JOURNALISTIC MOTIVES

After decades of listening to conservatives attacking First Amendment libel law as the liberal media’s license to lie, it’s tempting to join the chorus that is cheering each new discovery of an incriminating email from Fox News, especially since my own longtime employment as a Fox News contributor ended abruptly when I represented the boss. But I’m not. I’m still concerned about the freedom of the press. As well as its abuse.

In case you haven’t followed this debacle, it involves the billion-dollar defamation lawsuit that Dominion, the maker of voting machines, has brought against Fox News for allegedly lying about claims of fraud in the 2020 election. The embarrassing emails show Fox News anchors and executives fretting about falling ratings and disparaging guests behind their backs as nutcases.

The media has been having a field day with the messages between the hosts and producers, and they’ve scored coups with leaks of Fox officials conceding that it would be better for hosts not to endorse lies on the air. Of course it would be better.

I would like to believe that if my old client Roger Ailes had still been alive and in charge, Fox News would have handled the election very differently than it did. But that’s precisely because of journalistic standards, the very stuff of the First Amendment — the stuff that civil libertarians generally like to keep government regulators out of.

The Dominion case raises issues of journalistic standards and how they should be scrutinized in a context in which those who might otherwise raise concerns about probing into the motives of journalists are quick to instead hoist Fox News on its own petard. And avoid the hard questions. That’s dangerous, in the long run.

News organizations are not like internet platforms, protected by Congress from liability for content posted by others (protections that are currently before the Supreme Court). So the questions need to be confronted.

Who is responsible for what a guest says? What responsibility, if any, comes from giving a person — an anchor or a guest — a microphone?

Surely no one is suggesting that only those who agree to the same “facts” as the host or the network should be permitted on the air, and hopefully no one is suggesting that courts be in the business of secondguessing those choices. But is there a permissible range of disagreement? Who defines the scope? On what basis?

Some stories have two sides. Some don’t. There was no truth to the claims about the machines. But that is not the end of the inquiry. Truth is a defense, not the standard. Who knew? Exactly.

The key question, under the law, is not what’s true, but whether the liars know that they’re lying. Like so much of the law, everything turns on intent. Character counts.

Did the hosts and producers know that what they were presenting to the audience was a bunch of lies?

Was he or she knowingly lying about Dominion?

Or if not knowingly lying, acting with reckless disregard for the truth?

That is the standard of “actual malice” required by

I’m still concerned about the freedom of the press. As well as its abuse.

the United States Supreme Court’s decision in New York Times v. Sullivan to establish libel in cases dealing with public figures and matters of public importance such as this one.

It is known as a “heightened standard of scrutiny,” which is intended to be very difficult to meet, hence, the attacks on the liberal media for having a license to lie. This is the license. Do not recklessly disregard the truth. Proving what a journalist intended, at least in the days before email and text, was rightly difficult. And now? Disparaging talk about guests is nothing new: putting it down in emails and texts, and then using it to prove a legal case, is new.

Did Fox News recklessly disregard the truth? To act recklessly is to know that there is a substantial risk of falsity and to act nonetheless.

Ultimately, a jury may have to decide what standards were applied by the various decision-makers involved in the case, delving into the motivations and intentions of individual journalists. In that process, even the harshest critic of Fox might want to take care to recognize that strict scrutiny of journalistic motives may chill civil liberties — and reviewing journalists’ emails and secondguessing their motivations is not the road map to a free and independent press.