The Problem With Jon Stewart - Liar, Liar, Network on Fire: The Legal Case Against Fox News

Episode Date: February 22, 2023

Thanks to the Dominion Voting Systems v. Fox News filing, we now know what we’ve always believed is true: Fox News will do or say anything to retain their power, even if it means lying—over and over and over again—to their viewers. The question is: Will they finally be held accountable this time? We’re joined by RonNell Andersen Jones, professor of law at the University of Utah, for a lively discussion about defamation law (really!) and the possibility that Fox News might actually have to face the music. Writers Jay Jurden and Robby Slowik are also here to talk about the larger media implications of this case and what it has in common with The White Lotus.Season 2 is now streaming on Apple TV+.CREDITS
Hosted by: Jon Stewart Featuring, in order of appearance: Robby Slowik, Jay Jurden, RonNell Andersen Jones Executive Produced by Jon Stewart, Brinda Adhikari, James Dixon, Chris McShane, and Richard PleplerLead Producer: Sophie EricksonProducers: Zach Goldbaum, Caity Gray Assoc. Producer: Andrea BetanzosSound Engineer: Miguel CarrascalSenior Digital Producer: Freddie MorganDigital Producer: Cassie MurdochDigital Coordinator: Norma HernandezSupervising Producer: Lorrie BaranekHead Writer: Kris Acimovic Elements Producer: Kenneth HullClearances Producer: Daniella PhilipsonSenior Talent Producer: Brittany MehmedovicTalent Manager: Marjorie McCurryTalent Coordinator: Lukas ThimmSenior Research Producer: Susan Helvenston Theme Music by: Gary Clark Jr.The Problem With Jon Stewart podcast is an Apple TV+ podcast, produced by Busboy Productions. https://apple.co/-JonStewart

Boy, you know when you've spent your life screaming at Fox News in bars and hotels and your house, and then the emails finally come out that say, oh yeah, everything you thought about them is worse than you thought. We're going to be talking about dominion voting system versus Fox News, the defamation trial that shows you in the words of the great Dennis Green, they are what we thought they are, which is the worst. Hey everybody, welcome to this week's podcast, The Problem. With me, John Stewart, you know me as The Problem. Don't forget to watch the Apple TV Plus show, more episodes are coming. We're going to catch up this week on this dominion lawsuit against Fox News,

the computer company, I guess that runs a lot of these voting machines, and the right was pointing at them as being, I think at first, Sidney Powell was suggesting that it started in Venezuela and that the Italians were, in Italy, they were changing the votes through a Chinese sound. I mean, the whole thing was just utterly bizarre that it had been created to sway things. Fox News Corp let these folks come on the air and run with this monstrosity of a lie, and that was the genesis, I think, of the suit. We're also going to talk to Jay, Jordan, and Robbie Sloick, our writers. Hey everybody. What is up, kids? Nothing much, kind of dealing with the fallout of what you just described, and looking at Twitter after that. Looking at Twitter after the

Fox case. Yes, and seeing if they're going to talk about it at all, I combed through Fox News and Tucker Carlson's tweets, and I do want to say up top, I didn't see a single happy Black History Month tweet. Are you serious, Jay? Not a one. Let me tell you something, it's an oversight, and here's why, because he believes every month is Black History Month, and he believes that why separate it out when that's how he lives his credo? Yeah. Behind the scenes, all the producers are talking about Black History Month. You know what? Happy Black History Year. You're going to get the emails he's sending to Hannity. Why the fuck are you not talking about Black History, Hannity? We're going to lose our audience. They're going to shift over to BET. This is serious.

Look at our stock price. It's terrible. It is funny to see what he has promoted in the sense there was like, he had like seven days ago where he was talking about the balloon, and now it's just all his upcoming Fox Nation special on the death of comedy, and two days ago, right back to gender. Yes. Well, they're going to go right back to what they do, which is send the emails about, we're going to use gender as a wedge issue. I mean, what it reveals is the thing that we have been screaming about for two decades, which is this is a purposeful strategy to divide the country and gain political power through fear and lies and whatever the fuck else it would take. We've known about this. Listen, man, I sat in Roger Ailes' office for an hour.

Well, John, I want to know how short was your skirt? Oh, it was short, baby. And he said, just turn around. Oh, you are circumcised. All right, fair enough. And this is what the argument was for a year, which is you are a cynical bastard who is doing everything he can to destroy any legitimate criticism that might be leveled against Republicans or conservatives, not in an effort to win a debate, but to destroy any obstacles that are in your way to consolidate power. And that is it. Full stop. It's just wild to watch because terrible, terrible journalism, amazing Netflix series. You know what I mean? That's what this feels like.

It's narratives. It's narratives. This is truly a soap opera. Right. Yeah. And the level of projection around them every single day around all of this type of stuff, the fact that they dedicate hours of airtime to George Soros is a foreign billionaire trying to influence our politics. And then their inbox is flooded with emails from a foreign billionaire being like, you need to do a better job influencing our politics. Well, that's the key. Their problem with Soros is how ineffective he is. But by the way, it's not just media. This is part of a multi-prong strategy. If you notice what happened on the right is any of the institutions in America, and by the way, this is not to say that there isn't

unbelievably legitimate criticisms of colleges, media, newspapers. There is absolutely huge swaths where those institutions fall down, fail, need to be improved. But their strategy was we will devalue them, we will deauthorize them, and then we will build parallel structures, parallel college institutions, parallel think tanks, parallel news organizations. And rather than use them to properly promote a conservative versus liberal debate, we will skew reality and create, and it's the last of us. Let's create an army of zombies. And the core decepts is the fear and disinformation and misinformation. I mean, it's fucking amazing. It's just so deeply effective as well. I mean,

everyone is fighting for a very small sliver of the population where they get to create whatever reality they want with that sliver of the population. Well, what you hope is, and this is my only hope, is that finally other institutions that are meant to earn authority by being correct or being smart will finally go, oh, fuck off. And will no longer say, oh, we're not getting the rights viewpoint enough on our network anymore. When they realize that that's not the rights viewpoint, that's the strategic viewpoint that they employ to gain power. It has nothing to do with right or wrong. It has nothing to do with conservative versus liberal. It has everything to do with consolidating power by any means necessary.

