Fox News v. Dominion Voting Systems: “So Absurd, No One Would Believe Us.”

Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse
steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which
enriches him not, and makes me poor indeed. –OTHELLO ACT 3, SCENE 3, 155–161

Martin Merritt
By: Martin Merritt, esq.
THLA President
DBA Heath Law Section Past Chairman
“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

“Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which enriches him not, and makes me poor indeed.” –OTHELLO ACT 3, SCENE 3, 155–161

I sure miss high school English class, which harkens me back to a day when entertainment had more . . .“class.”

Dominion Voting Systems v. Fox News. Late night talk shows exploded this week, over The Tucker Carlson Show’s depiction of the January 6th incursion into the Capitol. If you haven’t seen it, the show broadcast a highly-edited version of video taken inside the Capitol on January 6th , with Carlson’s narrative claiming the incursion was nothing more than a peaceful “tourism” trip. The question being raised by liberal hosts, like Stephen Colbert, is simply, “has Tucker Carlson gone insane?”

Short Answer: “I don’t think so.” I stay away politics, left or right, other than to register the opinion, “some sins carry their own penance.” But I am fascinated by the practice of law, and in particular, defamation cases, with their odd twists and turns. That said, let’s unpack this thing.

“Crazy like a Fox.” In order to make sense of what’s going on, first consider, Fox News is being sued for $1.6 billion by voting machine vendor, Dominion Voting Systems, which argues that Fox repeatedly aired allegations that the company helped rig the general election against former President Trump, despite many at the news organization privately believing the claims were false. Emails uncovered in the case seem to bear this out.

Fox Chairman, Rupert Murdoch, was among several at Fox to say privately they didn’t believe the claims made by Trump and his allies, that widespread fraud cost him reelection. In his deposition, Murdoch said he could have prevented guests who were spouting conspiracies from going on the air, but didn’t.

AP reporter, David Bauder described it this way in a March 6 article, “Eye-catching evidence has emerged from court filings in recent weeks revealing a split screen between what Fox was portraying to its viewers about the false claims of election fraud and what hosts and executives were saying about them behind the scenes. “Sydney Powell is lying,” Fox News host Tucker Carlson said in a text to a producer, referencing one of the attorneys pushing the claims for Trump.”

The fact that Fox News executives don’t believe their own stories would be, oddly enough, the most comforting thing I have heard in a long time. It would indicate that the folks at Fox News actually have good sense (maybe even don’t like our former President), but were playing along for higher ratings, because “money.” They aren’t really crazy. Fox’s stock price is directly related to their audience size.

It appears that while “Truth,” is an absolute defense to defamation, Fox executives’ text messages and emails make this claim a bit “dodgy.” Instead, Fox appears to be relying on the back up defense, “what we say is so absurd, no reasonable person would believe us.” Which might explain Carlson’s increasingly “silly” broadcasts. They are playing the “satire” card.

Why would I suspect the “satire” defense by Fox News? Two reasons. First, I have a nearly pathological need for things to make sense in the world. Second, because they have done it before. In a September 29, 2020, NPR news article, David Folkenflik reported on another federal slander case, “You Literally Can’t Believe The Facts Tucker Carlson Tells You. So Say Fox’s Lawyers.” And the federal judge agreed.

This was in the 2020 defamation case, Karen McDougal v. Fox News Network. McDougal had sued Fox News, because Carlson said she had engaged in an “extortion scheme,” when she demanded money from President Trump. Fox lawyers countered and U.S. District Judge Mary Kay Vyskocil agreed, in her 12(b)(6) dismissal opinion, holding that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.'”

Trump’s Texas attorney, Sidney Powell, made the same argument in her motion to dismiss another $1.3 billion defamation lawsuit brought by Dominion Voting Systems, “No reasonable person would conclude that the statements were truly statements of fact.” Instead, she was making “Rhetorical hyperbole,” which, especially when made of a public figure about politics, is often claimed not to be a statement of “fact” and therefore, incapable of being defamatory.

Usually, when someone is joking, there is a “tell,” a slight smile, a raised eyebrow, or other signal that let’s us “in on it.” But “satire,” which is also protected by the First Amendment, doesn’t always have a tell.

According to the First Amendment Encyclopedia’s James Walker. “Satire is a literary form that humorously mocks, ridicules, and scorns individuals and political or social practices, is one of the most effective means of criticism. Since the time of the ancient Greeks, it has been used to lampoon the comfortable, the rich, the famous and, most important from a constitutional standpoint, the powerful.”

If you are trying to make sense out of all this litigation, “don’t.” (Because “it doesn’t.”) I feel like I am watching Steve Martin in the movie, The Jerk, describing carnival prizes on a shelf. “Somewhere, on a continuum, between uttering public criticism as hyperbole, and right there, next to a joke that is so absurd that no one would believe it,” sits a tiny little “sweet spot” where a person can be sued for defamation.” I just don’t know where it might be