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Speaker 1: Welcome to Crash Course, a podcast about business, political, and

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Speaker 1: social disruption and what we can learn from it. I'm

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Speaker 1: Tim O'Brien. Today's Crash Course. Fox News Versus the Big Lie.

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Speaker 1: Fox News, at least the part represented by the network's

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Speaker 1: powerhouse evening talk shows, is often an unfettered disinformation machine.

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Speaker 1: It has propagated myths, far right talking points, and conspiracy

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Speaker 1: theories with unencumbered gusto until that is, it helps circulate

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Speaker 1: the big lie about electoral fraud. In the twenty twenty

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Speaker 1: presidential election, it placed two voting machine companies, Dominion Voting

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Speaker 1: Systems and Smartmatic, at the center of a scam that

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Speaker 1: wasn't a scam that invited both companies wrath, and they

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Speaker 1: have sued Fox Relibel. Dominion seeks one point six billion

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Speaker 1: in damages. Smart Mattic wants two point seven billion. That's

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Speaker 1: a lot of billions, even for a publicly traded company

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Speaker 1: controlled the deep pocketed Murdoch family. But Delaware judge recently

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Speaker 1: allowed Dominion's claim to proceed to trial. Opening arguments were

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Speaker 1: supposed to start this week but have been delayed. In

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Speaker 1: moving the case along, Judge Davis indicated that he believed

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Speaker 1: Dominion's claims had substantial merit, and Fox's defenses might be

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Speaker 1: built on sand joining crash course. Today, to discuss all

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Speaker 1: of this is David folken Flick, the media correspondent for

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Speaker 1: National Public Radio. David is also the author of Murdoch World,

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Speaker 1: The Last of the Old Media Empires. David, Welcome to

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Speaker 1: the show.

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Speaker 2: Thanks Tim. Great to join you.

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Speaker 1: David. I was tempted to say that the roots of

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Speaker 1: these lawsuits are in that moment in election Night in

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Speaker 1: twenty twenty, when Fox called Arizona for Biden and the

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Speaker 1: Trump camp went apoplectic, and the Murdoch family and their

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Speaker 1: minions at Fox worried that Trump fans everywhere might abandon

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Speaker 1: the network, the logic being then that the Murdocks wanted

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Speaker 1: to make it up to the Trump Pistas and then

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Speaker 1: went too far. But as I thought about that, it

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Speaker 1: made me think, Nah, you know, the roots of this

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Speaker 1: run even deeper than that, this collision between Fox and

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Speaker 1: facts and political agendas. Tell me, in your view, what

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Speaker 1: are the roots of this particular moment?

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Speaker 2: Well, you know, look, the proximate cause of what happened

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Speaker 2: was that projection of Arizona for Joe Biden on Election

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Speaker 2: Night by Fox News, making Fox boast, the network whose

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Speaker 2: audience least wanted to hear that, and the network that

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Speaker 2: did so first, and the only television network that did

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Speaker 2: so for days. But you're absolutely right. I was walking

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Speaker 2: this through with colleagues a couple of days ago on

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Speaker 2: this very question, and you can kind of scroll backwards

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Speaker 2: to the lives about Seth Rich and his death. You

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Speaker 2: can scroll backwards to the questions about Benghazi, the questions

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Speaker 2: about the legitimacy of Barack Obama, the elevating of Donald

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Speaker 2: Trump from reality show star and sometime in real estate

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Speaker 2: or reported real estate tycoon to a weekly pontificator on

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Speaker 2: matters of public record, which is what Fox and Friends did,

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Speaker 2: you know, starting around I think twenty eleven, sort of

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Speaker 2: elevating him as a counter voice to Obama. And it

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Speaker 2: really strikes me that Fox was jingoistic, and Fox was,

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Speaker 2: you know, particularly post nine to eleven, made its name,

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Speaker 2: became the leading ratings force in cable news as a

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Speaker 2: result of sort of the flag and patriotism and everything