And they have so worked the refs in the media atmosphere that they're scared shitless. People at the networks and the other cable networks are scared shitless. Listen to the nonsense they spew. We want to get back to objective news reporting and call it balls and strikes and all that. Shut the fuck up and tell us what's going on for real and be confident about it and don't back off because you're getting calls from Rupert Murdoch or that there's a giant audience of Fox News zombies that are calling you out for not putting lies on the air, have some fucking balls. That's the biggest thing that changed over the past seven, eight years is you saw CNN and ABC and NBC have to be like, well, I guess we have to talk about this. And everyone was like,

you don't have to. And they're like, no, we have to give a couple of hours. We have to let Rick Centaur and be like, this is why gay people are icky. Like it was there was just so many moments where I'd be like watching. I'd be like, y'all don't have to do this. You want to. And they've so effectively crafted that narrative that people just say the liberal New York Times in their head. And then you flip through the New York Times. It's like, do we need four more wars in the Middle East or trans people, human beings? And you're like, there's nothing liberal about this paper. That is the most fun I've been having. Is that like what five years ago, Donald Trump would have been like, the New York Times is a shit rag. And now today, all of my friends with septum

piercings are like, we agree. We agree. Thank you, Don for standing up for them. No question. And it is that because the weird thing is on the right, they have the confidence of their convictions. What they believe is the worldview. And in some ways, it's why they've aligned themselves with Russia and Putin, which is Western civilization is under attack. And America is weakening itself by being diverse and not being Christian enough. And so they've devised this strategy that they employ in all other areas. And it is a strategy and it is purposeful. And it is absolutely in no way truthful. It's just creating these sort of Potemkin institutions that exist, not to create information that helps their cause,

but to create strategies that rile up their audiences. They're looking for followers. It's so funny because two days ago, Tucker Carlson was like, Joe Biden hates straight white men. And I was like, you mean that old straight white man hates old straight white people. I don't think that's the case. We're like, nah, because you know who's pulling the strings. They said diversity. They had a picture of Susan Rice up there. It's just so weird to see them go. So we have an argument. How do we find the science and the numbers to justify this cultural argument? They don't need to. And all they'll do is say that, you know, liberal media is facing a credibility crisis. I honestly, my biggest hope here is that they can no longer look you in the eye

when they're saying they're bullshit. I still think they will. Because one of the, one of their greatest strengths is lack of shame. And that lack of shame allows them to continue this charade. I mean, it's, it's imagine it's like this. You're in the Wizard of Oz. You've gone through all the trials. The monkeys have flown through. You've finally gotten to the wizard and they look behind the curtain and they find the wizard. The wizard, you finally realize this whole thing is being orchestrated and you bust him on it. And then he turns and goes, no, no, no, that's not, that wasn't me. That's not, that's what they'll do. There, there will be no self-awareness. There will be no, you got me. There will be a doubling down

that, oh no, this is out of context and we're not lying. And there's not anything. You pull back the curtain and the wizard just goes like, yeah, who was saying all that? That's, that's you. Here's your problem. You don't have a heart. You don't have a brain and you don't have courage. Whoa. Okay. We have a collection of these busted moments already, you know, when they said in court that no reasonable person would believe that Tucker Carlson is stating facts as a defense, which would be a good defense if there was a law in this country that you had to be a reasonable person to vote, but that's not the rules. How can the legal argument be the same as you're a worst friend from college? Well, okay, you'd have to be stupid to actually think that. You'd have to be

dumb. What if they just, what if they just go into court and they go like, your honor, I'm sorry, my news organization was really drunk. My news organization didn't mean anything by that. Listen, hey, hey, hey, let's just all go peacefully here. I'm telling you, man, it'll never happen again. I got him. I'm going to drive him home. You don't have to worry about this news organization ever again. Your honor, I can't, for the fans, I can't break kayfabe. You know, I've got a character all the time. By the way, that is boy, you couldn't be dead on. For those who are fans of wrestling, that is exactly what it is. It is a nudge, wink, wink little world that they've created where they all had to hold onto it. But our next guest actually has the less emotional,

more legal arguments about this case. So I'm going to go to her right now. She's the Lee E. Tidalbaum Professor of Law at the University of Utah and an affiliated fellow at the Yale Law School Information Society Project. Professor Ron L. Anderson Jones is going to be joining us. So to give us lay folk, that's what you call those that are not in the professional realm here, about what is going on with the, not just the cynical nature of this organization that claims to be a news organization, but the legal ramifications, if there are any legal ramifications, we're going to welcome an expert in this, Ron L. Anderson Jones. Thank you so much for joining us today to discuss this Dominion lawsuit against Fox News.

Sure. Happy to be here. Now, I am not a big city lawyer. I'm just a simple man. But it seems to me that if you purposefully lie consistently and you understand that you are lying. Now, I don't know the legal term malice of forethought or malicious or any of those things. There should be some ramifications to purposeful lying. There are. And notwithstanding your lack of big city lawyer status, it turns out that you've summarized it pretty well. We have purposefully, importantly for constitutional reasons, very high bar in this situation. We don't want it to be particularly easy to sue for defamation,

particularly on matters of public concern. And when the folks that are bringing the suit are public figures or public officials. And in fact, I and others who work in this space spent a lot of the Trump era emphasizing this. You might remember that then candidate Trump in 2015 famously said he wanted to sort of, his words were open up libel law, make it really easy for folks like him to be able to threaten and bring suit against critics. Wait, wait, wait. Are you suggesting that the right in this country is being hoisted on their own petards? And that they are wearing petards? Is that what you are suggesting? There is definitely a gap between what Trump has advocated should be the ease with which somebody

can bring a defamation suit and the ease with which Fox would like there to be a defamation suit in this setting. And we do know that constitutionally the Supreme Court has made clear in a case called New York Times versus Sullivan that for first amendment purposes, for purposes of preserving vibrant, open debate on matters of public concern. And also for democracy preservation purposes, making clear that public officials and public figures can't weaponize defamation law to try to silence their critics or tamp down dissent. We want it to be really, really hard to bring these sorts of suits. And so the standard is a standard called the actual malice standard. Actual, actual malice.

