FOX TRAPPED IN THE COOP; CHICKENS RUN FREE!

Fox is screwed. And it's about time.

Liberal Supreme Courts since 1964 have consistently erected substantial barriers to protect libelous speakers from attack by victims seeking compensation for defamatory statements. The construction project was entirely political. The Court's justification for adding protective walls around defamers was always "The First Amendment". But in reality, the Amendment provided no real support for those hurdles. It simply says Congress shall make no law abridging the freedom of speech or of the press. 

The Supremes nevertheless went on a building spree, starting with an effort to protect the New York Times from a $500,000 libel verdict affirmed by the Alabama Supreme Court arising out of a civil rights dispute.

In that case, the Court manufactured the "actual malice" requirement. They decreed that in order to succeed, the libel plaintiff had to prove the defendant published its statement with "actual malice." That is legal mumbo-jumbo for saying the defendant knew that its statement was false, or that it had serious doubts about its truth and recklessly published it anyway.

This restriction was originally applied only to plaintiffs who were "public figures," but the definition of that phrase has been so expanded over time that it has become virtually meaningless.

But that wasn't enough: at common law, in a civil case questions of fact are to be decided using a “preponderance evidence” standard,  (i.e. there is more evidence on one side of the scales than the other, no matter how slight the difference may be). But the Court then added a new requirement: in a case where a plaintiff had to prove actual malice, he had to do so by something called  "clear and convincing evidence." More legal mumbo-jumbo. That is not quite the criminal standard of "beyond a reasonable doubt" but it's higher than a preponderance of evidence. Bottom line, the Court provided another barrier to a plaintiff seeking to gain compensation for having its reputation destroyed by an untruthful speaker. ( I will give a nickel to any reader who finds language in the First Amendment that supports this change.)

And when those fences were deemed insufficiently protective to libelous speakers, the Court imposed yet another barrier: even when a jury found actual malice by clear and convincing evidence, an appellate court was entitled to review that finding "de novo." That means they could look at the proof and reach their own conclusion, whether it agreed with the jury or not. So a libel victim had not only to persuade a unanimous petit jury of six or more, it then had to persuade a new jury consisting of appellate judges. (And perhaps ten or more of them in an en banc appeal!)  

This burden, in my judgment, was a gross violation of the Seventh Amendment, which reads:

 "the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of common law." 

It is difficult to see how the Court could find a common law exception justifying a de novo appellate review of the jury's actual malice finding, inasmuch as the requirement of an actual malice finding didn't exist at common law. It was invented in 1964!

But despite all of those protective barriers, Fox has managed to climb the chicken wire and trap itself in the coop.  Its promotion of the Big Lie has now been revealed to be willfully and knowingly dishonest. Not only are there texts among its broadcast stars admitting their "Big Lie" guests were unreliable "nuts", none other than Chairman Rupert Murdoch has apparently admitted under oath that he believed the election-denier guests were liars, and he could have stopped the Big Lie promotion on his network but didn't do so. 

Why? 

Money, money, money.

I believe the trial jury will conclude the failure to stop promoting the Big Lie was entirely financial, and Fox feared that if it stuck to the truth, it would lose its audience. 

The irony is that if the jury concludes Fox libeled Dominion Voting Systems (the plaintiff in this case and a major victim of the Big Lie), with all the help from prior liberal Courts, Fox is still screwed. The current uber-conservative Supreme Court has nowhere to go because if, on appeal, it applies its conservative constitutional tests of originalism and textualism, plaintiff's case is much stronger! 

(By the way, Dominion seeks $1.6 billion in compensatory damages. And there is no cap in Delaware on the award of punitive damages!)

So we can sit back and enjoy the humiliation of Fox trying to explain how the deception of its audience is speech that promotes First Amendment values. (Not to mention the damage to basic Constitutional values involving the peaceful transfer of power pursuant to the vote of the populace.) 

A bientot!

..........................................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.