What obligation do talk show hosts have to fact check their guests' statements?
Dominion Voting Systems' suit against Fox News brings that question to the fore.
A defamation suit by Dominion Voting Systems against Fox News is headed for trial in April. Dominion seeks $1.4 billion in damages because guests on some Fox News opinion shows claimed the company’s voting machines corruptly tilted the 2020 election in favor of Joe Biden.
I’ve defended defamation suits, but am no expert on the intersection of defamation law and the media. Thus, I might be missing something. Nonetheless, it seems to me that the suit against Fox is highly problematic for Dominion.
If Dominion is a “public figure” — and I believe it is in this context — then for Fox News to be liable to Dominion, it would have to have acted with “actual malice.” This means it either (1) knew that the statements by its guests — people like Sidney Powell, Rudy Giuliani, and Mike Lindell — about the voting machines were false or (2) acted with reckless disregard for the truth or falsity of the statements.
I very much doubt Dominion can show that the hosts involved — e.g., Tucker Carlson, Lou Dobbs, and Jeanine Pirro — knew that what Powell, Giuliani, and Lindell told them was false. Dominion asserts that Fox News had a motive to lie about this issue — to curry favor with Trump loyalists in the face of declining ratings. But having a motive to lie isn’t the same thing as lying.
Therefore, the case probably comes down to whether these hosts acted with reckless disregard for the statements’ truth or falsity. This question turns, I think, on what the obligation is for opinion talk show hosts to research the views their guests will present.
Let’s assume for purposes of discussion that with a bit of inquiry, Fox’s hosts could have determined that there was nothing to the complaints about Dominion’s machines. Were the hosts required to perform that research?
A “negligence” standard might require such inquiry, but I don’t think the “recklessness” standard does. Recklessness seems to entail disregard of facts known to the defendant that cast serious doubt on the views the defendant airs. Failure to seek out such facts isn’t enough. That’s more like negligence.
Dominion notified Fox News that reports of corruption on its part were false. Ideally, Dominion’s denial would have caused Fox News to dig deeper, but I don’t believe failure to do so constitutes reckless disregard for the truth. Outfits accused of wrongful conduct routinely deny the accusations. And a Fox News anchor did interview a Dominion spokesman who denied certain allegations that had been made on Fox’s opinion shows.
George Will notes that The Wall Street Journal, which like Fox News ultimately answers to Rupert Murdoch, was dismissive of the election fraud claims. But Fox News hosts aren’t obligated to embrace the views or the skepticism of other outlets — even outlets with common ownership.
To require opinion show hosts to fact check the views of their guests before allowing them on air would limit opinion journalism in a way that, on balance, is probably undesirable. News shows should carefully fact check what they report, but to apply this requirement to opinion shows would limit their ability to present controversial views on a timely basis.
Dominion claims that some Fox News hosts went beyond allowing defamatory views to be presented. It says they “adopted” these views.
Did they? Will notes that Jeanine Pirro told Sidney Powell “good luck on your mission.” This falls short of affirming Powell’s allegations, it seems to me.
Lou Dobbs called Giuliani’s allegations against Dominion “stunning” (which they were) and added, “Rudy, we’re glad you’re on the case.” Neither statement adopts Giuliani’s claims as true.
According to Will, however, Dobbs also lamented the “broadly coordinated effort” to defeat Trump. Depending on how Dobbs described this effort (what did he say it encompassed?) and the context of his “lament,” it’s possible that this remark can fairly be viewed as embracing Giuliani’s claim, rather than simply airing it.
Will also has this to say:
Fox could argue, plausibly if uncomfortably, that some of its performers are entertainers lacking aptitudes, motives or incentives for making journalistic judgments about meretricious statements uttered on their programs. And that what might look like “reckless disregard” for the truth (a component of defamation) was merely indifference to it. . . .
Fox could argue that its focus on Dominion was just show business — that Fox News performers were not preoccupied with accuracy. So, slovenly interviewing by Fox hosts pandering to fickle viewers could be presented as a defense against liability for defamation.
Is Will being serious or is this just his way of taking a shot at Fox News and some hosts he holds in contempt? Either way, Will has described exactly what Fox should not argue. Its defense should focus on its role as a source of opinion journalism promoting discourse by presenting controversial opinions.
That role is an important one, even though some hosts (on both sides of the partisan divide — see the way left-liberal talk show hosts treated “Russiagate”) execute it irresponsibility and sometimes harmfully. The judiciary’s treatment of Dominion’s suit against Fox News should fully protect this role even if it means denying the company a remedy against Fox for irresponsible journalism.