Actual malice. Yes. Not just sort of malice. It's really a funny term to use because it means neither actual nor malice. It means knowing falsity or at least reckless disregard for the truth. And the idea is that journalists and other speakers and commentators are sometimes going to talk about matters of public concern in ways that aren't perfectly careful, that are a little bit sloppy, that lies and falsehoods are sometimes going to make their way into public discourse and we're going to counter them in a wide variety of ways. But it may be inadvertent. It may be something that

occurs but is not necessarily done with a forethought because I'm going to start using legalese, a forethought, which is like a forethought with the letter A in front of it. Now, so this standard of actual malice, this is what's been established by New York Times versus Sullivan. And the actual malice is that you have to knowingly be repeating or allowing falsehoods. And so if I'm reading the text messages that they're saying, there are many from the Fox News host which say things like, these people that we are putting on the air are fucking crazy. They are lying. The one Fox News reporter, I believe her name is Jackie Heimer, she reported that these election lies were not true and they were texting back and forth,

you must fire this person. Yes. Again, in terms of the types of things you've seen in your long history, studying these types, how blatant is the disregard for truth and standards in this case? So this is far and away the most evidentially supported claim of actual malice that I've seen in a major media case. We should note that these cases almost never get to this stage. They settle. And in fact, they often settle because they are so hard to prove. The actual malice standard is so, so difficult to achieve. And when it is proven, it's often not knowing falsity. Instead, it's this body of circumstantial evidence that they should have known. They had a high degree of subjective, sort of probable awareness. So we're piecing together in a lot of

those cases. This is not that. This is not that. This is direct evidence of knowing falsity. The famous case that I teach to my students where the Supreme Court says, essentially, it will almost never be the case that you'll be able to prove this up sort of out of the horse's mouth. The likelihood that you will find evidence of them saying, we know this is a lie and we would like to move forward with it anyway, is deeply unlikely. And here there is this filing contains just this trove of evidence of emails and text messages and internal memos. It's rare, both as to the volume of the evidence and as to the directness of the evidence and also as to the sort of subcurrent, the narrative of the motivation of this gravitational pull that we seem to see.

This even gives motivation, though. This is when you talk about the explicitness. When you've got Rupert Murdoch, who is the owner, head, de facto emperor of Fox News Court, explicitly stating to the president of Fox News, we must do what we can to help Republicans, and this is later, gain control of the Senate. We're in such different area here as far as, forget about even just the actual malice of allowing the lies on the air. We have a propaganda arm for a political movement that is operating with impunity. I mean, I don't even know where to start with this. I mean, I think one of the things that's really interesting about this filing is that sort of a very important part of the narrative arc of Dominion's filing here is this sort of

subcurrent about the deep interrelationship between Fox News and the Trump administration and the sort of key players in both spaces, advising, seeking feedback from, fearing, wanting to coordinate with. And the narrative that has been woven in this filing is really interesting because a piece of what the lawyers for Dominion are essentially suggesting is that a lot of what Fox News and the Trump administration have been saying in their sort of enemy of the people framing. They're fairly consistent attacks on the mainstream media as being elites who engage as political operatives and mouthpieces of a political party. The very thing that they are doing. And the filing here strongly suggests that that's the

sort of dominant model at Fox News, and they tie this in to make their case about actual malice, to suggest that they were motivated to sort of keep this audience share that was gravitating at Trump's suggestion to Newsmax and other organizations that were more willing to engage these election denialism claims and sort of wanting to preserve them. They got primary. They got primaried by the right by trying to hold to a certain amount of truth. But these feel like two separate issues here. One is, we can deal with this from the Trump administration aspect of it and the fact that Fox News is nervous about their business model. But there is a larger point here, which is Roger Ailes began this network as a way to deflect

criticism and any kind of factual attacks on the conservative movement. This was created purposefully not to engage in a fact-based, more conservative worldview that would seek to illuminate and articulate various points of view from the more William Buckley side of the aisle. This was done explicitly with the purpose of devaluing legitimate criticism, attacking any kind of threat that the conservative right may have found. This is not in any way something that, I mean, legally, I don't know that you could ever do anything about it other than this part about actual malice and knowing that they were lying. But they've known they were lying

from the get-go, from jump, from the minute they came on the air, they've known. It's the feature of the network. Not only do they understand that they're lying, they have to lie because they have to lie not just to keep the audience, but to keep this movement in power. And that's the larger question. That's right. And I think it's the complexity that we see about the use of defamation law as a tool to remedy large-scale societal falsehoods, right, which is what we're trying to do here and what- A propaganda outfit. This is not the only defamation case surrounding the so-called big lie, right? There's another

voting machine company that is bringing a defamation suit. There are separate defamation claims against Sidney Powell and against Rudy Giuliani. And one big question that we have here, I mean, defamation law is designed to do a smattering of things. I mean, one thing that it is definitely designed to do is sort of pay damages for harm done, right? Dominion here says, you ruined our reputation and you owe us for that. But another goal that defamation law has is a sort of broader remedial goal, which is to sort of fix the lie in the public space, sort of set the record straight and have a judicial declaration of the truth. And one thing that is sort of getting much less attention than sort of Fox News and when it knew it is the sort

of portion of this brief that Dominion has to prove falsity. And so there's a huge segment of this brief that sort of makes its way carefully through disabusing some of the falsehoods that we're told here, really declaring a judicial record about what really is the truth about these voting companies and about the election integrity. And so we have this sort of separate thing happening here. But one of the pieces that's tricky about it is that that remedial role really presupposes truth seekers on the other side of it. And so if what we have are media consumers in America who are consuming media not to seek truth, but rather to sort of reaffirm their own cultural or political identities or to stay in a comfort zone that doesn't require them to credit any

