Should Fox News Pay For Its Shameful Election Coverage?
Donald Trump’s lawyers Rudolph W. Giuliani and Sidney Powell said many scandalous things in the weeks following the 2020 election, when the president desperately tried to cast doubt on the race’s outcome. Among other things, they peddled baseless conspiracy theories about two companies they claimed were engaged in electoral fraud – Smartmatic and Dominion Voting Systems.
If they slandered the companies, Giuliani and Powell should certainly be held accountable.
But what about their pals at Rupert Murdoch’s Fox News? Should the network also be punished for spreading baseless allegations? After all, Fox News has featured numerous reports and commentaries on the two companies’ supposed role in the election “theft”. Fox invited Giuliani and Powell to the air over and over again, allowing them to repeat those lies.
Was Fox a co-conspirator to deceive the American people? Or was he just doing his job of covering a national debate of interest?
These will be key questions in the $ 2.7 billion libel lawsuit brought by Smartmatic not only against Giuliani and Powell, but also Fox News and several of its hosts. (Dominion also sued $ 1.6 billion for libel.)
It all dates back to the weeks after the election, when Powell and Giuliani made a lot of outlandish statements they never supported, including that Smartmatic was founded under the leadership of Venezuelan leader Hugo Chavez to rig the election. They alleged, again without evidence, that the two election technology companies had “given up” and “reversed” votes in many states to secure Trump’s downfall. They alleged a vote theft scandal of historic proportions and “massive corruption across the country”.
And Fox News allowed them to repeat these claims to satiety on network broadcasts.
It is not an open and closed affair. For journalists like me, this raises troubling issues regarding reporting on controversial issues.
In documents filed late last month, Fox insisted it was the newsworthy allegations, not the coverage by Fox, that put Smartmatic in the spotlight, and said the lawsuit posed ” a flagrant threat to the fundamental freedoms of the First Amendment ”.
As Fox’s attorneys put it in calling for the summary dismissal of the lawsuit, “providing a forum for relevant people to make statements that can be tested in the crucible of vigorous debate is too much.” important to allow lawsuits against the media, rather than against those who make the claims. “
It is difficult to dispute this broad statement of principle.
But is it true that Fox was simply providing a neutral forum for a fair test of newsworthy claims?
I’m not a lawyer and can’t tell you exactly how the courts will – or should – rule under the law of New York State where the lawsuit was filed. To prove libel under the 1964 United States Supreme Court ruling New York Times vs. Sullivan, Smartmatic may need to show not only that false statements were made, but also that Fox knew they were false or published them with a reckless disregard for the truth. It’s a high bar.
But I can tell you as a journalist what makes the difference between covering a story responsibly and irresponsibly.
It’s not enough to say in your own defense, “Hey, we were just quoting someone else.” Of course, it was newsworthy that the President’s representatives made these allegations, but by covering a controversial story like this, it was Fox’s journalistic obligation to do so fairly. He should have done enough of his own reporting on the savage claims to distinguish viewers between fact and unsubstantiated claims, making it clear what he knew and what he didn’t know. He should have paid attention to the attribution, so viewers could assess the assertions in their proper context.
Fox should have asked the Trump team for evidence to back up their explosive claims, and if none were forthcoming, Fox should have made it clear. Even on his “opinion” shows, he should have been scrupulous in noting that the allegations against Smartmatic and Dominion had been denied by the companies and contradicted by election officials and voting experts.
When news agencies follow these rules in good faith, it seems to me that they deserve strong legal protection. There is a reason why so many other news outlets that reported the allegations were not named in the lawsuit.
Of course, every now and then Fox hosts have acknowledged that Smartmatic and Dominion have denied the allegations. Some presenters – including, to his credit, Tucker Carlson – questioned the claims much more vehemently than others. Fox News says it gave Smartmatic the opportunity to air. And after Smartmatic accused him of broadcasting false and defamatory statements, Fox News aired a segment featuring a non-partisan election expert disputing numerous claims by the president’s legal team.
But for the most part, hosts like Lou Dobbs, Maria Bartiromo and Jeanine Pirro have acted more like little-skeptical cheerleaders than responsible journalists.
In his legal papers, Smartmatic points to 192 statements he says are defamatory in 41 broadcasts, articles and social media posts – and 77 of those statements were made by Fox News hosts themselves.
Pirro, for example, called Smartmatic a “great criminal conspiracy”. Dobbs thanked Giuliani for “seeking the truth”. He denounced what he said was a “cover-up” and repeated lies, including that Smartmatic’s servers were located outside the country where they could not be audited.
This does not “cover” the controversy. It’s conveying bad information, with approval.
Only a few segments noted that Smartmatic denied the allegations, according to the company’s court documents. Almost none of the segments included a compensatory perspective.
It is no coincidence that after Powell and Giuliani’s disinformation campaign – which was enthusiastically amplified by Fox – more than half of all republicans came to believe that the 2020 election was stolen, further inflaming American politics and undermining faith in democracy. This, in turn, led directly to the January 6 riot at the United States Capitol.
Fox would undoubtedly qualify his coverage as “fair and balanced”. But true fairness and balance require intellectual honesty and a rigorous search for the truth.