Fox News knew they were lying about election

[Aridas]

In my opinion, the long term economic health of Dominion was best served by getting Fox to publicly, loudly and repeatedly proclaim they lied about Dominion and that the 2020 election was fairly run.

By taking just the money, my guess is that the funds that own it will siphon off all the cash and look to sell before Dominion collapses as a result.

To poke at three points -

1) Corporations these days are frequently incentivized to focus on the very short term, by the look of it. Sometimes quite heavily so. For example, removing parts of a business that are somewhat costly and not directly connected to immediate profits, but are necessary for long term viability, like R&D departments, is usually rewarded substantially. Even if you're correct about the long term prospects of Dominion, it may well be a moot point.

2) As Lawrence O'Donnell noted, Fox publicly, loudly, and repeatedly telling the truth about how they were lying was likely not actually a punishment that the court could assign in the first place. The court could only deal with some level of fine and the settlement was nigh guaranteed to be much, much greater than anything the court would have granted (with the added note that collecting the awarded money could well end up being a horrendous pain). As part of a settlement, maybe, sure, but that would require Fox be willing, and, well....

3) With the Smartmatic case incoming, it's pretty much a given that Fox would be utterly unwilling, even if just for the possibility of dangling it there (not that they'd likely be willing then, either, of course) or otherwise not simply handing an effectively total victory to Smartmatic by default.

 

[Gulliver Foyle]

To poke at three points -

1) Corporations these days are frequently incentivized to focus on the very short term, by the look of it. Sometimes quite heavily so. For example, removing parts of a business that are somewhat costly and not directly connected to immediate profits, but are necessary for long term viability, like R&D departments, is usually rewarded substantially. Even if you're correct about the long term prospects of Dominion, it may well be a moot point.

2) As Lawrence O'Donnell noted, Fox publicly, loudly, and repeatedly telling the truth about how they were lying was likely not actually a punishment that the court could assign in the first place. The court could only deal with some level of fine and the settlement was nigh guaranteed to be much, much greater than anything the court would have granted (with the added note that collecting the awarded money could well end up being a horrendous pain). As part of a settlement, maybe, sure, but that would require Fox be willing, and, well....

3) With the Smartmatic case incoming, it's pretty much a given that Fox would be utterly unwilling, even if just for the possibility of dangling it there (not that they'd likely be willing then, either, of course) or otherwise not simply handing an effectively total victory to Smartmatic by default.

On point 2) the courts over here have the power in libel cases to impose a public retraction and apology as sanction in libel cases, said retraction having to be given the same prominence as the statements deemed libellous. I'm surprised that's not the case in the US.

 

[The Don]

On point 2) the courts over here have the power in libel cases to impose a public retraction and apology as sanction in libel cases, said retraction having to be given the same prominence as the statements deemed libellous. I'm surprised that's not the case in the US.

It's probably prevented by the first amendment. The idea of someone or some organisation being forced to say something is anathema.

 

[RoboTimbo]

Not just for libel cases anymore!

https://www.twincities.com/2012/11/13/sentence-wraps-up-for-ohio-woman-with-idiot-sign/

 

[RoboTimbo]

And Smartmatic have said that they definitely want an admission of Fox's lying. in addition to $787 million being a good starting point.

 

[JayUtah]

[T]he courts over here have the power in libel cases to impose a public retraction and apology as sanction in libel cases, said retraction having to be given the same prominence as the statements deemed libellous.

It's probably prevented by the first amendment.

Twice. Under the First Amendment, mandatory retraction is unconstitutional as compelled speech. This is true even as a legal sanction for wrongdoing. But also under the other part of the First Amendment, the "press" (which still sorta does include Fox News) enjoys special freedom. The government forcing a news outlet to publish specific content would run very counter to longstanding jurisprudence. There are some interesting legal theories regarding ways to make mandatory retraction constitutional, but they haven't gotten much traction.

And Smartmatic have said that they definitely want an admission of Fox's lying. in addition to $787 million being a good starting point.

They can ask, but under Article III of the Constitution the plaintiff can only ask for a remedy the court has the power to grant. It's a basic tenet of jurisdiction. Even if a jury were to hypothetically grant that prayer for relief, the judge would have to nullify it. However, asking for it in the complaint sets it up to be a point for settlement negotiations. Since a settlement is pure contract law, the plaintiff can maintain that being made whole—whether by court or contract—has always required an admission of fault.

A voluntary retraction usually has the power to lower the damage amount because it negates malice. However, malice is amply evident in the Dominion discovery, so there's probably no incentive for Fox to go that route.

