If you missed a similar “clarification” that aired on Fox News and Fox Business this weekend, go watch it now. The point to grasp in both that case and this one involving Newsmax is that news networks would never capitulate to a demand for a retraction unless they feared they were horribly exposed to defamation liability. American defamation law strongly favors media outlets, especially when reporting on “public figures.” I’m sure Fox’s legal department gets letters threatening court action all the time from aggrieved subjects of their coverage and those letters go straight in the trash, as there’s no risk of Fox losing in court. They won’t even run a “clarification” in those cases since having to “clarify” operates as an admission that your reporting wasn’t very “clear” in the first place. That’s a bad look.
Multiply that logic by a thousand when it comes to a partisan news network covering a subject in which its fans are intensely emotionally invested, like Trump’s claims that the election was stolen. For the first time in Fox’s history, it’s facing semi-credible ratings pressure from the right thanks to Newsmax’s willingness to feed MAGA fantasies about voter fraud. Newsmax has every financial incentive to continue to press that advantage by doubling and tripling down on those fantasies…
…or at least it did, until its lawyers apparently came to the conclusion that the smear campaign against Dominion Voting Systems and Smartmatic might end up costing the company more than it’s earned from it. The clip below is essentially Newsmax admitting it has no confidence that it would win a defamation suit if Dominion or Smartmatic drags it into court, even with all of the advantages that First Amendment jurisprudence builds into the process for defendants. You need to f*** up really badly to get yourself to a point where you’re at the mercy of a potential plaintiff in a slander suit but Newsmax — and Fox — may have done it.
In an era of brazen political lies, [Smartmatic CEO Antonio] Mugica has emerged as an unlikely figure with the power to put the genie back in the bottle. Last week, his lawyer sent scathing letters to the Fox News Channel, Newsmax and OAN demanding that they immediately, forcefully clear his company’s name — and that they retain documents for a planned defamation lawsuit. He has, legal experts say, an unusually strong case. And his new lawyer is J. Erik Connolly, who not coincidentally won the largest settlement in the history of American media defamation in 2017, at least $177 million, for a beef producer whose “lean finely textured beef” was described by ABC News as “pink slime.”
Now, Mr. Connolly’s target is a kind of red slime, the stream of preposterous lies coming from the White House and Republican officials around the country…
The letters written by lawyers for Smartmatic and Dominion are “extremely powerful,” said Floyd Abrams, one of the country’s most prominent First Amendment lawyers, in an email to The New York Times. “The repeated accusations against both companies are plainly defamatory and surely have done enormous reputational and financial harm to both.”
Remember that truth is an absolute defense to libel. If Newsmax had anything concrete to substantiate the ludicrous accusations being thrown at Dominion and Smartmatic in righty media it would tell the two companies to buzz off. The fact that they’re not doing that is a tantamount to admitting that they’ve got nothing. More than that, Newsmax surely knew that running the clip below would humiliate the network and leave its fans incensed — and it still concluded that that was the wiser option under the circumstances given how much legal jeopardy it’s in. (In fact, just to be extra apologetic, Newsmax CEO Chris Ruddy says this clip will air on *all* of the network’s shows.) Ed mentioned to me in a text that this clip actually seems more thorough than the one Fox ran over the weekend, which is true and for which there may be good reason. News Corp is mega-rich and can afford to pay out a gigantic defamation judgment if it has to, but I’m not sure Newsmax can. A successful suit by Dominion or Smartmatic might be an existential threat to them.
Whether this clip or the one Fox ran is enough to eliminate each company’s legal jeopardy is a question for legal eagles. The clips clearly aren’t designed to appease Smartmatic or Dominion; they’d be much more effusive about their regrets if they were, and they’d run on the air much more often than just a few times. These meager efforts can’t possibly undo the damage done to the companies’ reputations. But they’re not supposed to. The intended audience for them is a potential jury, not the CEOs of Smartmatic and Dominion. Fox and Newsmax want to be able to go into court with some evidence in hand that they weren’t completely reckless in allowing wild accusations to air on their network. They corrected the record. They “clarified.” Good enough for a jury, maybe?
Even so, I suspect Smartmatic or Dominion or both will follow through and sue. In fact, Lin Wood — who’s representing Sidney Powell as Smartmatic comes after her — is all but daring them to.
Say what you will about the relative merits of the claims.
This is a baller response. pic.twitter.com/DFk7rUU3co
— Marc J. Randazza (@marcorandazza) December 20, 2020
I’m *very* excited to see how that court battle goes. As for the rest of the companies’ legal targets, they’d have my sympathy if the accusations about voter fraud had derived from some good-faith mistake of fact. Even the pros make honest errors; the important thing is that they try to get it right. There’s nothing good-faith about the smear campaign against Dominion and Smartmatic. The two were targets of opportunity: MAGA fans needed a theory for how systemic, nationwide voter fraud altering the outcome of the election could have happened and they naturally zeroed in on voting machines, where thousands or millions of votes could conceivably be switched surreptitiously. Populist media ran with it and amplified it in hopes of cashing in on the hysteria. Now here we are.
Which reminds me. All of the MAGA types (starting with the MAGA-in-chief) who’ve been angling to punish Big Tech by getting rid of Section 230 should be glad it’s there to protect Facebook and Twitter today. If it weren’t, Smartmatic and Dominion would be coming after those companies for letting their platforms be used to flood America with oceans of defamatory “red slime” about the companies’ supposed role in rigging the vote against Trump. If you want a serious argument in support of repealing Section 230, this episode is it. Make Twitter and Facebook liable for the garbage pushed by their worst users and they’ll start taking out the trash.
Exit quotation from Jonah Goldberg: “The law’s righteous power to turn heroic conspiracy theorists into cucks cannot be denied.”
Newsmax just aired this note to “clarify” its coverage of Smartmatic and Dominion. pic.twitter.com/I5XZ7CQpAk
— John Whitehouse (@existentialfish) December 21, 2020
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