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.

via GIPHY

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.”

via GIPHY

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.

via GIPHY

You Know What Today Is?

Neither did I.  But the Internet isn't just for spreading nasty stories about other people in hopes of exerting your political will over millions of humans any more.  It isn't even just for porn!  You can learn stuff.  Hey, the more you know.

Anyway, here's the deal.  December 25? Christmas.  January 1? New Year's Day.  March 17? Take off work and slug Guinness at the Dubliner Day (Known in some parts as the Saint Patrick's Day Massacre.)

September 26?  Glad you asked.  This day could never be just one holiday.  To wit:

Happy Lumberjack Day!
"Lumberjack Day celebrates the archetypal woodsman, the lumberjack. The day was created in 2005 as an excuse to eat pancakes and waffles with friends."

"It has grown to be celebrated all around the country, with people getting dressed up in plaid shirts and wearing beards, and even having lumberjack parties."  And, I'm quite sure, watching this age-old classic from the Python boys.

Happy National Dumpling Day!
It has been observed annually since 2015. Dumplings are becoming more popular all the time. They can be served as an appetizer or a part of the main meal. One of the beautiful things about dumplings is that the flavor and shape possibilities are endless.

"Celebrate by enjoying some dumplings with your friends or family. Perhaps as a part of dim sum."  (Not to be confused with our fearless leader, "dim always.") "Take photos and post them on social media using #NationalDumplingDay."  Note to TR: Read carefully -- this is not National Dumping Day.


Happy National Pancake Day!
"There is archaeological evidence suggesting pancakes are probably the earliest and most widespread breakfast food eaten in prehistoric societies. Pancakes are also known as flapjacks or hotcakes." Apparently an offshoot of National Lumberjack Day. Apparently both of these were offshoots from International Talk Like a Pirate Day. Man. People used to say I had too much time on my hands....

Head on over to Mama Steve's and have yourself a few silver dollars on GTB ('s recommendation).

One problem.  September is National Breakfast Month, and September 26th is also recognized as Better Breakfast Day. "For many families, breakfast is a low priority or not one at all. If you think you are saving time or cutting calories by skipping breakfast, think again! Making a healthy breakfast a part of your morning can get you (and your family) on track to make healthier choices through the day and curb overeating at other meals."  Oh, fate, you are such a fickle, cruel breakfast mate.

Happy National Voter Registration Day!
"National Voter Registration Day, which was started in 2012, is a holiday celebrating democracy in the United States, in which the goal is to make sure everyone has the opportunity to vote. Awareness is raised so that tens of thousands of people register to vote who may not be reached otherwise. Volunteers work on the ground and with technology and media to make sure this happens. The day is endorsed by the National Association of Secretaries of State and State Election Directors."

Dear lord, people, please be registered to vote come November.  Celebrate by registering a papal ballot tonight.

National Shamu the Whale Day!
"Shamu is the name that is used in several of the SeaWorld orca shows, and it is the stage name that is given to the “star” of those shows, beginning with the original Shamu in the late 1960s.

 Shamu died in 1971. However, the name Shamu was trademarked by SeaWorld and has been given to different orcas at various times when performing in Shamu shows in several SeaWorld parks."

...aaaaand if you saw the documentary Blackfish, none of this seems really cool any more.  Celebrate by watching the movie Orca instead.  Or make fun of GTB's most whale-like figure. Shut it.

Happy National Situational Awareness Day!

"The National Situational Awareness Day is observed annually on September 26th. Situational awareness is the foundation of one’s personal safety since it focuses on being aware and paying attention to your environment. Situational awareness is really just another word for mindfulness and developing it will make you more present in daily activities, which in turn helps you make better decisions in all aspects of life."

What?

"Pretty Loaded, LLC submitted this day in November of 2015."
Say no more.

Happy Johnny Appleseed Day!
"On National Johnny Appleseed Day, we honor the man who made apple (and pear) trees grow heavy with the bounty of their fruit across most of this country. On September 26, we commemorate the day of his birth and celebrate his legendary wit, wisdom and enduring story.

Johnny Appleseed Day is celebrated on either March 11th or September 26th. The September date is Appleseed’s acknowledged birth date."  Happy Birthday, Johnny!  Smoke up!