 

[Skeptic Ginger]

Twice. Under the First Amendment, mandatory retraction is unconstitutional as compelled speech. This is true even as a legal sanction for wrongdoing. But also under the other part of the First Amendment, the "press" (which still sorta does include Fox News) enjoys special freedom. The government forcing a news outlet to publish specific content would run very counter to longstanding jurisprudence. There are some interesting legal theories regarding ways to make mandatory retraction constitutional, but they haven't gotten much traction.

Geritol and Listerine manufacturers were both required to retract publicly in new ads the lies they told about their products in their original ads in addition to just correcting future ads.

 

[Aridas]

It's probably prevented by the first amendment. The idea of someone or some organisation being forced to say something is anathema.

When you say this, I'm immediately reminded of mandatory anti-science statements in science classrooms, courtesy of the Republican Party. Mandatory Pledge of Allegiance. Attempts to bring back mandatory prayer. More could be said, but...

The idea of of someone or some organization being forced to say something is very often embraced by exactly the same people who will scream bloody murder about such being anathema and use the 1st Amendment as a pretext when it suits them.

 

[JayUtah]

Geritol and Listerine manufacturers were both required to retract publicly in new ads the lies they told about their products in their original ads in addition to just correcting future ads.

I think you refer in part to U.S. v. J.B. Williams Company, Inc. 354 F. Supp. 521 (S.D.N.Y. 1973) in which J.B. Williams, the company that manufactured Geritol, was found to have violated a law that requires claims of factual safety and efficacy to be evidently true when made in connection with a medicine or medical treatment. This is a restriction on free speech that has a clear public benefit and a clearly defined limiting principle. It therefore stands as an acceptable exception to the First Amendment.

The defendants claimed in their advertising that Geritol cured "tired blood," by which was generally meant conditions such as chronic fatigue or anemia. They were found not to have any scientific basis for those claims, and as such had violated the law and a subsequent order to cease and desist issued by the FTC. However, as I recalled the case and as I read it now, the order was simply to stop advertising the claims. Defendant J.B. Williams was enjoined from making any further unsubstantiated claims of fact, material to the FTC enforcement order. I don't find anything in the court's decision to the effect that the defendant was required to make any affirmative statement to the public admitting any past wrongdoing, disavowing any prior advertising, or agreeing to or endorsing the FTC's findings.

So this falls squarely under enjoined speech, when the proper argument can be made in the law that speech should not be allowed. It doesn't seem to be an example of compelled speech, where someone is forced to make speech of a certain prescribed content. If I have this wrong, let us know.

It is a finding of fact by the court in the Dominion case that the claims Fox made were false. It is a finding of law that Dominion was defamed per se. What the court had to determine was whether Fox acted maliciously by publishing them. Under the applicable law, Fox cannot simply say they were reproducing the claims made by others. In this jurisdiction, you become party to the defamation if you repeat claims made by others with reckless disregard or malicious intent.

Fox admitted in their statement that the claims they made about election interference by Dominion were found by the court to be false statements. What we had hoped is that they would be compelled by the settlement that they knew the statements were false and that they intended to make or repeat them knowing that they were false. That is, we had hoped they would admit to the malicious intent. This would have been useful in other cases.

 

[JoeMorgue]

Yeah but the alternative is to that is companies having to pay out huge sums for all the cancer that their weed killer and talcum powder provably didn't cause.

I don't have a proposal for a system to fix it, but Court systems suck at determining facts.

Let us be clear here. The Election Conspiracy is losing in court because it's unpopular, not because it's factually wrong.

 

[Skeptic Ginger]

I think you refer in part to U.S. v. J.B. Williams Company, Inc. 354 F. Supp. 521 (S.D.N.Y. 1973) in which J.B. Williams, the company that manufactured Geritol, was found to have violated a law that requires claims of factual safety and efficacy to be evidently true when made in connection with a medicine or medical treatment. This is a restriction on free speech that has a clear public benefit and a clearly defined limiting principle. It therefore stands as an acceptable exception to the First Amendment.

The defendants claimed in their advertising that Geritol cured "tired blood," by which was generally meant conditions such as chronic fatigue or anemia. They were found not to have any scientific basis for those claims, and as such had violated the law and a subsequent order to cease and desist issued by the FTC. However, as I recalled the case and as I read it now, the order was simply to stop advertising the claims. Defendant J.B. Williams was enjoined from making any further unsubstantiated claims of fact, material to the FTC enforcement order. I don't find anything in the court's decision to the effect that the defendant was required to make any affirmative statement to the public admitting any past wrongdoing, disavowing any prior advertising, or agreeing to or endorsing the FTC's findings.