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Speaker 2: that happened after nine to eleven and going to war,

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Speaker 2: and it went from there, but it really went off

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Speaker 2: the rails starting in the Obama years, whereas Bill Shine,

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Speaker 2: then the head of programming an opinion, said to me

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Speaker 2: in two thousand and eight, two thousand and nine, we

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Speaker 2: can be the voice of opposition and flourish there. We

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Speaker 2: don't have to be just championing a Republican And I

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Speaker 2: think you started to see it with the idea of

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Speaker 2: the need to delegitimize and deny Obama, the idea that

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Speaker 2: he had earned the presidency and deserved to be there,

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Speaker 2: whether or not you liked his policies, whether or not

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Speaker 2: you liked him personally. And I think the seminal moment

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Speaker 2: in some ways occurred the same week that Trump was

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Speaker 2: being coronated in a sense as the Republican nominee. You know,

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Speaker 2: Roger Ales, as the head of Fox, had battled back

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Speaker 2: and forth with Trump, but basically sued for peace with

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Speaker 2: him because he saw that his viewers were going for Trump.

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Speaker 1: Well let's pause on that for a minute, though. Yeah, sure,

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Speaker 1: because I actually in this idea of like where the

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Speaker 1: roots of this are, I would go even further back.

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Speaker 1: And I'm glad you invoked Roger Ales, because in the

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Speaker 1: person of Roger Ales, you have someone who's in the

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Speaker 1: Nixon White House when Woodward and Bernstein bring Nixon down,

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Speaker 1: and you have someone who has ingested this idea that

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Speaker 1: the media got in the way of the candidate. The

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Speaker 1: media got in the way of the president. The media

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Speaker 1: is a fire hose of liberal establishment thinking. And isn't

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Speaker 1: it correct in a way to say that ales and

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Speaker 1: bodies the creation of the network, both literally but also

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Speaker 1: sort of spiritually.

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Speaker 2: Oh yes, he's cast in his image. You know, it's

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Speaker 2: founded by Rupert Murdoch in ninety six, but it really

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Speaker 2: is molded to resemble Roger Ayles himself, a punitive political brawler,

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Speaker 2: a guy who knows exactly what he's doing with rhetoric

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Speaker 2: and imagery, and who sort of embraces the ugliness of

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Speaker 2: certain kinds of knife fights in politics and then transmits

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Speaker 2: it to news sort of news and quotes.

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Speaker 1: I was going to say that, right, news and quotes,

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Speaker 1: because really what it is is it's a gender warfare.

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Speaker 2: Well, it's a gender warfare. It's translating conservative talk radio,

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Speaker 2: which really blossomed the late eighties and early nineties, to

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Speaker 2: cable news. It's saying to CNN, you know what, we

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Speaker 2: can spend a heck of a lot less money reporting

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Speaker 2: and just slap people into argue, and they can chew

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Speaker 2: on what is sort of news ish or news adjacent

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Speaker 2: or seemingly about the news, or maybe just inventing things

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Speaker 2: that we're now calling news, and do it for a

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Speaker 2: lot less money, but ultimately make a lot more money

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Speaker 2: by doing that, because we're not pandering to what people

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Speaker 2: maybe need to know or deserve to know, but what

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Speaker 2: people want to hear about. And those are two very

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Speaker 2: different things. Are you equipping people as citizens are you

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Speaker 2: treating them as consumers entirely? And he saw them as

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Speaker 2: consumers of ideologically infused content, playing to cultural grievances, playing

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Speaker 2: to often prejudices, and fostering and fomenting a sense of

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Speaker 2: society built on often fear and distrust.

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Speaker 1: And he does that to great effect successfully. It becomes

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Speaker 1: the most popular television network in the United States, and

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Speaker 1: he has a cable and cable correct in any event.

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Speaker 1: Roger Ayles uses his instincts and this model to turn

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Speaker 1: Fox into an enormous influencer in the media landscape and

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Speaker 1: presides over that up until the point in which he's removed.