facts that conflict with their preconceived notions of the world, then it's harder to think about the capacity of defamation law to dislodge those falsehoods. Are you suggesting in some ways, Professor, that the Fox News viewer might be a snowflake? Are you suggesting that they are so fragile that if they were to be presented with facts that are counter to the world view, the conspiratorial world view that they have about power elites seeking to keep the conservative and right wing movement down, that they would fall apart or at the very least go to OAN? I mean, what it brings up is the entire world view that they broadcast is utterly upside down. It reminds me of, you know,

years ago, I had a friend of mine who was a journalist who was arrested in Iran and he was sent to Evan prison. And the charge was that he was a spy and that he was through his through the auspices of working at Newsweek was actually sent to destabilize the Iranian regime. And he was held in solitary confinement in Evan prison. What he explained to me was the reason that that comes so easily to them is their reporters, they are spies. And so what it says to me is this comes easily to Fox News because they are an organization that is sent here to lie and destabilize the American government and the American democracy. How is this not in some ways espionage? How is this not utterly, it's such a much larger issue.

And how is Rupert Murdoch, you know, he can't have these organizations in other countries that have tougher libel laws. He can't get away with it. How is there not a RICO case against Murdoch? How is there not a class action lawsuit by the founders against an organization that is explicitly lying to destabilize our democracy? This is mind blowing. Lachlan Murdoch is suing an agency in Australia right now called Crikey, which is like a tiny publication for defamation. I mean, the hypocrisies are legion, but shouldn't there be more peril here? Two points, I guess. One point is that defamation law is sort of by definition a limited tool, right? Tort law has its boundaries. And in fact, it has really significant boundaries

because you can't actually bring a defamation suit purely for purposes of combating a lie. It has to be a reputation harming lie, right? There has to be somebody on the other end of it who was defamed. So there are huge swaths of conspiracy theories and falsehoods that are propagated in the media and in social media that aren't really... Defamation law can't be the vehicle by which we legally challenge them. We have to have somebody like Dominion on the other end saying, you told a false and defamatory statement and it caused harm to us. Someone has to have standing. Yeah. And broad claims, in fact, some of the most arguably most dangerous sort of widespread societal lies of recent years, something just

a broad-based statement like the election was stolen or vaccines contain magnet codes or microchips. Without there being someone who is the defamed party on the other end, defamation law isn't the tool that we can use. And so defamation law has to be part of a wider sort of complex array of tools that are used to tackle disinformation both sort of on the supply end and on the demand end. And I think we really sit at a moment of sort of complexity of trying to think about how we tackle conspiratorial thinking and lies that are appealing to people and so spread with such virality. And designed to do so and strategized to do so. That's right. A big piece of this claim is that a big piece of the claim in this case is that

there was a strategic decision. There's a memo, it's not getting a lot of attention, but there's a memo that's in the evidence in this particular file where someone at Fox says, this kind of conspiratorial reporting sort of seems to be what the Fox News viewers are craving and they're making reference to what's happening over on Newsmax. And it's a sort of appetite acknowledgement, right? There is an appetite for this and we fear, and particularly the way that the briefing is set up, it's designed to show the story arc after Fox News called the election for Biden in Arizona and that there was a great deal of upset and folks sort of gravitated over to other organizations that were more willing to platform

Sidney Powell and Giuliani and others who were spreading this information about Dominion. And so thinking about the nature of the audience, thinking on the sort of supply side, is a really complicated question. The filing sort of suggests that Fox was stuck with a problem of its own making. That is that it had set folks up to be so loyal and to see this interconnection between Fox and the Trump administration and the broader conservative movement that when Trump himself came out and said, everybody abandoned Fox and head over to Newsmax to get more of this election denialism, they did so and then Fox was left in a panic. And you're suggesting in the way that let's say Dr. Frankenstein may have an issue with

when the monster turns and says, I think maybe I'd like to take your head off and then there's something that they have to do there and everybody always thinks they can be smarter at that. But is there anything to, so let's look at maybe some of the defamation cases that were in the popular culture over the last couple of years. The main one I can think of is that kid Nicholas Sandman from Covington High School, right? And he sued a bunch of outlets for defamation of his character. And I don't know if he won the cases, I believe they were settled. They were, yes. But imagine if in discovery, the emails from CNN hosts said, I know this kid is okay

and that he didn't do anything wrong. But we are going to keep sticking it to him because our audience doesn't like him and this flatters their prejudice. And we're just going to keep coming at him because it's good for our business. Yes, that's actually a very, that's an excellent example of the dynamic that we seem to have here. And it also, to be truthful, right, I teach in this area, I teach law students these cases and I have to write exams where I test their ability to make these sorts of arguments and to work on behalf of clients in this space. And in some respects, the kind of fact pattern that is set forth in the filing from Dominion that's just been made public is too easy. That is,

it's too, too, it wouldn't, it wouldn't be a good enough case. If you were teaching a remedial class, if this were to line up like this, they would say, my God, this would never happen. It's too on the nose. So you can't teach it in a law school class because it's such a slam dunk. Yes, I haven't ever written an exam that had direct evidence of knowing falsities because it doesn't happen with any real frequency. We should also note, it might be of interest, there are huge portions of this filing that are still redacted. Why would they be redacted? Like a nerd, I read all almost 200 pages of it. There are portions that Fox has fought to keep from public view for a variety of reasons,

probably arguing a reporter's privilege or confidentiality or internal rules. And there it's being litigated. There are things in here that are worse than what we are seeing. The things that we are seeing are the things that Fox News thought, all right, we can let that go, but there is more underneath that. I mean, this is a criminal enterprise. Either they thought that they could let it go or they thought or they lost in an effort to redact it. But there are portions that I'm really quite eager to see as a defamation scholar. There are portions where it says something like key people involved in the stories involving Dominion squarely acknowledged that it was false and that they were moving forward for these reasons.

