I wanted to address a separate issue about the Fox settlement. Through this process what we might call the glitz media press was quite skeptical both of the strength of Dominion’s suit and what it meant for press freedoms generally. I noted some of this last month from the two media reporters from Puck News, Dylan Byers and Eriq Gardner. But they’re extreme examples of a general phenomenon.
The general point is that media reporters don’t seem terribly well versed on media law. There was some pretty basic lack of knowledge about the key elements of defamation law. The general reason for that is that most glitz media journalism focuses on a mix of personalities and the business of journalism. And in this case by the business of journalism I mean acquisitions and mergers of the big conglomerates, market fluctuations and so forth. There are lots of media reporters who know the legal stuff cold. But they don’t tend to be the category of reporters I’m talking about here. They’re writing in the digital equivalent of what were once called the ‘small magazines’ or in the niche media press.
In those pieces I noted above Byers and Gardner treated reports that Fox was in a dire situation as a sort of liberal fanfic, untethered to the reality of the situation. But what struck me more than the poor legal analysis was the general sense that those who hoped for Fox to gets comeuppance were either naive about or indifferent to press freedom generally.
There is some real complexity to this question because news organizations are generally against punitive verdicts against media organizations even when the behavior was slipshod or difficult to defend. Everyone makes mistakes. If you’re in the news business you don’t want the consequences to be existential. This is really the core logic of the Sullivan decision which controls defamation law in the United States. You can talk about the different boxes that have to be checked under the decision. But if you step back from those key phrases the decision makes an argument and that argument is that good faith mistakes shouldn’t have existential consequences. If news organizations are always one mistake away from destruction or near destruction they’re going to be cautious and risk-averse in ways that aren’t good for democracy and the civic world generally.
The question comes down to what constitutes a mistake.
There’s a thought exercise I’ve recommended over the years to various people who’ve worked at TPM. It goes like this. When you have a big decision to make, imagine explaining the decision to me once everything has gone wrong. We’ve all been in some version of this situation. Everything’s gone south and you have to explain how it happened. Those are never comfortable conversations but if you there you want to be able to tell a good story. You want to be able to explain how you asked the right questions, ran the right traps. Yes, it went south but you checked every box. You can do everything right and still have things go bad.
I suggest this because it’s the exercise I run with myself. It can be very clarifying. Imagine that conversation, what you’d say, how you’d say it. Often it becomes clear very quickly that this isn’t a story you want to tell. And that’s good: because you still have a chance to change it. If the story checks out that probably means you’ve covered all your bases.
Thinking about this exercise always clarifies the situation with Fox. There were no mistakes. They weren’t trying to get it right. They knew it was false but they decided to run with it anyway because it was good for business. That’s basically the definition not of a mistake but a journalistic bad act. It’s an extreme version of the kind of malice that Sullivan says you should be liable for.
Journalists should see this the way doctors should see an unlicensed doctor getting punished for injuring their patients. You don’t see a ‘but for the grace of god go I’. You see punishment as merited because it brings real doctors into disrepute. Journalists should see Fox in the same light. This isn’t reckless journalism. It’s impersonation. It’s fraud and defamation under the guise of journalism.