What A Day - No Fox Given

Episode Date: April 17, 2023

The defamation lawsuit brought by the election technology company Dominion Voting Systems against Fox News is scheduled to start on Tuesday. Crooked news contributor Max Fisher tells us what’s at stake, and what we can expect over the next few weeks.And in headlines: a shooting in Alabama left at least four people dead and 28 others injured, French President Emmanuel Macron signed into law his controversial plan to raise the country’s retirement age, and lawmakers in Montana approved a statewide ban on TikTok.Show Notes:What A Day – YouTube – https://www.youtube.com/@whatadaypodcastCrooked Coffee is officially here. Our first blend, What A Morning, is available in medium and dark roasts. Wake up with your own bag at crooked.com/coffeeFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday

It's Monday, April 17th. I'm Trayvon Anderson. And I'm Josie Duffy Rice. And this is What A Day, where we will be the ones asking Bad Bunny the important questions from now on. Yes, but he has to come back from the desert because I'm not going to Coachella ever. Ever. My window has passed. And thank God. Amen to that. Okay. On today's show, French President Emmanuel Macron signed off on a deeply unpopular measure to raise the country's retirement age. Plus, America's next drag superstar has been crowned. Oh, yes. But first, a trial that could result in significant ramifications for Fox News was scheduled to start this morning in Delaware. As a reminder, Fox News is being sued for defamation by the election technology company Dominion Voting Systems. But right as we sat down to record the show Sunday evening, we got word that the trial will be pushed back by one day.

The judge hearing the case said opening statements will begin tomorrow, though he didn't explain why. We also want to note that the Wall Street Journal reported this weekend that Fox has tried to settle the case out of court at the last minute. Yeah, that would be smart of them. It's not looking very good. Now, this suit was filed back in 2021 and has to do with the, even for Fox, absurd lies that they were telling after the 2020 election. Is that right?

Yes, that is absolutely right. I'm sure we all remember how the network was, you know, pushing the lie that Biden, quote unquote, stole the 2020 election from Donald Trump. Well, Dominion is basically alleging that Fox hosts and executives not only knew they were lying about the election, but also that the lies damaged Dominion's business and reputation. They're seeking a massive $1.6 billion in damages and additional punitive damages. Now, the trial, which is projected to run for five or six weeks, is of particular interest because defamation cases are really hard to win in the U.S., largely due to the Supreme Court's 1964 ruling in New York Times versus Sullivan, which dictates that an entity can't have just lied, but they must also have known they were lying at the time and have done it with actual malice. So this could really become a big deal regarding the First Amendment and whether

the actions of Fox News are protected or not. Yeah, it's an interesting case in part because Clarence Thomas and some other people in the Supreme Court have expressed some willingness to overturn New York Times versus Sullivan and lessen the necessary standard for libel or for slander. And so that makes this even more interesting because, as we know, Clarence Thomas, big Fox News guy. This could cut against his argument that we should lessen that standard, right? Yeah. So to break it all down, our co-host Priyanka Arabindi and I recently sat down with Crooked News contributor Max Fisher.

We started by asking him to walk us through why Fox News is being sued in the first place. Fox News is being sued by a company called Dominion Voting Systems for a particular lie that Fox News told in the days some hosts promoted is that the 2020 election was stolen because voting machines that were made by Dominion voting systems, they said had switched votes from Joe Biden to Donald Trump. Of course, that is not true. They all knew that it was not true. And so Dominion is suing them for damage to their brand and to their business worth $1.6 billion. So a pretty big sum. That is a very lot of money. Now, we know that, you know, the folks over there at Fox News, they be lying because that's what they do.