And then there'll be a full page of blacked out language. And then the lawyers in the aftermath of that say exactly as if out of the mouths of Fox News, someone at Fox News has made their case for them is the suggestion. So contextually, there's some suggestion that there is evidence that we've not yet seen that further promotes their argument about actual malice. It's also the case that Rupert Murdoch was deposed after this brief was filed. And so there's additional evidence that might have come from the deposition of Rupert Murdoch that hasn't been included in this. Professor, is there a difference if the Fox hosts are saying we're doing this because our business model depends on it? Or we're doing this to keep the right in power?

Does it make a difference legally? What their justification is for this actual malice? No, in fact, this is the reason why actual malice is such an sort of inappropriate term here. The law doesn't really care about Fox's relationship with its viewers or Fox's relationship with the Trump administration. The law cares about Fox's relationship with the truth. Well, right now, I think they're not even friends with benefits. Their relationship with the truth is as cold as ice. They are exes that haven't seen each other in maybe 20 years. If the defamation plaintiffs here can demonstrate that they have no relationship with the truth, or that more to the point that their relationship with the truth is that they knew that what they

were saying was false and they said it anyway, or they acted with reckless disregard for the truth, then what caused them to act with reckless disregard for the truth isn't particularly pertinent, although you can see how it's helpful. The filing itself weaves this narrative arc that is suggesting that it sort of makes sense in terms of both the kinds of statements that they're making about knowing falsity, but also the sets of statements that they're being made about what might draw them to want to continue to discuss things in this way. All really powerful evidence to present before a jury if they move forward with trial that suggests that the actual malice standard can be met. We should note that, I mean, part of what Fox is saying here, we haven't

seen the full response from Fox here. Well, we've seen their PR department which says you're cherry picking. You're taking only the things where we state explicitly that we know we are lying. I mean, what about the times when we don't say that? What about the times when I didn't stab the person? Sure, and that would not, of course, be the absence of, that's not the absence of actual malice. That's just the absence of more actual malice. But it is, of course, the case that the foundational First Amendment arguments here broadly speaking about what we want to have be permissible in conversations in our society are true. I mean, I feel quite strongly a sitting president challenging the validity of an ongoing election is nothing if not objectively newsworthy,

right? A conversation about that. No question. And by the way, can be legitimate. Of course. And election denialism was, of course, getting coverage at lots of other news outlets across the country at the time. Of course. And so, you're going to see, of course, the Fox briefing is going to lean into this, right? It's going to emphasize there were some folks internally who were hopeful that these claims about Dominion were true and others who were skeptical of it, and that it was a mixed bag, and that they were just asking questions and answering questions. Clearly they weren't. The briefing here is pretty powerful in this regard. There's a line here in Dominion's motion for summary judgment that says, you know, we've been at this for something like

eight months of discovery. We've deposed everybody top to bottom from the head of the corporate parent to the producers on the show. And no person that we've deposed under oath has said that they believed anything that was being said about Dominion. And that struck me as a pretty powerful takeaway from that filing. If that's the case. Well, I think the larger point is not even so much that they were saying, oh, we knew they were lying. We put them on the air anyway. It really is Rupert Murdoch's email to the the head of Fox News saying, do whatever you can to help Trump. Let's focus on Georgia. Let's make sure that we help their party. What it speaks to is all these other actions are under the rubric of something larger,

which is we are a political propaganda arm. And I guess, ultimately, legally, them knowing they're lying and you can do defamation. But is there a larger point to truth in advertising? Is this something as simple as do they have to remove the news from their name? And then because, listen, in the old days, they argued, I think there was another defamation case against Tucker Carlson. And I think Fox argued their legal brief was, look, he's evil. He's an evil person. We don't like him. We feel that he's a terrible person. So don't take note. I think their argument was no reasonable person would believe what he says. And they argue it persuasively. Is this as simple as Fox just going like, hey, man, take the news, take the name

news out of our name. And everything we do is fine. Well, so two separate points on that. I mean, the first and key one is the New York Times versus Sullivan standard doesn't apply just to protect news organizations or journalists. It's a First Amendment standard that applies, I was going to say, to regular people like you and me, to regular people like me. And me. I'm not news. You speak and comment on matters of public concern for a living. And I rely on satire law. I rely on First Amendment, fair use, and satire, and all those different things. But I never suggest that we are a journalism outfit, or that we are news, or that we are fair and balanced. We are very clearly, we are what we are.

Yes. And there's an interesting dynamic that's in play here in all of the moving parts on the different defamation suits that are floating out there. So there have been arguments in one of the cases directly against Sidney Powell. So Powell and Giuliani and some individual Fox hosts are themselves the defendants in suits. So Smartmatic and Dominion have sued them directly in addition to this suit against Fox News. And at one point Sidney Powell's lawyers argued essentially that no reasonable person would have thought these to be real assertions of fact, that they were simply a sort of rhetorical hyperbole and not meant to be taken as factually true. I thought they would argue the opposite. I thought they would argue,

well, I thought they would argue the Costanza standard, which is it's not a lie if you believe it. And I would have thought that Sidney Powell would be arguing, oh, no, she's not defaming you. She's nuts. It certainly is a little tricky. We actually see some information about Sidney Powell's own sources in this filing. The Dominion case against Fox included within its discovery information about what Fox News knew were Sidney Powell's sources of information. Which was apparently a time traveler. Yes. Well, either a person who characterized themselves as a time traveler who was potentially also a ghost who said that they received messages from the wind and that they had experienced a partial internal decapitation that gave them special

powers. Sure. No, that's in the brief. That's in the brief. That's actually the kind of information that you sometimes see in these sorts of defamation suits trying to prove up actual malice. It's that it was so implausible that the sourcing was so poor that no reasonable journalistic outlet would have believed it. But of course, not acting as a reasonable journalistic outlet, it doesn't reach the standard. You can engage in sloppy journalism and not meet the actual malice standard. Rather, you have to get to a place where there's this clear and convincing evidence that you had knowing falsity. Do you think that this is a case of an organization, a propaganda arm of a political movement, knowingly exploiting? In some ways, they hate our freedoms,

