(Feb. 28) In Fox News’s defense against the well-publicized defamation lawsuits by voting machine companies, Fox needs to remind a jury that there’s a large distinction between what is unethical and what is illegal.

If Fox eventually needs to appeal an unfavorable jury decision, the network should freely acknowledge that many of its shows are opinion rather than news because libel law gives more protection to opinions.

Better yet, Fox and the machine companies could reach a settlement whereby Fox apologizes for bad judgment in broadcasting unfounded aspersions and perhaps pays some damages (far less than the companies are demanding) but acknowledges neither malice nor actual legal violations.

In sum, Fox probably needs to swallow some bitter pills. Still, the network has a stronger legal-constitutional case against the defamation case than most news coverage right now is admitting. And if it loses, the erosion of First Amendment press freedoms could be baleful for the republic.

To repeat: Even for those of us emphatically on the record blasting former President Donald Trump’s lies that the 2020 election was fraudulent and who have little sympathy for anyone who abetted those lies, Fox’s First Amendment claims should be respected.

If legal push comes to constitutional shove, Fox probably ought to win.

First, it would be ludicrous to deny that numerous personnel at Fox practiced unethical journalism in the wake of the 2020 election. They did so by effectively amplifying the false claims that the Dominion and Smartmatic companies helped or allowed the election to be rigged against Trump. There’s no need to rehash the evidence, which has been plastered all over the news for weeks. When a top network star urges that a reporter be fired because she dared conduct an entirely accurate fact check that happened to anger viewers, that’s unethical.

Bad ethics, though, does not necessarily equal libel or legally actionable defamation….. [The full column is here.]


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