But what exactly does Dominion need to do to actually prove, right, that Fox was in the wrong here? So it's not enough to show that the broadcasts were factually incorrect, which the judge in the case has already said very clearly they were not true. The United States sets a very high standard dating back to the Supreme Court case in the 60s for suing a news agency for defamation. And that standards, you have to prove what's called actual malice. You have to prove that the news agency either knew it was a lie and willfully told a lie when it made the broadcast that caused the harm to the injured party, in this case, Dominion Voting Systems, or that it acted in reckless disregard for evidence that it

had at the time showing that it was probably wrong. So basically you have to prove intention, which normally is really difficult, except in this case Dominion managed to get in discovery for the trial, which is the process where both sides reveal all their documents that are relevant to the case. All of these internal emails and text messages from Fox News where they don't quite come out and say, let's go out on the air and lie about Dominion voting systems, but they get close enough that Dominion thinks, and I think that they're not wrong, that they have a pretty good shot at winning a rare lawsuit against a news agency. What exactly has Fox said in defense of itself?

And why is the network already in trouble, you know, before the trial even starts? Fox has previewed its legal argument a little bit. They have suggested they're going to argue two things. The first is that they're going to say, no, no, we weren't ourselves making that lie. We were merely reporting on what the president and people in the president's orbit were saying. And it's pretty clear that they did, in fact,

go beyond that. And they had guests on specifically to push that lie and their hosts pushed it. So that is going to be tough for them, which is why they have this backup argument, which is to say, well, even if some people on the network went too far, our executives at Fox Corporation, which is the parent company, had nothing to do with that. So therefore, even if Fox News, the unit within Fox Corporation, could potentially be liable, the larger Fox Corporation is not. Ah, okay. So this case, while it may be fun for all of us to watch Fox getting dunked on, that is not the focus exactly. What are the broader implications of this case coming forward?

So it's really relevant, I think, that there's been kind of debate for a while over whether the legal standard for suing a news agency is too high. On the one hand, it's a really important part of the press protections that we, you know, love and cherish in the United States that give us a free press. But on the other hand, it's a question of how you measure that against the broader risks to society in this era of extreme partisan disinformation. Now, the lawsuit against Fox News isn't you're being sued because you abetted a coup to try to end our democracy. Ironically, the content of Fox News isn't you're being sued because you abetted a coup to try to end our democracy. Ironically, the content of the suit is actually just you harmed a corporation's financial bottom line.

But this particular case comes in context of a bunch of defamation cases that are related specifically to lies about the 2020 election, claiming that it was stolen for Joe Biden. And actually, Donald Trump won Smartmatic. Another voting machine company is bringing a bunch of similar suits. Dominion is bringing suits against some other news agencies like Newsmax and One America News. There are also some cases being brought against James O'Keefe, who is this conservative activist, and some brought by some government workers who are involved in vote counting and who were implicated or named in these made-up conspiracies. So what all of these could potentially do is at least

give the courts a chance to revisit this really stringent standard that we have. And they're not going to overturn it because they don't have that power. That would be something to have to go through the Supreme Court. But if they rule against a lot of these companies anyway, the idea is that might nudge the interpretation of the defamation standard in a little bit looser direction. But at the same time, if all of these cases fail, even though the evidence is so strong, especially in the Fox case, that they knew that they were lying, then it ends up cementing that standard at a time where that has real trade-offs. Let's take a quick step back. You mentioned the emails and text messages that came out showing that the network stars, that Fox executives themselves knew that they would line up the side of the next, right? What would you say we kind of have learned from all of this

so far before the trial even starts? So, I mean, as you say, it's not in itself like a shocking revelation that Fox hosts would lie, but it is still incredibly striking to read these private text messages and emails where you see even some of the network's biggest and most pro-Trump hosts like Tucker Carlson saying before they start airing this conspiracy, when they're seeing it around, they're seeing it on Newsmax and One American News, and they're saying it's crazy. They literally use, I think, the word insane. They're saying it's driving me crazy or I can't believe that they're pushing this. There's no evidence for it.