So this falls squarely under enjoined speech, when the proper argument can be made in the law that speech should not be allowed. It doesn't seem to be an example of compelled speech, where someone is forced to make speech of a certain prescribed content. If I have this wrong, let us know.

It is a finding of fact by the court in the Dominion case that the claims Fox made were false. It is a finding of law that Dominion was defamed per se. What the court had to determine was whether Fox acted maliciously by publishing them. Under the applicable law, Fox cannot simply say they were reproducing the claims made by others. In this jurisdiction, you become party to the defamation if you repeat claims made by others with reckless disregard or malicious intent.

Fox admitted in their statement that the claims they made about election interference by Dominion were found by the court to be false statements. What we had hoped is that they would be compelled by the settlement that they knew the statements were false and that they intended to make or repeat them knowing that they were false. That is, we had hoped they would admit to the malicious intent. This would have been useful in other cases.

Ianal and don't understand the difference you are making. Here is the order for the Listerine settlement:

J. SKELLY WRIGHT, Circuit Judge:
The Warner-Lambert Company petitions for review of an order of the Federal Trade Commission requiring it to cease and desist from advertising that its product, Listerine Antiseptic mouthwash, prevents, cures, or alleviates the common cold. The FTC order further requires Warner-Lambert to disclose in future Listerine advertisements that: "Contrary to prior advertising, Listerine will not help prevent colds or sore throats or lessen their severity."[1] We affirm but modify the order to delete from the required disclosure the phrase "Contrary to prior advertising."

B. The First Amendment
Petitioner and amici further contend that corrective advertising is not a permissible remedy because it trenches on the First Amendment. Petitioner is correct that this triggers a special responsibility on the Commission to order corrective advertising only if the restriction inherent in its order is no greater than necessary to serve the interest involved.[40] But this goes to the appropriateness of the order in this case, an issue we reach in Part IV of this opinion. Amici curiae go further, arguing that, since the Supreme Court has recently extended First Amendment protection to commercial advertising,[41] mandatory corrective advertising is unconstitutional.

A careful reading of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council[42] compels rejection of this argument. For the Supreme Court expressly noted that the First Amendment presents "no obstacle" to government regulation of false or misleading advertising. The First Amendment, the Court said,

as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.[43]

In a footnote the Court went on to delineate several differences between commercial speech and other forms which may suggest "that a different degree of protection is necessary * * *." For example, the Court said, they may

make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive.[44]

[759] The Supreme Court clearly foresaw the very question before us, and its statement is dispositive of amici's contention.[45] ...

[762] IV. THE REMEDY
Having established that the Commission does have the power to order corrective advertising in appropriate cases, it remains to consider whether use of the remedy against Listerine is warranted and equitable. We have concluded that part 3 of the order should be modified to delete the phrase "Contrary to prior advertising."[61] With that modification, we approve the order. ...

 

[Pooneil]

Geritol and Listerine manufacturers were both required to retract publicly in new ads the lies they told about their products in their original ads in addition to just correcting future ads.

Product advertising is treated differently than plain speech. There are numerous restrictions placed on paid speech for commercial purposes that do not apply to news or other speech.

 

[Gulliver Foyle]

Twice. Under the First Amendment, mandatory retraction is unconstitutional as compelled speech. This is true even as a legal sanction for wrongdoing. But also under the other part of the First Amendment, the "press" (which still sorta does include Fox News) enjoys special freedom. The government forcing a news outlet to publish specific content would run very counter to longstanding jurisprudence. There are some interesting legal theories regarding ways to make mandatory retraction constitutional, but they haven't gotten much traction.



They can ask, but under Article III of the Constitution the plaintiff can only ask for a remedy the court has the power to grant. It's a basic tenet of jurisdiction. Even if a jury were to hypothetically grant that prayer for relief, the judge would have to nullify it. However, asking for it in the complaint sets it up to be a point for settlement negotiations. Since a settlement is pure contract law, the plaintiff can maintain that being made whole—whether by court or contract—has always required an admission of fault.

A voluntary retraction usually has the power to lower the damage amount because it negates malice. However, malice is amply evident in the Dominion discovery, so there's probably no incentive for Fox to go that route.

Another strike against the free speech "absolutism" in the US constitution.

PS I'll retract my earlier statements re Dominion's strategy. If, under the laughably idiotic US constituion, a court cannot compel a party to publicly retract their malicious libel, then Dominion's best and only choice was to grab the money and run.

