Legal scholar Jeff Kosseff wasn’t offering Fox News business advice when he said that—he was engaged in legal analysis. But the bosses over at Fox News might as well translate that sentence into Latin and carve it above the doors at 1211 Avenue of the Americas. Actual malice is all they’ve got these days.
Kosseff was referring to a remarkable development in the defamation lawsuit brought by Dominion Voting Systems against Fox News, which broadcast all sorts of false, defamatory, irresponsible, and positively loopy claims about Dominion in the wake of Donald Trump’s loss to former vice president and full-time human jack-o’-lantern Joe Biden in the 2020 presidential election.
The case would have made the late Tom Wolfe throw away his fountain pen and declare satire a thing of the past. Beyond the imbecilic stories about Venezuelan hackers and the predictable George Soros stuff, Fox News hosts such as Maria Bartiromo sat there nodding like well-dosed junkies while Trump campaign attorney Sidney Powell put forward a series of fantastical claims that were based in part—this is the part you cannot make up—on an anonymous email from a source who at times claimed to be a ghost and at other times said she received the information in dreams and visions. “I was internally decapitated, and yet, I live,” the ghost said. Not all of the ghost’s stories made it on the air: The same source apparently claimed that the late Supreme Court justice Antonin Scalia had been killed during a human-hunting expedition organized by the Bohemian Club and that Roger Ailes spent the 2020 election season plotting against the president in spite of his being inconveniently dead since 2017.
One of the legal terms of art that comes up in determining “actual malice” in a libel or defamation case is “reckless disregard for the truth.” I am a former newspaper editor, not a lawyer, but if a reporter had brought me a piece and the source was a [profane 13-letter participle adjective deleted] ghost, I would fire that reporter on the spot, lament that in these civilized times I could not throw him out the [same participle] window, and write “RECKLESS DISREGARD FOR THE TRUTH” on the HR paperwork.
The judge in the case seems to feel the same way. In a recent ruling, Delaware Superior Court Judge Eric M. Davis declared the issue of the falsity of Fox’s claims settled, and—here’s the part that should really make your eyes pop out—Fox did not even attempt to defend the truth of any of the statements at issue. A defamation case such as this one faces three tests: The claims in question must be false, they must be defamatory, and they must have been published with actual malice, which includes reckless disregard for the truth. With the falsity and the defamatory nature of the claims being established, all Fox News has to fall back on is the hope that it can slink out the backdoor by pleading that there was no actual malice involved.
Instead of defending its journalism, Fox is simply arguing that it was under no particular obligation to think very hard about the truth or the falsity of anything it broadcast, on the grounds that these were mere opinion—which they were not, being claims of fact—or that they were public accusations that were themselves newsworthy.
The latter line of defense is particularly weaselly. News organizations do, in fact, report statements that are defamatory (or potentially defamatory) all the time, when those statements are made in a context that makes them news. For example, Donald Trump says all sorts of false and defamatory things about people, and journalists are obliged to report on his antics, formerly because he was, incredibly enough, president of these United States of America, and at the moment because he is, shamefully enough, the frontrunner for the 2024 Republican presidential nomination. When something is said by the president, or in a courtroom, or on the floor of the Senate, journalists get a pass on repeating anything defamatory, because those situations are newsworthy. Fox is saying that Fox News is not responsible for what Fox News put on Fox News because what Fox News puts on Fox News is newsworthy—because it is on Fox News. It is, indeed, newsworthy that Tucker Carlson produces an endless stream of asinine horsepucky, Carlson being a major media figure—but that doesn’t get Carlson off the hook for anything defamatory he himself puts out.
Inconveniently for Fox News, there is ample evidence that the channel’s hosts and executives knew that they were broadcasting lies but chose to keep doing so for financial reasons. That’s how you pin the actual-malice tail on the jabbering jackass.
I don’t know if that will work as a legal defense. (I remember the O.J. verdict!) But think of the searing, utter, bottomless contempt that Fox News here evinces for its audience—because Fox’s argument is, in essence: “It doesn’t matter whether we feed these rubes lies and conspiracy kookery and idiotic propaganda, unless doing so costs us money. In fact, we’re not even going to think about whether any of this is true unless broadcasting all these lies starts to hurt us financially.”
That right there is some shameful stuff.
But, incredibly enough, the Fox News audience seems to enjoy being lied to. They are so emotionally incontinent and rage-besotted that they will sit still for any huckster, however dishonest, who fans the flames of their hatred. Like the man said:
“Actual malice is Fox’s only hope.”
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