bits & Bobs...one of my favorite sayings from the other side of the pond, defined as "a random assortment of things." Day 5 of Gheorghemas is just that - lots of randomness here including a couple of ties to years past and a dream that includes one of our very own, and it is strange.

Fireball. RumChata. Together.

Everyone knows Fireball Cinnamon Whiskey. Some better than others I imagine. When our winter rolls around, the wife and I like to store a bottle in the ice box. Give it a little chill and viscosity.  We’ll cozy up on the couch in our flannels and sip on the core warming hooch after the kids retire for the evening. In truth we have ever done this, never even thought about it really but it’s a nice visual for our audience. No more than a rock’s glass worth. Shots work too but best when socializing outdoors when the mercury dips down to the mid-50’s.

                                                  

A neighbor introduced me to RumChata a couple of years ago. Rum, cream, cinnamon & vanilla it’s a bit on the heavy side (see ingredient cream), tasty and chock full of calories. Feel like a few but feel for your gut? Do you long for some spice in your cocktail? Go equal parts with the chilled Fireball, or favor the latter for some extra kick. I love this drink. When both bottles are in the house, they aren’t here long. I urge you to try this concoction and soon. Do it of for me. Do it for the children.

The Jacksonville Jaguars

My wife and I moved here in the summer of ’07. That next football season was the most recent with a winning record at 11-5, and a playoff appearance losing to you-know-who. And in that first year, I wasn’t REALLY a fan. Sure there was early rooting and interest, but I hadn’t jumped in the sack yet. An 8-8 record three seasons later is the best we’ve seen since. Between then and now, absent being a Browns fan there hasn’t been a squad as hopeless. With 22 victories over a 6-year period...I’ll leave it at that.

I write this during and after the Jags pretty convincing win over the Seahawks. Sure they almost fucked it up. My certainty that they would was real, but it didn’t. Instead, the city of Jacksonville, or “Sacksonville!” rather, earned its biggest victory since Round 1 of the ’07 playoffs.  Sure, some may say our fans tarnished the moment a tad with the tossing of soda pop onto ejected player Quinton Jefferson at the end of the game, I say otherwise. Screw that guy. He deserved it.

With three games remaining, the Jags have more wins than in the previous two seasons combined and should they sweep, make that the three previous seasons combined. More importantly, they seem to have the goods. Even Bortles is not throwing pick 6’s every other game – that is progress my friends. By now most know of their prowess on the other side of the ball. It’s fun to watch – and dare I say they could make a mark this year in the post-season. If you are without a club and have any ties to North Florida, jump on the surfboard. I’m looking at you Rob.

A Few Quick Reviews from 2016 Product Review

Tommy John underwear – mixed sack. Two pair have developed holes right in the taint area. Must go with the form-fitting draws if you purchase which you shouldn’t. Screw you Tommy. Stick with Fruit of the Loom or Hanes from your local Sears. Or Amazon if you like putting people in your area out of work.

Virtual Reality Goggles from Samsung – haven’t put them on in 48 weeks. 

YETI – yes! Thermos, beer coozie, cooler. It’s all great!

Alexa – way underutilized like most technology at our disposal. The night before I head out of town I ask her what the weather is there, wherever there is. She’s pretty quick, 30 seconds or so faster than the I-pad.

Howard Stern

When Howard went to satellite radio, he lost me as a listener. Whatever car I had at the time was not equipped. The next one was and I subscribed to the basics, but wasn’t forking over the extra whatever it was to listen to Howard. Was it maturity? Frugality? Probably both – I had been a loyal Howard listener for years and did find it entertaining, but could definitely do without it.

A new car was recently purchased that came with three months of Sirius/XM including Howard. It is all I listen to. He has changed a lot. Terrific interviews – Seinfeld, Sting, Bono & Edge, JB Smoove, Robert Plant!, David Letterman, Jimmy Kimmel joining for days at a clip, James Franco the other day, and many more! Really though – a 90-minute commercial free interview with Stern is hard to beat. He’s grown up a lot, more introspective. You can tell he and his staff conduct more pre-interview research than anyone in his field. Podcasts are available. If you do take the plunge and subscribe, I encourage you to change the channel from Stern to something else prior to turning the car off, otherwise the next time you get in the car and you happen to be with your kids the first words you hear could be "cock" or "tits". Maybe he hasn't grown up that much. 

Really Weird Random Dream Featuring Z-Man the Barber

You read it right folks. Weird. 

Backstory – last weekend I took my son to the barber shop but one we hadn’t been to in a long time. As a refresher, I don’t really have hair, or at least I don’t let it grow out much. On a weekly basis, clippers without a guard cut what little I have off. Once or twice a month, I shave it completely when the itch gets me.

I had a week worth of growth at this time. When I was about to pay for my son’s cut, the female barber that worked on him asked if I’d like to get cleaned up. I was surprised, delightfully so, that she had the goods to perform a straight-edged shave. Time didn’t permit but I would definitely make an appointment soon.

This Saturday I went ahead and did the deed myself. I find shaving my head to be an inconvenience, hence the infrequency of the act. Extra time must be available as well as motivation and both were the other day.

I woke up today early as always – 5’ish/5:15 to use the john and then typically head out for physical improvement. Today, it was just the pisser. Ya know how you wake up and immediately recall the dream you were just having? You wonder what the hell just happened....man that seemed real! That’s what I did. The dream I had just woken from went like this:

-Dan working in the city, presumably NY

-Dan heads to barber on his day off, Saturday

-Z works there part-time – he’s my barber!

-Dan steps into the chair and Z & Dan share in small talk. We’re apparently pretty good buddies!

-Dan closes his eyes cuz he’s sleepy while Z trims the eyebrows

After the brows are trimmed, the action stops. I think maybe Z has taken a phone call or heads to the crapper. I’m like, dude! Where the eff is Z?! I open my eyes and he’s right there in the next chair over, reading the paper! Why are you reading the paper????!!!!

Andrew calmly moves his attention from the newspaper to me and says, “Dan, you don’t have any hair on your head – it was already shaved when you came in here.”

The end. Translate that if you will.