And they're really kind of upset about it. But then the turn that happens, which is not shocking, but it is shocking to see confirmation of it, is that Fox News starts losing audience. The executives start getting really concerned about our viewers are fleeing because they don't like the story we're telling them. And the story we're telling them that they don't like is that Donald Trump lost the election. You see them explicitly saying, we are losing viewers because we are telling them the truth. So we should reconsider that. That message gets passed on down to the hosts. And then what do you know, all of the hosts are starting to put onto their shows, the very things that a few days earlier, they were saying privately to one another that they knew were false. Totally like to be a fly on the wall

on those few days, like where, where the opinion shifted or where they decided that their content is changing in this way. How fascinating and crazy. But what should we all, as we watch this unfold, expect over the next couple of weeks? Like who could take the stand? What should we expect as we watch this? So it looks like we are going to get probably most of Fox's biggest hosts, biggest names and biggest executives are going to take the stand. Something that's going to be really interesting to watch is whether Fox tries to throw one or two hosts in particular under the bus. If they do that, it will be Lou Dobbs and Maria Bartiromo are going to be the people who they signal out. Lou Dobbs got fired, I think, a day after Smartmatic filed its multi-billion dollar lawsuit for similar election lies. A former assistant to Maria Bartiromo is actually herself now suing Fox News

because she said that she was being coerced to lie in her deposition for this trial in a way that would implicate her boss, Maria Bartiromo, and that would exonerate the executives by saying, oh, it was just this hoax acting out on her own. So I think it would be very interesting to see how they try to kind of like spin and position that. And you alluded to this earlier, that Fox has already like ticked off the judge a little bit

because they were supposed to hand off all of these internal documents for discovery way before the trial started so that each side can prepare. And they, like a few days ago, handed over way late a set of internal emails and video recordings, which makes it very hard for Dominion's lawyers to prepare for it. And the judge kind of yelled at them and said, you can't do that. And he threatened to maybe open a kind of investigation. And it's not clear that anything will come of that. But it is definitely of a character with Fox's broadcasts, I would say, to see that they're pursuing a similar approach in their legal strategy. Fascinating. And fascinating to even contemplate how they will deal with that

on the air at their network every night. Yeah, I think it's probably not going to make it onto Fox News. Right. They're not covering it. I don't think it's getting wall-to-wall onto Fox News. Right, they're not covering it. I don't think it's getting wall-to-wall coverage, no. Right-wing media generally has kind of ignored it. It's not shocking, but it does not appear to have exactly sent shockwaves through the right-wing audience to now have this physical evidence that their hosts are lying to them. I mean, it's really striking that the viewers were really, really mad when Fox was telling them the truth about the election. And then when Fox was lying, even when the audience now knows that Fox was lying to them, they're OK with that.

They're good with that. That was Crooked News contributor Max Fisher. I'm sure we'll have plenty of updates in this trial to share over the next few weeks. But in the meantime, that is the latest for now. We're going to pay some bills and be back after some ads. Let's wrap up with some headlines. Headlines. town of about 3,000 people northeast of Montgomery. A high school senior who was celebrating his sister's 16th birthday was among the victims who were killed.

In a statement responding to the violence, President Biden said, quote, What has our nation come to when children cannot attend a birthday party without fear, when parents have to worry every time their kids walk out the door to school, to the movie theater, or to the park. Guns are the leading killer of children in America, and the numbers are rising, not declining. This is outrageous and unacceptable. At the time of our recording Sunday night, police have not released any details about a suspect or motive. You just heard the sound of an explosive device that was thrown at Japanese Prime Minister Fumio Kishida.