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Speaker 2: The ironic and startling thing about Ales is that it

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Speaker 2: turns out that when Rupert Murdoch takes over as CEO

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Speaker 2: of the network for a time, it doesn't become more journalistic,

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Speaker 2: even though Murdoch does have true journalistic blood flowing through

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Speaker 2: his veins. Along with everything else. It becomes less under control,

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Speaker 2: It becomes more driven by its stars. It becomes, if anything,

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Speaker 2: more irresponsible.

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Speaker 1: Because Murdoch liked that, or because he's a bad manager,

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Speaker 1: or both.

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Speaker 2: Murdoch is not as confrontational a leader. Murdoch is at

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Speaker 2: this point not a young man. TV is relatively new

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Speaker 2: to Murdoch. He feels more comfortable controlling print even though

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Speaker 2: he's had TV for years. Just controlling it personally was

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Speaker 2: not the way he led these operations. He didn't lead

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Speaker 2: Sky day to day, he didn't lead Fox day to day.

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Speaker 2: And he was enjoying TV. It was this fun new toy.

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Speaker 2: But he didn't have control of Tucker Carlson, he didn't

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Speaker 2: have control of Sean Hannity, and ultimately it was such

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Speaker 2: a big money maker that he didn't instinctively feel I

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Speaker 2: have better intuitive knowledge of what to do for TV

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Speaker 2: and keep making billions of dollars a year in pure profit.

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Speaker 1: In twenty sixteen. I don't think Rupert Merrock thought that

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Speaker 1: Donald Trump was going to elected president. Many people didn't,

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Speaker 1: including myself. But once Trump began burning through the primaries

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Speaker 1: and it became more real that he might wind up

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Speaker 1: in the White House, then Fox sort of threw in

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Speaker 1: with him. Eventually they all were singing with one voice.

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Speaker 2: Right, Yeah, I think what you saw was Murdoch was

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Speaker 2: privately deeply skeptical of Trump and contemptuous of him, knowing

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Speaker 2: him for decades in New York as a prime source

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Speaker 2: and subject of The New York Post's coverage, and he

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Speaker 2: was not impressed by Trump. But ultimately he ran and

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Speaker 2: sprinted to make Fox look as though it had been

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Speaker 2: leading the parade from throughout. Why did he do that? Well?

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Speaker 2: To do that before the election twenty sixteen was a

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Speaker 2: win win either. He would look to Trump's supporters as

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Speaker 2: though he had been a strong, adamant backer of Trump

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Speaker 2: at Fox News, and therefore Fox would get credit for that.

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Speaker 2: Even if Trump went down or if Trump won, he'd say, look,

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Speaker 2: he's a yuts. But for the first time, I have

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Speaker 2: a bat phone in the Oval office in the White

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Speaker 2: House in a way I've always wanted, in the way

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Speaker 2: that Murdoch has always had in Australia and in the

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Speaker 2: UK where he's operated. You know, he's usually the first

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Speaker 2: major visitor to come into ten Downing Street after a

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Speaker 2: new prime minister gets in. And in those two countries

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Speaker 2: he had that on both sides. Ledgers that is center

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Speaker 2: left to very conservative prime ministers would, as his aides

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Speaker 2: call it, kiss the ring and come and seek his

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Speaker 2: approval and benediction in running for office because he sometimes

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Speaker 2: threw his support to the members of the labor parties

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Speaker 2: in those two other countries. Here he has it really

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Speaker 2: exclusively in the Republican Party.

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Speaker 1: And even within the GOP he didn't enjoy the same

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Speaker 1: kind of access he had with Trump.