and so they're going to exploit the cracks in a system that believes in the First Amendment. They're going to exploit that and leverage that to gain their own political power. Aren't they gaming a system designed to give journalists broad leeway in trying to expose truth by basically reverse engineering it to create falsehoods and then exploit those falsehoods, which appeal to the basis instincts of their audience. Keep that fear going, keep that divisiveness going. They're the ones who are culturally cleaving this nation. They are the ones exploiting those loopholes to continue to divide us in ways that are leading to an increase in violence and all kinds of other issues. How do you then attack it through that? I think in the coming weeks

and months, not just this defamation suit, but a series of others that are brought on the same premise, that a lie was told that harmed an individual reputation, but that also caused wider societal harm. These were major democracy harming lies. The tension that we're going to see you're going to see folks on the one hand expressing concern about the weaponization of defamation law, as we described. The risks that are involved in making it too easy to sue for defamation and allowing powerful folks to be able to hold out the possibility of crippling damages for a minor error and stifling debate. The weaponization of defamation law on the one hand. We're going to see that contrasted with the very real risks of the weaponization of

First Amendment protection. The concerns that might exist if we can, in the name of broad construction of free speech law, enable lies that harm not just individuals and organizations, but harm the public writ large. That kind of tension between those two spaces is really the sort of war thing that we have on deck coming forward. We haven't really had to tussle with it in significant ways in quite a long time, in part because we haven't had any defamation suits that have teed up issues of this caliber. We also haven't had any that have proceeded to this stage where we've had this kind of evidentiary record built. This kind of discovery. Yes. And the irony here is, this is now a question of finally the court system helping to sort out

and put into explicit terms the strategies that are employed by a propaganda unit. And what's so kind of ironic here is that Clarence Thomas, Neil Gorsuch, these are folks that are seeking to weaken Sullivan, that are seeking to broaden the ability for defamation. They are, once again, and I hate to bring up the patard, but there is a serious patard. They have a patard issue. And I wonder if the courts have proven themselves throughout this to be an incredibly resilient guardrail on these shenanigans, truly. And I think what it shows is when you look at an organization that seeks to weaponize the First Amendment, I'm sure they're going to seek to undercut the courts as well and weaponize the courts and

appoint people who won't hold to these kinds of standards and won't, you know, will rule in their favor, which we've already seen them try to do. I wonder if something like this, if Fox loses, they take this to the Supreme Court, I would assume. And I would imagine this puts Clarence Thomas and Neil Gorsuch and the others who seek to weaken defamation laws in a very strange position, which is, this is everything that I have said I'm trying to fight against, but it's my political movement. And I'm actually a tool in that propaganda machine. How do I deal with that? It's a truly complex moment for the New York Times versus Sullivan standard. And you're right that there's an exceptional tension here in what we think of

as, if we were going to try to label it, the conservative position on this question of free speech. Gorsuch and Thomas have both now chimed in separately and together in a series of cases where libel cases have come to the Supreme Court and the Supreme Court hasn't taken them. But these folks have, these justices have chimed in separately to say, we should have taken this case and we should have taken this case as a mechanism for unwinding the protections of Sullivan, scaling back and making it easier for folks who are public figures or public officials to do so. And interestingly, the position, at least Gorsuch, Justice Thomas's position on this is an originalist one. He says the founders would have allowed these sorts of suits and we should

interpret the Constitution the way that something happened in 1790. Yes, because they speak to him through time travel because he was a happy decapitation. And he and Sidney Powell talk to the founders all the time and they explain very, very clearly, you should take that suit and also give everyone an AR-50. That's what the founders would say explicitly. The originalist view is a little idiosyncratic. He's the only justice on the court who holds it. But Gorsuch has chimed in to say he agrees, but for different reasons. And interestingly, his reasons are the reasons that you and I have been discussing today. That is, he thinks that the standard might be enabling a system of disinformation,

the spread of disinformation in ways that are problematic. And in particular, he's concerned about the new media landscape, the ways in which, through social media, lies can sort of take flight and become viral. And there are no meaningful consequences for them doing so. And so in his mind, adjusting the defamation standard, the constitutional protections in that setting is the right sort of tool to ratchet. For all the reasons that I've described, that defamation suits have all sorts of limitations and only work when we have a lie that actually directly harms the reputation. I'm not sure that that's a good trade-off to make. The accountability for a news organization has always been that they would regulate

so that they could protect their reputation as honest brokers or truth tellers. The anomaly here for Fox is they argue a standard that they themselves would never uphold. There's an accountability in most news organizations. If they find that there is a prejudice or somebody has made a decision to air a falsehood purposefully or has tried to twist something purely for a person, generally there will be some sort of recrimination, some sort of penalty. When it comes to Fox, there is none. Because the truth is this helps them, as they say in the primary, maybe not in the general, but it helps them in the primary. It's rewarded. And they never hold their host to account. I can't tell you the shit they gave me when it was revealed that I met with

Obama twice over eight years. By the way, not revealed, it was in the visitor logs. And it wasn't to discuss how I could help the Obamas. It was him sort of saying to me like, I think you're making young people cynical. And it was his concern about that. Meanwhile, Sean Hannity and those people are literally strategizing with presidents and people on the phone. There is no accountability on that side. And that is what they rely on. They rely on working the refs and holding these other groups to a standard that they would never comply with. And by using that, it is a strategy to neuter what you consider to be opposition that could hurt your political movement. It's Orwellian. It is unbelievably antithetical to what we supposedly believe is a

free country. Yeah, the concern about the role of the courts in all of this and the power of the courts in all of this I think is a really interesting and complicated one. And particularly when we take into account what the social science data suggests to us about the difficulty of dislodging views that are deeply ingrained within a space, which is a prominent theme that you see in the filing in this case. The prominent theme here is that Fox got anxious because folks didn't want to receive the truth about this election denialism and were gravitating elsewhere to places that would continue to tell the lie about dominion. But it's the whole truth for everything they do. They don't want to receive the truth about Black people in this country. They

don't want to see the truth about gender care. They don't want to receive the truth about a variety of issues. There is a difference between viewpoints that don't align and weaponizing issues to create cultural fault lines. And that's what I'm suggesting is that their business model is weaponizing cultural fault lines. And how do we get to that larger point? And a piece of what might concern us about the sort of ingrained nature of these media models is that do we get to a place in which the outcome of defamation laws can't serve that remedial purpose that we describe? So one place in which I've been following this closely in the last six months or so is Alex Jones, who has also been involved in a prominent defamation suit involving