Celebrate by dressing up as this goober and eating apples.


---on the other end of the spectrum from Johnny Appleseed...---

Happy World Contraception Day!
"World Contraception Day takes place on September 26th every year. The annual worldwide campaign centers around a vision where every pregnancy is wanted. Launched in 2007, WCD's mission is to improve awareness of contraception and to enable young people to make informed choices on their sexual and reproductive health."

Enjoy all of these holidays, especially this one, with the theme song of World Contraception Day!

Happy Holidays!  God mock us, everyone.

"Rock the vote or else I'm gonna stick a knife through your eye"

When a bit's this good, why let it go? Come join in the fun and games as cnn.com's new political wunderkinds (that would be us) break down all the races you wish you were watching instead of Musgrove/Wicker for one of Mississippi's Senate seats. As a wise man replied all this morning, "Inanity is our forte, so I don't see why we wouldn't proceed"...

Urban Meyer vs. Mark Richt
Weekend polling swung heavily toward Meyer as this battle of smarmy, Teutonic ballcoaches neared the finish line. Pundits wonder whether Meyer’s gratuitous use of timeouts will hurt him as the voters take pen in hand to make their final decisions. The winner of this runoff likely faces the uber-slime of Alabama’s Nick Saban to see who represents the South in the Big Election in January.

Chris Berman vs. Scott Van Pelt
In this corner, a caricature of a caricature of a once-relevant icon. In this corner, a neurotic, goofy, humbly affable sportscaster. Let’s get ready to rummmbllllllle.

The Escape Club's "Wild, Wild West" vs. Neneh Cherry's "Buffalo Stance"
The Escape Club hit #1 with "Wild, Wild West" in 1988, and gave the world one of the most overquoted lyrics ever, or at least until January 1, 1990 hit. Neneh Cherry also hit #1 in 1988 (I think, I'm too lazy to scour Billboard.com) with "Buffalo Stance" and was roundly criticized for performing the song 8 months pregnant on some British Seacrest-type show. I'm going Cherry by absentee ballot W...mainly because I forgot how awful the Escape Club video was.

Spencer Hawes vs. Etan Thomas
Been a rough couple weeks for young Hawes, one of the NBA’s most outspoken Republicans, as his Sactown Kings opened the season 0-4 and his home state of Washington has been bathing in a deep indigo hue. Free versing Thomas, on the other hand, stepped back on the court after spending 2008 recovering from heart surgery and logged serious hours working for the progressive side of the political aisle. While both of these gentlemen will wake up tomorrow playing for miserable basketball teams, at least one of them will be happy about the electoral college.

Stephon Marbury vs. Sanity
This race has surprisingly tightened up in the last week as Mr. Marbury has managed to avoid saying/doing the typical insane things a Starbury is prone to do. Despite falling behind early by unveiling a tattoo of a logo on his head, he has climbed back into the race, despite accumulating a pair of DNPs and not even dressing for his team's third game. Pundits suspect Marbury will emerge victorious, forcing Knicks management to trade or cut him. At that point, look for Mark Cuban or Phil Jackson to swoop in, sign the man and allow all parties to wallow in the Marbury's resurgent lunacy.

NY Times Crossword Puzzles vs. Video Billiards
Otherwise known as the battle between the two things Rhymo enjoys doing most while squeezing out a deuce, this race has ebbed and flowed in recent months. The Times has suffered from lack of consistent visibility next to the sofas in his company's reception area. Without being present, it is hard for Rhymo to pilfer it for his mid-morning squat while chatting with the receptionists. Billiards has been making inroads, but the poor shot selections of the computer foe takes some of the fun away from winning. It's like winning at pool against a mentally challenged person. Or Isiah Thomas. Look for the stalwart Times to win out in this battle of porcelain perched time wasters.

Lemmy vs. James Hetfield
Pollsters are somewhat surprised by the tightness of this race (and of Lemmy's pants). While Hetfield has far more name recognition and a much larger fortune, Lemmy's prodigious success with the ladies and equally remarkable facial hair has made this a much closer contest than late polling may have suggested.