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Speaker 2: Right, that's right. And so with Trump you have a

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Speaker 2: time at which Murdoch bestows credibility on Trump, and that's

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Speaker 2: something Trump really doesn't arrive with much of and he

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Speaker 2: craves it, and he craves it as much as he

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Speaker 2: trashes the establishment and these institutions as elitist. BOYD does

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Speaker 2: he want it? BOYD? Does he respect it? So this

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Speaker 2: is the moment where he gives Trump credibility, and when

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Speaker 2: Trump wins, he's like, okay, here we go. And so

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Speaker 2: although he was critical of some of the things that

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Speaker 2: Trump did, like on immigration and other things. His hosts

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Speaker 2: went all in, but they went all in almost as

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Speaker 2: independent operators. He didn't have a unified message. These guys

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Speaker 2: all were finding different ways. And suddenly Trump is pulling

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Speaker 2: his kitchen cabinet essentially from Fox's airwaves. You know, they're

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Speaker 2: advising him, they're talking to him all the time. You

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Speaker 2: then have also the people that Trump is pulling off

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Speaker 2: the air, people like John Bolton who are Fox contributors

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Speaker 2: and naming them to major administration positions on the basis

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Speaker 2: of what he's seen on Fox.

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Speaker 1: And much to the consternation right of the traditional newsroom.

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Speaker 1: There there were straight shooters Chris Wallace, Shep Smith, Rehttbar,

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Speaker 1: you know, who felt that this evening lineup of commentators

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Speaker 1: was perverting the mission. But obviously the real strength in

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Speaker 1: the Fox operation, where the money was and where the

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Speaker 1: influence was, was with these commentators.

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Speaker 2: I mean, the way that I think about it is

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Speaker 2: that there are real journalists, although diminishing number of journalists

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Speaker 2: who work at Fox, but they are the rapping, They're

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Speaker 2: the bunting surrounding the point of Fox. The point of

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Speaker 2: Fox are the I mean, they're called opinion the hosts,

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Speaker 2: but in reality, these are polemicists. These are not people

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Speaker 2: who are offering carefully dissected views on things. You know.

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Speaker 2: By and large, these are people who are inveighing against

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Speaker 2: elements of societies, turning people they might think of as

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Speaker 2: political opponents or people they would criticize into enemies to

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Speaker 2: be condemned. The pros and the Hannities and the Mark

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Speaker 2: Levin's dobbs before he was forced out. Bartiromo, who came

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Speaker 2: from CNBC as a financial news anchor and was sort

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Speaker 2: of a cheerleader for Wall Street but did find it that,

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Speaker 2: you know, was turned into this frothing figure talking about

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Speaker 2: people betraying the nation in these somewhat apocalyptic terms. And

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Speaker 2: people within Fox who are paid to try to push

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Speaker 2: back on critical coverage will say, we understand, you just

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Speaker 2: don't like the flavor of Fox. I am in support

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Speaker 2: of journalists and opinion journalists coming from this at all

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Speaker 2: sides of the political spectrum. I think that there are

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Speaker 2: two elements of Fox that put it in a different place,

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Speaker 2: one of which is that their rhetoric is so antagonistic

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Speaker 2: that it demonizes the folks that they are supposedly covering

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Speaker 2: and holding accountable. That's not accountability, you know, that's targeting

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Speaker 2: for not prosecution. Yeah, it's persecutorial and prosecutorial. And the

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Speaker 2: second thing is just the almost complete alienation from fact,

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Speaker 2: where there's no notion that you have to admit facts

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Speaker 2: against interest among most of their so called opinion hosts.

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Speaker 2: They just ignore it.

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Speaker 1: And I want to pause on that for a minute,

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Speaker 1: because this is going to come back to haunt them,

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Speaker 1: this idea that they don't have to be responsible even

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Speaker 1: with commentary, and that the fact pattern isn't something they

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Speaker 1: have to be aligned with, and that is going to

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Speaker 1: come back to haunt them, which is the crux of

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Speaker 1: why we're here today on this particular topic. And so

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Speaker 1: there's some nice foreshadowing in that. But the other thing

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Speaker 1: is that environment that they've established. It's the perfect media

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Speaker 1: storm for Trump and Fox to inhabit together. It was

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Speaker 1: Taylor made for Donald Trump, it was Taylor made for

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Speaker 1: his message, and it also served Fox's needs. So there

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Speaker 1: was this kind of joint symbiotic unity here, wasn't there.