It happened Saturday as he was set to deliver a campaign speech in the western port city of Wakayama. Kishida was unhurt, though a responding police officer suffered minor injuries, and a 24-year-old man was quickly arrested at the scene. Authorities have not yet released a motive, though the attack comes less than a year after former Prime Minister Shinzo Abe was assassinated. Abe was also on a campaign tour when he was gunned down last July by a man armed with a homemade firearm. Saturday's attack also happened a day before the G7's top diplomats, including U.S. Secretary of State Antony Blinken, arrived in Japan for talks. Kishida has vowed to beef up security ahead of the G7 leaders summit in Hiroshima next month. French President Emmanuel Macron has signed into law a controversial bill

that will raise the country's retirement age from 62 to 64. The new law went into effect Saturday, a day after France's nine-member constitutional council approved the change, sparking demonstrations against the plan nationwide. As we've talked about before here on the change, sparking demonstrations against the plan nationwide. As we've talked about before here on the show, the policy was met with fierce resistance over the past few months as people took to the streets to condemn the government's plan. France's labor unions have vowed to continue protesting until the measure is withdrawn and have also called for a quote-unquote tidal wave of demonstrations come May 1st, which is International Workers' Day.

Macron's government says the change is necessary in keeping France's pension system intact, but opponents have called for other solutions like raising taxes on the rich or on employers. The new law, which gradually increases the minimum retirement age until it reaches 64 in 2030, will be carried out starting this September. Lawmakers in Montana have approved a statewide ban on TikTok. On Friday, Montana's House of Representatives approved the bill on a 54-43 vote. The measure would prohibit the social media app on all personal devices. It would make it illegal to offer TikTok to App Store customers within Montana,

though users of the app itself would not be penalized. The legislation is now headed to Republican Governor Greg Gianforte, who has not indicated whether he will sign it. However, he did approve a measure last year that banned the app on all state government devices. If enacted, the measure would make Montana the first state in the U.S. to completely ban the app on all personal devices. It would go into effect January of next year.

Meanwhile, TikTok and tech industry groups have hinted that they may challenge the law in court. I don't understand how this works. I don't think they know how it works either. Okay. Because I'm like, if I'm in Montana and I already have it on my phone, what happens? And turning now to some historic gay news. The winner of RuPaul's Drag Race, America's next drag superstar, is Sasha Colby. The music is amazing. That was, of course, a clip of the legendary drag performer Sasha Colby being crowned the winner of RuPaul's Drag Race Season 15. A well-renowned figure in the drag community for two decades and a former Miss Continental,

Colby slayed the competition this season. She's the first native Hawaiian queen to compete in the reality competition series, let alone win the whole damn thing. And she's also the first contestant to enter the workroom as an openly trans woman on a non-All-Stars season. Take a listen to what she had to say when she accepted her crown. This goes to every trans person, past, present, and future, because we are not going anywhere. Period.

Tickets for the Sasha Colby meet and greet might be a little more expensive now that she's getting her dues. But we're so happy to see her enter the Drag Race Hall of Fame as the goddess that she is. Josie, why didn't you watch? I know. I'm sorry. Okay, but I didn't watch because I can't take competition shows because I can't watch people lose. Okay, but you can watch the people win.

You can just disregard the people losing. They didn't lose. They just didn't win. I got to experience that just now on WOD. I got to hear the win without the loss. This is exactly how I want it all the time. Gotta leave the room, you know? I love that for you.

It's great. I'm gonna watch though. I'm gonna watch late, but I'm gonna watch. Now that I know what happens, you know? Makes it all easier, right? Way easier. Love spoilers. I'm very pro-spoiler. And those are the headlines. That is all for today. If you like the show, make sure you subscribe, leave a review,

get in line for the Sasha Colby meet and greet, and tell your friends to listen. And if you're into reading and not just every incriminating text message Tucker Carlson has ever sent, like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com slash subscribe. I'm Josie Duffy Rice. I'm Traevel Anderson. And stop messing with us, Fox News.

You're either going to settle it or you're not. Stop playing games, okay? Made for TV. They love the drama. What a Day is a production of Cricket Media. It's recorded and mixed by Bill Lance. Our producers are Itsy Quintanilla and Raven Yamamoto. Jossie Kaufman is our head writer, and our executive producer is Lita Martinez.

Our theme music is by Colin Gilliard and Kashaka.