Right to Lie

Frequently, Fox News is attacked as having sued in court to prove that they have the right to lie and to distort the news.  Here is a typical example:

“As a U.S. television entity, FOX went to court (AND WON) the right to lie to their viewing audience by way of a right-leaning SCOTUS’ verdict.”

There are websites devoted to attacking Fox News because they sued in court to prove their “right to lie”. Wikipedia describes it this way:

Project Censored called their story one of the “Most Censored Stories” of 2003,[4] claiming that the “Court Ruled That the Media Can Legally Lie.”[10]Robert F. Kennedy Jr. later quoted Wilson in his book, Crimes Against Nature, with Wilson asking “[W]hat reporter is going to challenge a network … if the station can retaliate by suing the reporter to oblivion the way the courts are letting them do to us?”[11]

You’ve probably seen the references to this in political forums, usually in the form “Fox News sued in court for the right to lie!” Even this Snopes message board takes this same approach. And all of these get it 100% wrong. (Though Wikipedia is “reporting on reporting,” rather than asserting the truth of the case.)

Fox didn’t sue

First, the lawsuit was not brought by Fox. It was a lawsuit by a husband-and-wife team (Jane Akre and Steve Wilson) against a local Fox affiliate, because they specifically joined the affiliate to pursue their campaign against Monsanto and were not allowed to do what they wanted. (Akre had been recently fired from CNN.) According to the Fox affiliate station, the pair wanted to air a false and damaging report against Monsanto, and the station managers objected.

When the pair put together this “exposé” of the “horrific” effects of bovine growth hormone, and wanted to air it without changes, the editors demanded that they include evidence from other experts. They refused, and Akre threatened to have them taken off the air by the FCC.

The station managers got rid of the pair, and they sued, alleging many things — all but one of which were thrown out by the court and/or the jury. Only one allegation survived: The jury agreed that the station got rid of the wife as retaliation for her threats, a violation of whistleblower protection laws. (Later, even this finding was overturned.)

Fox never argued for a “right to lie”

At no point did the local station or any of the other media participants argue that they had the right to lie, to distort, or to slant news. They argued that they had to exercise editorial discretion with regard to these two reporters, as was their right, to keep the presentation fair. Many other news organizations  joined in amicus briefs to argue this same thing; these represented the major news players of the US.

But what the case boiled down to, ultimately, was this: Did the last remaining cause of action or allegation of wrongdoing in the suit qualify as a whistleblower termination? The appellate court ruled that it did not — because you cannot threaten a whistleblower action against a policy (the FCC policy was not a law or regulation) — so that was the end of the case.

There was no consideration as to whether or not the station’s editorial suggestions to the husband/wife reporting team amounted to falsehoods, or whether the pair’s own reporting amounted to falsehoods, and which side’s actions were proper.  It’s just that the whistleblowing part could not be true.

It is interesting to me that Akre didn’t argue that the station published bad information, just that it was reasonable for her to believe that they did.

A curious history

Based upon the pair’s subsequent demonstrated falsehoods about the case itself, it is very plausible to me that they were lying in their campaign against Monsanto. These falsehoods seem mostly to originate from Akre; she and Wilson are now divorced, and she’s made something of a career from the stories about this case. Ah, but I see that Wilson himself has a peculiar history and reputation:

Wilson’s beatification as an icon of the left received a big boost with the release of The Corporation two years ago. The film aspires to psychoanalyze companies, concluding that they are sociopaths whose inhuman quest for money and power has huge costs for individuals and communities. Wilson is depicted as a martyr in his crusade against Fox and Monsanto. * * * His embrace of the “progressive” press was calculated, and he achieved remarkable success with the hate-Fox, hate-Monsanto strategy. * * * Leftist outlets adopted Wilson’s spin as truth, peaking with the completely credulous treatment given him in The Corporation. Meanwhile, journalists on the left have never taken note of Wilson’s own questionable reporting on the Michigan Boys, or the fact that the story led to a second license challenge at the FCC, this time aimed at him and his employer.  So one very loud local TV reporter stands on both sides of an issue that could decide how much the federal government will butt into broadcast news. But because his better-known targets are two of the institutions most reviled on the left, few people even care to know whether their man on the front lines is a crusader or a fraud.

At the time the above article was written, the dispute with the Florida station had not reached a conclusion. But he and his then-wife were anti-Monsanto crusaders before they joined the Fox affiliate in Florida, it seems. And Wilson later was involved in investigating later-indicted Detroit mayor Kwame Kilpatrick, though it’s not clear those two bits are related.

A Right to Lie case?

Was this a “right to lie” case? No. If it were, the FCC would have had to have changed its policies. It did not, and in fact it re-issued the station’s license despite attempts by the reporter pair to protest this. From this, one can take that the behavior of the station was satisfactory to the FCC and consistent with their policies.  (I’m not all that impressed by this, but there it is.)

Note, also, that while this case is bandied about incessantly as being about Fox (because it was a Fox affiliate that was sued), Fox defended it because they had no choice. All the other broadcasting companies that joined in the defense, filing amicus curia “friend of the court” briefs on the station’s behalf, volunteered for that role. They had a choice — and they chose to get involved, but are not mentioned in the tirades against the parent Fox News.

This website examines the case in considerable detail.

The real “Right to Lie” case

Perhaps the name “Foundation for National Progress” is not familiar to you. If it sounds left-leaning because of the inclusion of “Progress,” it is:  This is the group that argued, and won in court, that they had the right to lie. You might recognize the name they operate under: Mother Jones Magazine.

By coincidence, I was very peripherally involved in the case. Mother Jones, fabricated some quotes by a Republican campaign promoter (Donald Sipple) to make him look bad. Sipple brought suit, and the court ultimately dismissed the case, accepting the Mother Jones argument that if the reporter reasonably believed that the person might have said something like that, it was okay to fabricate the quote. In other words, a literal quote could be a lie.

The Appeal of the Right to Lie

Donald Sipple appealed this decision, and it went up to the California appellate court. The dismissal of the case was upheld on other grounds (the plaintiff was ruled a “public figure” and thus could not sue for libel) — but the panel of appellate judges did not like the implications. From the appellate opinion:

“… Nor should a decision that the media may publish false reports with virtual impunity be applauded as a victory for the free press. The constitutional value of a free press is that it is free to inform, not that it is free to deliberately or recklessly misinform. As public confidence in the veracity of the press declines, so too does the constitutional value of a free press.”

Since Mother Jones Magazine is actually the Foundation for National Progress, the case is under that Sipple versus that name. Here’s the case.

So: It was a hard-left news organization, not Fox News, who argued for a right to lie in news presentations. The appellate court, to their credit, took a dim view of this notion. And apparently nearly everyone talking about the Fox News case is relying upon their own “right to lie.”

Afterword: The value of lies

Much later, there was a US Supreme Court case that took up this question on an individual (not a news broadcaster) basis. The court wound up divided into three groups, in a case about a California politician who lied about his military service (and many other things). Three conservatives (Alito, Scalia and Thomas) said there was no protectable value to lying about military service, and that Congress had the right to enact the “Stolen Valor” law. Other judges led by Kennedy (with Roberts, Ginsburg, Sotomayor) said that free speech rights triumphed, and that the law was unconstitutional. On the left, Breyer and Kagan argued that lies were valuable. From their statement in the opinion:

False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.

Oh, and the woman who caught the guy lying? The ten-year Marine veteran who knew he wasn’t a Medal of Honor winner? She was fired.

===|==============/ Keith DeHavelle

  • Citizen Tom

    Too many believe the end justifies the means. So long as they can advance either themselves or their “noble” agenda, the truth is of secondary importance.