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Speaker 1: How would you describe Fox's coverage of Trump and his

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Speaker 1: presidency during his White House.

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Speaker 2: Years fawning, boosterish, supportive, often deflective of criticism, you know,

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Speaker 2: playing defense when necessary. And those figures who weren't a

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Speaker 2: validly pro Trump think of Tucker Carlson in particular, found

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Speaker 2: a happy place in being vish, anti anti Trump. So

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Speaker 2: anybody who might pose a check or serve to hold

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Speaker 2: Trump to account would themselves be subject to withering attacks

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Speaker 2: on places like Tucker Carlson tonight. And what we actually

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Speaker 2: learned was that the Trump years was an extraordinary, just

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Speaker 2: almost unprecedented age of lying from official sources, and in

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Speaker 2: some ways could be considered one of the most corrupt

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Speaker 2: administrations that we've seen in generations.

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Speaker 1: Riddled with financial conflicts of interest, a willingness to upend

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Speaker 1: the rule of law, a shredding of civic and civil norms.

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Speaker 2: Right you saw Trump the administration, the president trying to

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Speaker 2: both attack the media and attack major institutions of Washington,

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Speaker 2: but also delegitimize the professionalism of the federal workforce itself.

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Speaker 2: All of these things amount to things that are ripe

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Speaker 2: and required moments for the media and for other brands

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Speaker 2: inches of government to hold the administration accountable. And what

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Speaker 2: Fox was doing was playing offense to build support for

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Speaker 2: what the Trump administration was doing and play defense by

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Speaker 2: attacking those who would seek to hold him accountable, even

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Speaker 2: in journalistically meritorious ways.

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Speaker 1: David, this feels like a good place for us to

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Speaker 1: take a break. So let's do that and we'll be

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Speaker 1: right back. Okay, we're back with David Foknflick and PR's

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Speaker 1: media correspondent. And David, I want to play you a

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Speaker 1: SoundBite of Lou Dobbs on Fox just a few weeks

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Speaker 1: after the twenty twenty election.

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Speaker 3: I think many Americans have given no thought to electoral

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Speaker 3: fraud that would be perpetrated through electronic voting. That is,

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Speaker 3: these machines, these electronic voting companies, including Dominion, prominently Dominion

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Speaker 3: at least in the suspicions of a lot of Americans.

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Speaker 1: So, David, what was lewd Jobs putting in play there

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Speaker 1: in the weeks following the twenty twenty election when he

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Speaker 1: said that stuff?

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Speaker 2: So Dobbs started doing this just a few days after

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Speaker 2: the elections, and the seeds of it were actually sown

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Speaker 2: even before election day itself. But Dobbs was suggesting that

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Speaker 2: a major election tech company with operations in a bunch

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Speaker 2: of states across the Union had been flipping votes from

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Speaker 2: Donald Trump to Democratic challenger Joe Biden, or had been

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Speaker 2: just adding votes to the Biden tally, and that therefore

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Speaker 2: there was reason to believe in a bunch of these

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Speaker 2: swing states, some of which went to Biden with relatively

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Speaker 2: slim margins, that somehow in this election, then President Donald

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Speaker 2: Trump had been cheated of victory. These are not small

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Speaker 2: insinuations to make, and they are, as Dominion later pointed out,

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Speaker 2: central and core to what Dominion does, like there is

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Speaker 2: nothing more important to Dominion as a voting tech company

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Speaker 2: and to say they tallied the votes accurately, which can't

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Speaker 2: count subsequently proof they had.

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Speaker 1: Let's remind our listeners that what these companies do is

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Speaker 1: they have machines that tally votes, and their company's business

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Speaker 1: model and profitability is based on the idea that they

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Speaker 1: are impartial, that they are responsible, and that they don't

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Speaker 1: set out to corrupt elections, that they want to be

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Speaker 1: an honest, objective and detached arbiter of a result and

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Speaker 1: nothing more correct.