 

[gnome]

But also under the other part of the First Amendment, the "press" (which still sorta does include Fox News) enjoys special freedom. The government forcing a news outlet to publish specific content would run very counter to longstanding jurisprudence. There are some interesting legal theories regarding ways to make mandatory retraction constitutional, but they haven't gotten much traction.

I would like to ask about this in particular. I'm prepared to learn something I didn't know. Does "Freedom of the Press" actually set up "The Press" as a specially protected group? I had usually thought of it as freedom of the printing press, i.e. a freedom to publish as well as "speak". Or possibly more broadly, protecting speech by an organization as well as an individual.

Obviously I could be incorrect in my interpretation, hence the question. Does an identified "Press" individual enjoy greater free speech protection than any other individual?

 

[gnome]

Let us be clear here. The Election Conspiracy is losing in court because it's unpopular, not because it's factually wrong.

I don't think you can separate the two so easily. One of the reasons it's unpopular is because its factual basis is so tenuous.

Courts are not perfect, but they have more mechanisms than most institutions to isolate fact from popularity. Obviously it doesn't completely work but it's a better place than about anywhere else for that to occur even partially.

 

[Skeptic Ginger]

Product advertising is treated differently than plain speech. There are numerous restrictions placed on paid speech for commercial purposes that do not apply to news or other speech.

Trump is a product Fox advertises. It's a stretch to claim Fox is a news source but especially with this when they were caught on tape saying they needed to lie to sell themselves to their audience.

In addition, it's different when it's part of a campaign. This wasn't clearly identified as campaign speech.

 

[JayUtah]

Ianal and don't understand the difference you are making. Here is the order for the Listerine settlement:

Okay, thanks, that clarifies a lot. Yes, this is commercial speech which can be regulated by the FTC this way for such things as factual claims of efficacy. It's salient that the judge removes from the order the language requiring Listerine to admit past fault. Nevertheless corrective advertising would have to be considered a limited example of compelled speech; in fact, as I discovered thanks to your post, this case establishes the Warner-Lambert standard for determining whether corrective advertising is warranted. This standard is still good law.

In theory, Listerine could simply not advertise. If it doesn't, the order doesn't apply. The order says that if they advertise, the advertisement has to contain that language. That's different than a judge telling Fox they have to issue a certain statement apropos of nothing.

Trump is a product Fox advertises.

Not as the government defines a product.

It's a stretch to claim Fox is a news source but especially with this when they were caught on tape saying they needed to lie to sell themselves to their audience.

Agreed, but frreedom of the press doesn't mean news.

 

[JayUtah]

I would like to ask about this in particular. I'm prepared to learn something I didn't know. Does "Freedom of the Press" actually set up "The Press" as a specially protected group? I had usually thought of it as freedom of the printing press, i.e. a freedom to publish as well as "speak". Or possibly more broadly, protecting speech by an organization as well as an individual.

Obviously I could be incorrect in my interpretation, hence the question. Does an identified "Press" individual enjoy greater free speech protection than any other individual?

Abstractly the Freedom of the Press stands only in contrast to Freedom of Speech according to the mechanism of transmission. It's meant—as you say—to identify fixing an idea in print and conveying it ostensibly to a large audience, as opposed to flapping one's lips within local earshot. It's the freedom to publish, regardless of the character of the content being published. It can be news, scientific research, or a Ziggy cartoon.

However, I've read some language in court opinions that seems to afford classical news reportage (in whatever medium) a greater latitude and protection for its role in facilitating public debate, even if that debate is over what might be factual and therefore might include statements that are initially believed but eventually proven false.

 

[Stacyhs]

If a court cannot rule that Fox has to admit they lied on air, then I have to wonder why Smartmatic's lawsuit lawyers are demanding they do so? Lawyers should know whether or not this is unconstitutional.

I know judges sometimes order people to stand in public with embarrassing signs so what is the legal difference, if any?

The judge had ordered Hardin to spend an hour Tuesday and another Wednesday with a sign reading, “Only an idiot would drive on the sidewalk to avoid a school bus.”

 

[slyjoe]

If a court cannot rule that Fox has to admit they lied on air, then I have to wonder why Smartmatic's lawsuit lawyers are demanding they do so? Lawyers should know whether or not this is unconstitutional.

I know judges sometimes order people to stand in public with embarrassing signs so what is the legal difference, if any?

I think a negotiated plea deal is different than an order from the court. If Fox doesn't want to possibly spend $2.7B, they will go for a plea deal like they did with Dominion. If Smartmatic holds firm on the demand that Fox apologizes, I think there is a chance Fox would agree to do it to avoid the trial.