Sandy Hook parents suggesting that they were sort of paid actors who pretended that their children had been the victims of mass murder. And we have defamation damages running in the millions. And there is still some very strong suggestion that this moved the needle not at all in terms of the beliefs of the listening audience. But that should never be the standard. The standard can never be what we put out there will move the needle. And I'll go you one further. And this is Alex Jones is a far less pernicious influence on this country than Fox News by far. People know what that cat is. They know if it looks like a duck sounds like a duck walks like they know what that is. Now that doesn't mean he doesn't have influence. And that doesn't mean

that he didn't defame those parents because he did. And he caused them grave damage. But as a cultural pathogen, Fox News is far more powerful, far more devious, far more pernicious and has created far more damage than Alex Jones ever will. And at least Alex Jones gives you supplements to help offset the damage. I mean, that's the that's the beautiful part about what he does. Now Fox would give you supplements. But do you understand what I'm saying? They are there is no way Alex Jones is a wolf in wolf's clothing. Fox News is the opposite. Yes. But if the evidence that is brought forth in this filing, this most recent filing about Fox News is to be credited. And if it is the case that the gravitational pull of the audience

demand, right, that sort of symbiotic relationship between folks who crave information that supports that worldview and Fox is tailoring sort of tacking in that direction in order to continue to feed that, then this a similar problem exists, which is we could have we could have a judgment in this case. Let's imagine that actual malice is proven that a jury and a judge agree that there was knowing falsity, reckless disregard for the truth in this dynamic, and that the claims that were made are objectively not true. That is, that the election was not rigged and the the company did not design itself for Hugo Chavez. And the and there is no algorithm that can change a vote that was cast in one direction and siphon it off for another. They declare that to be

judicially determined truth. And they further declare that Fox News knew this, that the that the corporate parent or the key actors in the dynamic were aware of knowing falsity and moved forward to perpetuate a knowing lie. The question is, how will Fox News viewers come to know this information? Fox News itself is not going to be inclined to do a story about it to cover that information to sort of share this. This weekend, they've got a media critic, guy named Howard Kurtz. He's their media critic. He got on the air on Sunday and ran through the Don Lemon shit and all kinds of other stuff and didn't even bring it up. Didn't even mention it. Just just it's not happening because in that in the bubble that they've created that that can't

get in there. But isn't the point that it doesn't it doesn't matter. Look, Gawker was put out of business for far less than what is going on here. And we really don't have mechanisms to hold that to account. And I've got my problems with CNN and MSNBC and news media writ large, but there is nothing like this, man. This is a totally different animal. So the key mechanism maybe here is the sort of preventative deterrent value of staggering damages, which is something that we've not touched on, but that I think might be important. Dominion is seeking $1.6 billion with a B. Oh, so like 25% of Fox's cash on hand. It's nothing. It's nothing.

And Smartmatic is seeking $2.7 billion. And some of these will be adjudicated facts that will then also bleed over into suits against individual hosts and sort of dollars at hand. At some point, I mean, we do know that there there is a deterrent value that comes about from these sorts of large compensatory damage claims. You think that can change behavior to some extent? I think we have at least some evidence that it and you I should note that as a First Amendment scholar, I have nervousness about celebrating the deterrent value. I don't wish to celebrate the chilling effect on speech, but I don't have any problem with celebrating the adjudication of knowing lies and and the awarding of damages in those situations that sort of sends a message

about social norms and the breach of those social norms. And here we do have at least some evidence that that behavior is altered by this. So I mean, the very best example may be Lou Dobbs, who is the highest rated program on Fox business. And within something like 48 hours after the bringing of the Smartmatic suit in this case was, you know, was canceled, lost his show. The there is lots of evidence over at Newsmax where they were even less well resourced. Yeah, the head of Fox News said Lou Dobbs does a less nuanced show than they do in North Korea. That was a real gem from this filing. Yes. They know. And here's the here's the truth of it. If they change their behavior,

they do lose their audience because they've created if a crack dealer decides, you know what, we can't make crack anymore because now the police are coming and now we can only sell, you know, an herbal, you know, five hour energy drink, they're going to lose their audience because they're the ones who accustomed to their audience to this lie, to this crack. They've been selling crack to their audience for years and they're hooked and they draw in more people. And if they pull back from that, they understand someone will try and fill that void. So they actually can't change because if they do, they're done. Yeah, there are memos and emails in this motion for summary judgment that are described,

that essentially make the argument that you've just described. Producers to Tucker Carlson saying, all that our viewers want to hear tonight is this election denialism. That's right. Tucker Carlson himself texting other hosts within the space to say things like if we counter this, right, the reporter who was fact checking it, right, is damaging the brand. And that kind of material from discovery I think is going to be powerful. It has been powerful. It's had a powerful sort of aftershock, not just as to this case, but as to the wider dialogue that folks are having about the role of Fox News and the motivation of it in this space.

Absolutely. And imagine this, a news organization in America putting in a filing that truth will damage our brand. Truth. Fuck. Amazing. Professor, thank you. Thank you. We've been talking with Ron L. Anderson Jones. Absolutely fantastic information. Really appreciate you being with us. Thanks so much. Take care. Bye. All right. The law. I like the argument like, fuck these guys. These guys are assholes.