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Speaker 2: Yeah, that's right, and that they're secure. But the idea

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Speaker 2: of fraud being committed by Dominion is different than saying,

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Speaker 2: you know, is the software in every instance impermeable by

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Speaker 2: bad actors, of which there was also almost no evidence

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Speaker 2: of any meaningful incidents either. But Dobbs talked about fraud,

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Speaker 2: and he talked about dominion, and he was not alone

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Speaker 2: in doing so, but he was one of the champions

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Speaker 2: of this idea, and it took off like wildfire. You know,

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Speaker 2: it's hard to know what was the chicken and egg

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Speaker 2: precisely in such ways, but it's clear that Trump took

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Speaker 2: comfort and took inspiration from Dobbs, Maria Barbarromo, Janine Pero,

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Speaker 2: and others on Fox from promoting such garbage that was

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Speaker 2: being almost in real time, unpacked and disproven by election

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Speaker 2: officials of both parties, and were ultimately ruled as not

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Speaker 2: legitimate by judges appointed by presidents and governors of both parties,

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Speaker 2: including President Trump himself.

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Speaker 1: Dozens of judges, yes, scores.

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Speaker 2: Of cases across the country.

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Speaker 1: The line, obviously, of electoral fraud. Trump had invoked it

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Speaker 1: in the weeks before the twenty sixteen election, when I

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Speaker 1: think he thought he was going to lose. He said,

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Speaker 1: if I'm going to lose, obviously that means there's a fraud.

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Speaker 1: He began sowing the waters prior to twenty twenty in

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Speaker 1: the same way. So his task animals at Fox sort

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Speaker 1: of imbibed that line and repeated it on air.

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Speaker 2: Even by the way, tim even though the NAL lists

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Speaker 2: that Fox had warned one another before the election that

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Speaker 2: Trump was starting to say this stuff and that they

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Speaker 2: were finding no evidence to support it either before or

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Speaker 2: after the election.

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Speaker 1: Tread lightly, you know. The warning was from the newsroom

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Speaker 1: to the commentators. Trump can't be trusted. He said this

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Speaker 1: kind of stuff before. Be careful how deeply you ingest this.

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Speaker 1: And then you have Lou Dobbs basically laying out there

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Speaker 1: in the suspicions of a lot of Americans quote unquote,

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Speaker 1: these machines might be part of a fraud. When Lou

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Speaker 1: Dobbs says something like that, David, is it opinion or

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Speaker 1: is it a fact?

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Speaker 2: So look, I've covered media for twenty some years, and

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Speaker 2: I've covered several cases, none of them as intense as

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Speaker 2: this one. I mean, this is probably the most important

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Speaker 2: major media defamation case in a generation. It's that big

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Speaker 2: a deal. You know, Fox would say it was an opinion.

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Speaker 2: Dobbs couches this with conviction, you know, he does not

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Speaker 2: allow for a lot of ambiguity, a lot of ambivalence

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Speaker 2: in what he presents. And so there is a category

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Speaker 2: of comments as judges adjudicate sort of how to frame

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Speaker 2: a case for a jury's consideration. You have a lot

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Speaker 2: of running room on the First Amendment generally in reporting,

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Speaker 2: and you even have running room gets some things wrong

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Speaker 2: in good faith. You have more running room if something

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Speaker 2: as clearly opinion. But this is kind of mixed opinion,

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Speaker 2: where it's mixing a belief with an assertion of fact

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Speaker 2: that is perhaps founded in a belief, but it is

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Speaker 2: presented to the public as though it is true, and

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Speaker 2: therefore it doesn't get you off the hook to say, well,

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Speaker 2: it's just what I believe, so I can say it.

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Speaker 2: So this is mixed opinion. And so what Dobbs said

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Speaker 2: is something that is the kind of thing that gets

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Speaker 2: Fox in trouble.

