Fox News hosts seem to make the case that they acted with malice, Mississippi Press Association executive opines

By Layne Bruce

The first time I recall hearing the phrase “absence of malice” was from a film of that title released in 1981 starring Paul Newman and Sally Field.

Newman plays a liquor wholesaler falsely accused in the disappearance of a local union leader and whose life is wrecked when the news hits the papers. Field is the reporter who’s manipulated by a corrupt district attorney who wants to squeeze Newman for information about another case.

It’s a convoluted work of fiction, but it’s one of my favorite movies about journalism and what can go wrong when people motivated by careerism forget that their actions can have very real and dramatic consequences for many people around them.

Layne Bruce

After studying journalism in college, I came to understand “absence of malice” as a legal term that also represents an incredibly high burden of proof that must be met by litigants who claim they’ve been defamed by the press.

When a plaintiff sues a media outlet for defamation, they must prove that whatever inaccuracies the outlet reported were borne of actual malicious intent. In other words, the defendants in such cases must act intentionally and spread false information knowingly.

That must be provable. It’s difficult to do, and it’s one of the cornerstone protections of freedom of the press in this country.

But if we were going to write a screenplay based on the defamation lawsuit filed against Fox News by Dominion Voting Systems for the reporting of false claims of fraud in the 2020 presidential election, it wouldn’t be a drama; it would have to be a farce. It seems like a black comedy of lies, hubris, and gaslighting.

A cursory review of text messages entered into the record and recently made public between Fox News personnel leaves little doubt the producers and hosts knew claims against Dominion that aired repeatedly on the network and sister channel Fox Business were bogus.

Marquee hosts Tucker Carlson, Sean Hannity, Laura Ingraham, and others engaged in numerous conversations about the veracity of the claims against Dominion and even the sanity of the lawyers pressing the conspiracy theories on air and in daily press conferences.

“No serious lawyer could believe what they were saying,” Ingraham says in the text messages. “Sidney Powell is a bit nuts,” she wrote in another. That did not keep the network from repeatedly putting Powell, a key lawyer at the center of the scandal, on air to regurgitate nonsense about alleged fraud, krakens, and other incoherent conspiracy theories.

That Fox News allowed this, and in so doing spread the toxicity to millions of viewers daily, goes a long way to addressing a heretofore almost unattainable bar of proving malice.

And by putting their private thoughts into texts while engaging in the apparent fiction of “just asking questions” on air, the hosts have exposed the network to a potentially landmark—and hugely expensive—judgment against it.

They’ve single-handedly lowered the bar for proving malice.

Wall Street Journal columnist Bill Galston on The Bulwark’s “Beg to Differ” podcast laid out four points necessary to prove malicious intent and reckless disregard to a jury:

• A false statement purported to be fact. The text messages prove network personnel knew the claims of voter fraud by Dominion were bogus.
• Publication or communication of the false statement to a third party. Fox hosts did this nightly for weeks to viewers numbering in the millions.
• Fault amounting to “at least negligence.” Galston contends the repetition of falsehoods over network air was not just reckless disregard, but a “deliberate lie” motivated by fear the network would alienate its audience if it debunked the conspiracies.
• Damages must be sustained to the reputation of the plaintiff. This may the easiest claim to prove. How many of us had heard of Dominion as a company before it was dragged into the contrived effort to throw the 2020 election results into doubt?

“If this isn’t a slam dunk case after the revelations that came out because of the (disclosure of the text messages), I don’t know what is,” Galston concluded.

This is by no means the first time Fox News’ dirty laundry has been aired in public. But it is for sure the first time the network has been so nakedly exposed to potential damages that might have a lasting effect on its business practices.

If malice has not been proven in this case, I’m with Galston—I’m not sure it could ever be proved. Whatever the ultimate decision, the case will be taught in future media law classes.

And I can’t wait to see the movie.

Layne Bruce, a former journalist, is executive director of the Mississippi Press Association. His email address is lbruce@mspress.org.