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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