As the Dominion complaint makes clear, multiple segments on shows hosted by the likes of Pirro, Lou Dobbs, Maria Bartiromo and Sean Hannity allowed Trump and his advocates, primarily Powell and Rudolph W. Giuliani, to smear Dominion with little or no factual resistance — and even, in some cases, an endorsement. In her late November interview with Trump, for instance, after Trump included Dominion in his spiel about a “rigged” election during an interview with Bartiromo, the host responded, “This is disgusting.”
Battling a well-drafted complaint such as Dominion’s is typically a see-what-sticks affair. So in a motion filed Tuesday,lawyers for Fox News argue that the network “went straight to the newsmakers” in pursuing its obligation to report on the allegations; that there is no requirement under the First Amendment for news organization to expose the “underlying falsity” of such allegations; that Fox News has “complete protection” to report on government proceedings; that Dominion fails to document “actual malice,” the sky-high evidentiary standard required to prove a public figure committed defamation.
In advancing its “both side” defense, the motion argues that “coverage of the election-fraud allegations was often quite skeptical,” and cites broadcasts from hosts Laura Ingraham and Tucker Carlson (who notably challenged Powell to furnish evidence of her claims), as well as an interview by anchor Eric Shawn with a Dominion representative. Other Fox News personnel — including “Fox & Friends” co-host Steve Doocy — rebutted or expressed doubts about the election-related conspiracy theories. Dominion, for its part, contends that this awareness actually deepens the network’s culpability. “While these handfuls of statements from a handful of people at Fox do not absolve Fox for its onslaught of defamatory statements about Dominion, they do demonstrate that Fox at a mininum [sic] recklessly disregarded, and really knew, the falsity of the lies its most popular on-air talent were repeatedly promoting about Dominion,” reads the company’s complaint.
In resorting to the both-sides defense, Fox News is banking on a doctrine with high brand recognition. America’s early newspapers were unapologetically partisan operations. “People chose their newspaper because it reflected their views,” says Matthew Pressman, a Seton Hall University journalism professor and author of “On Press.” The early 20th century saw a professionalization of journalistic norms, says Pressman, that was driven in part by economics: A shakeout in the number of newspapers forced publishers to attempt to appeal to broader audiences, and thus to tone down biased coverage. Objective news reporting also emerged as an “antidote” to propaganda that circulated during World War I, says Pressman.
The upshot? Reporters for decades mastered the who-what-when-where, but not the why. “You were certainly not going to insert your own judgment, or even necessarily all that much context,” says Pressman. That sensibility had some staying power. Though news organizations added analysis and some edge to their work, the imperative of getting both sides of the story was unassailable to the point of cliche.
And why not — balance is a good thing, right? Well, it depends on what you’re balancing. Quoting a scientist warning of the threat from climate change alongside the meanderings of a denier, for instance, won’t cut it. In a 2014 essay in the Columbia Journalism Review, Robert S. Eshelman explained how the desire for “balance” handicapped efforts to cover that pressing issue. “By now, we should have progressed to intense coverage of policy debates about how best to address climate change, not whether it exists. In this one case, balance has been the enemy of the truth,” he writes. The “debate” over tobacco was another casualty: “Tobacco was the first big, systematic denialist campaign,” Naomi Oreskes, co-author of “Merchants of Doubt,” told Eshelman. “The obvious lesson for journalists is to know that this exists, that it depends on appealing to journalistic virtues of balance and objectivity.” Letting that appeal succeed “leads journalists into a swamp,” said Oreskes.
As the Trump era showed, journalists have struggled to abandon that swamp for higher ground. We agonized for months — or was it years? — over whether to call Trump’s lies “lies.” Far too many stories regurgitated Trump’s quotes without flagging their factual felonies.
Which brings the discussion back to the Fox News filing. Reflecting queasiness among journalists over the suits against Fox News, New York Times media columnist Ben Smith wrote, “I’m reluctant to cheer on a defamation case against news organizations, even networks that appear to be amplifying dangerous lies. Companies and politicians often exploit libel law to threaten and silence journalists, and at the very least subject them to expensive and draining litigation.”
The Erik Wemple Blog shares that reluctance. But litigation forces Fox News to defend its indefensible programming in a public forum. To wiggle out of a suit over a false accusation on Tucker Carlson’s show, for instance, the network’s lawyers had to argue that the program wasn’t actually conveying sober, factual news. And now Fox News is arguing that the Trump-Powell-Giuliani lies about the election constitute a “side.” “There are two sides to every story,” reads the network’s motion. “The press must remain free to cover both sides, or there will be a free press no more.”
We’re glad that’s on the record. “Introducing groundless doubts about the validity of a free and fair election is among the most serious forms of demagoguery there can be in a representative democracy,” notes New York University professor Jay Rosen in an email. “Assisting in the circulation of those doubts is not what a real news organization does.”
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