The Happening vs. The Movement of Man
From the establishing shot of the chili cheese dog moving inward as seen from Man's (the protagonist so named to reflect the ironic apathy towards the film's subject - as if everyone in the world might someday experience this!) mouth to the final sequence of the excrement moving outward as seen from Man's colon; the technical symmetry of this masterpiece is paralleled only by the director's passion in squeezing every ounce from his actors. My ballot is cast.

TJ's love of YouTube clips vs. Something that would require actual thought and effort
It's a Reagan/Mondale-esque landslide victory for, well, I'm sure you know...



Races the G:TB staff may be covering throughout the day:
Starbucks vs. Dunkin' Donuts, PC vs. Mac, Kobe vs. LeBron, John Candy vs. Chris Farley, Rocco vs. Buttman, boxers vs. briefs...

Rock the Vote People

It's Election Day...get off your ass and vote, and remember, your choice pretty much always boils down to two candidates, The Giant Douche or The Turd Sandwich (sorry, you know how much I hate to recycle material). Choose wisely, or Puffy will kill you.

In honor of election day, a few races you might not have known about, but are important nonetheless:

Harry Callahan vs. John McLean
It's "Dirty" Harry vs. the Cowboy McLean. As you can imagine, the race has been extremely tight, with the younger crowd strongly supporting McLean and older voters backing Callahan. What voters need to realize is there would be no John McLean without Det. Harry Callahan. Show respect for the man who reinvented the (anti)hero role in action movies. A vote for Callahan is a vote for the most powerful handgun in the world.

Richard Dawson vs. Bob Barker
One of the toughest races to call on the ballot, this battle of geriatric game show gropers might come down to the recent Barker retirement announcement, which could lead to a swarm of sympathy votes at the polls. Personally, I think Richard's blatant sexual advances on the Feud are far more impressive than Barker's off-screen trysts with the Beauties. Barker does garner some bonus points for his role in Happy Gilmore, which was only a tad bit better than Dawson's role as Killian in The Running Man.

Peyton Manning vs. Tom Brady
Gee, haven't heard alot about this one...

Foreigner vs. Boston
Two staples of Classic Rock Shoot Out face off today, with the winner likely to dominate Two for Tuesdays and Rock-toberfests for years to come. I expect a landslide victory for Foreigner, as their plethora of hits propel them to the top over Boston's less distinctive collection. I mean, just look at this sampling of Foreigner's work product: "Feels Like The First Time", "Cold as Ice", "Hot Blooded", "Double Vision", "Dirty White Boy", "Head Games", "Urgent", "Waiting for a Girl Like You", "Juke Box Hero" and of course "I Want to Know What Love Is". True, Boston gave us "More Than a Feeling" and "Foreplay/Long Time" off their self-titled debut album, but the rest of their platform is weak.

Jane Roe vs. Henry Wade
Are you kidding me? You think I'd touch this one? I'd rather talk about the Manning/Brady race.

Paper vs. Plastic
As a veteran of the glorious supermarket industry, this issue seems to be hotly contested every term, with the result always up for grabs until the 11th hour (Full Disclosure: I never once worked as a cashier - I was a Produce guy...I would've killed someone if I was a cashier). Stupid crunchy granola hippies think Paper bags are the devil's work, but they may be too busy making hemp necklaces to rock the vote. If you are some sort of bag snob and simply MUST have paper bags, get to the polling station today, lest you be stuck with plastic bags that are guaranteed to shred the minute you step out of the store. If you hate dolphins, vote for plastic, as plastic bags can apparently be thrown in the ocean and choke the little bastards.

John Daly vs. The Institution of Marriage
I don't normally encourage people not to vote, but this thing will be a landslide victory for Daly. Forget racing to your nearest polling station - just stay home, kick off your shoes and down a dozen beers (you know John would do the same). Marriage never stood a chance. It was the "Dukakis" to Daly's "Herbert Walker Bush". Daly will soon have ex-wife #4 after filing for divorce from class act Sherrie Miller Daly October 18th, four months after she finished serving a federal sentence for alleged drug and gambling ring wrongdoings. Daly of course wrote about his other three Exes in his autobiography "My Life In & Out of the Rough". The chapter on the previous election losers was entitled "All My Exes Wear Rolexes."