They're doing this on purpose. And she's like, in the case of the New York Times, Sullivan. Yeah, the whole time. When you said legalese, I was back here like, okay, well, ipso facto, ergo, habeas corpus. Hair too far. I felt like I could keep up because she's like, this is too easy to teach in class. Wasn't that, that was, I think my favorite moment. She's like, I couldn't give that as a problem because it's, this is such a slam dunk. I would never put this on an exam. I do wonder that, you know, when you talk about defamation, so it's, honestly, it's just going to be money. The truth is, when you're an organization that has a loyal audience,

you really can't be beat. Now, I could see somehow legally them saying, you can no longer have the word news in your title. Or you have to make it very little. Yes. How little would the logo have to be, J? The tiniest script. When I, I'll tell you a little romance, short romantic story. When I first moved to New York City. Yes, Robbie, please. With Casey Balsam, who's my wife now. When she moved here, we were just friends.

She is your wife. She is my wife, but we were just friends when we moved here. And then we slept together the first night. That's an aside. We don't need that detail. Was that based on the size of the apartment or? John, it really was. It really was. To celebrate our moving, we went and got a bottle of wine from a bodega. So we open up this bottle of wine and it is like a rancid, sweet grape juice. It's disgusting. I believe it's Manna Shevitz. They call it Manna Shevitz.

Basically. So I look at this bottle. I learned in New York City lesson. You can only buy wine at liquor stores in New York. Bodegas can't sell wine, but what they do is they sell a fake product. They can fool you with one. It's called wine product. It looks like wine. The bottle looks like wine. They make you think it's wine. And Fox News is news product. It looks like news. You think it's news, but it's not. It's a facade. But here's the difference. It would be the same if in that bottle of wine was heroin.

And that heroin addicted you and all you wanted was more. To the point where if you saw a different news channel on and in airport, it would make you mad. It would make you mad that this other network would be allowed to broadcast because they live in the upside down and upside down that was created to flatter their fears and prejudices. And this wine product that you speak of is now the largest semi-alcoholic brand of wine in the country. And it's killing all of our grandparents. I like the wine analogy because if you drink in a Fox News, you will say, oh, so I can't say it, but they can say it in songs. All right. I'm just repeating the lyrics.

This is, it's for me, it's, I feel like if, if Buzz Aldrin, if you just looked at his emails and it said like, yeah, we faked it. If you were one of those guys like 50 years, you've been, you've been going like, I'm telling you they weren't there. It's, it's a green screen. You've got to believe me. And then finally you got to look at the emails and you're like, we weren't there. You're right. I think the other thing that I noticed when Robbie described it as wrestling, it is such character work. It's such a strong like acting gig for them that the minute they pulled back the curtain at all, it's like, well, she's fucking crazy. I'm not going to say that. Oh my God. How am I going to get away with this? Oh, I can't, it's so funny and I guess

illuminating to see the amount of vitriol that they have for each other behind the scenes because everyone's trying to be the most famous person. Everyone wants to have the highest rated hour. Everyone wants to be closer to the king maker. It's so poisonous. I feel like we're in the steroid era of news, you know, where it's like, yeah, there's an asterisk, but it's fun to watch. You're saying they might not get into the hall of fame. I'm saying they might not get into the hall of fame. It is. It's interesting, you know, when they discovered the steroid era, it became less obvious that there was cheating in baseball. Like you didn't see any of the people. There were no more baseball players that looked like

Simpson's drawings of baseball players, like with giant heads and the little body like that change. But I don't think they'll back down in iota. I don't think because there's no drug test for lying. There's no, you know, here's the change that's going to be made at Fox News. Stop emailing and texting people. It's just going to run like the mafia. When you have something to say, you're going to go outside to the corner where the phone booth used to be, and you're going to whisper it, but they're not going to leave a paper trail. They're not going to leave the evidence that they left, that this is collusion and this is a strategy and this is cynical. That will be the only change because they will not change their goal or what they're trying to do.

I do think Brian Kilmeade is going to be the one who's like, I'm so happy I didn't put this in paper in an email. Kilmeade and Ducey are going to take that place down. I'm telling you, man, Ducey is the one who comes out smelling like a rose in all this, but they will double down. And Tucker is, you know, his whole persona now is this vitriolic character. I mean, I don't even know if it's a character. I mean, maybe he is just an honestly terrible person. It may be. He's so aggrieved and everything has gone right for him. Oh, he grew up rich. But it doesn't matter that he grew up rich. It's what he chooses to do with his power. Listen, here's what he is. He's Hunter Biden without a crack habit. It's the same shit.

That's why he called him to say, help my son get into Georgetown and do all that. I got a Tucker cross. I swear to fucking, if a date rape drug had a face, it would be his. He is that guy. He is the angriest looking boat shoe I've ever seen. He is more charcuterie bored than man. Yeah. All he is is a man looking for justifications for the evil that is in his heart. And his whole life is dedicated to that. I do think we are being a bit negative though, because once again, this is my favorite genre of high prestige TV. This is succession. This is white lotus. This is messy white people behind the scenes, billions of dollars at stake. This is gripping television. Horrible news. Great TV.

Can I say that my favorite revelation from all this is that Tucker Ingram, Hannity group text thread exists. That probably looks like a collection of the angriest Yelp reviews you've ever seen going back and forth. Robbie, I'm going to go one step further and say, I got to see the media tab on that group chat. Oh, I know what it is. It's Laura Ingram sharing some of the memorabilia she collects. Yeah. This is a luga. It's a gun that I found. It's a full Obergruppenführer uniform, in fact. And them showing vacation photos in Argentina.

The whole thing is, is disappointing. It'd be like finding out that the friends who weren't really friends, that Joey really didn't want to know how you do it. That's what's upsetting. Heartbreaking stuff. Guys, wow. What a day. What a life. Show's coming back soon. The Apple TV Plus show. I want to thank the professor. Boy, she knew what she was talking about. My God. Professor Ron L. Anderson Jones, Robbie, Jay. See you guys in the office. Bye. Bye, everybody. The Providence Stewart podcast is an Apple TV Plus podcast and a joint busboy production.