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Speaker 1: And Fox, to protect itself from getting in trouble, invokes

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Speaker 1: the First Amendment. It says we have a right to

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Speaker 1: express opinions. This was merely opinion, and therefore dominion. You

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Speaker 1: can't sue us because we were doing what we were

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Speaker 1: in entire to do under the Constitution. What's happened, though,

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Speaker 1: is that Judge Davis has said, to invoke that protection

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Speaker 1: of the First Amendment, you have to be both responsible

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Speaker 1: and if you're going to invoke reporting, you have to

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Speaker 1: use neutral reportage. In other words, you want to present

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Speaker 1: allegations in a neutral fashion, and if you're not actually

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Speaker 1: neutral in how you present erroneous information, you can be

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Speaker 1: held liable. Isn't that essentially the way that the veil

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Speaker 1: of the First Amendment is getting pierced here?

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Speaker 2: I would put it slightly differently, and you may be right,

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Speaker 2: but my sense of it is. Fox has argued what

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Speaker 2: it is called neutral reportage, saying, look, the then sitting

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Speaker 2: president of the United States is saying that there was fraud

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Speaker 2: committed by dominion, the president and his inner circle and

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Speaker 2: top legal advisors like Rudy Truliani Sidney Powell for a

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Speaker 2: hot minute, right, these are inherently newsworthy people talking about

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Speaker 2: inherently newsworthy events, that is, the national elections of twenty

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Speaker 2: twenty and so through neutral reporting, if we pass this

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Speaker 2: along straight, as they claim to have done in some

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Speaker 2: of their interviews, we need that protection. The judge is saying, Look,

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Speaker 2: the First Amendment is already providing you the protection of

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Speaker 2: the actual malice standard which has to be met for

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Speaker 2: defamation to be found by a jury. And that just

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Speaker 2: so your listeners understand, actual malice doesn't mean you're malicious.

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Speaker 2: Actual malice means that either you knew something that you

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Speaker 2: said or published was false and also damaging defamatory, that

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Speaker 2: is damaging to your reputation in an important way, a

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Speaker 2: core way, or that you should have had that knowledge

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Speaker 2: or should have been aware for it, and you willfully

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Speaker 2: disregarded it. So, for example, Fox News is news side

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Speaker 2: saying repeatedly, guys, there's no truth to this, and then

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Speaker 2: putting on the air would seem to meet that standard.

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Speaker 1: And all of the other evidence that's now surfaced in

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Speaker 1: this court case is we have emails, we have texts

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Speaker 1: in which producers on air, talent, even Rupert Murdoch are

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Speaker 1: all saying we have doubts about this, This is unseemly.

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Speaker 1: Sidney Paul is unhinged.

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Speaker 2: That's the question that is being met there. Now Fox

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Speaker 2: has some other defenses that play in there, But this

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Speaker 2: is what the judge has said. Under the First Amendment

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Speaker 2: free speech, Yes, there has to be robust allowance. There

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Speaker 2: have to be greater allowances for Opinion. But the judge

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Speaker 2: has found, just in recent days, as part of ruling

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Speaker 2: on what are called summary judgment motions, where before the

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Speaker 2: jury part of the trial really starts, the two sides

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Speaker 2: get to say, look, there's so much evidence showing that

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Speaker 2: we're right, you don't even need a jury to find it.

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Speaker 2: And Fox gets to say, there's so little evidence finding

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Speaker 2: that these allegations against us stand up, you can just

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Speaker 2: dismiss the case altogether. The jury doesn't need to hear it.

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Speaker 2: What the judge ruled was, you know what, I'm going

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Speaker 2: to find that these statements were about Dominion. Even though

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Speaker 2: some of those statements could have been a question for

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Speaker 2: the jury, he's saying, you know what, I'm going to

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Speaker 2: find these statements are false that could have been something

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Speaker 2: the jury had to arbit He's saying, I'm going to

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Speaker 2: find these statements are defamatory. That is, not only are

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Speaker 2: they false, they are harmful to the reputation of Dominion

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Speaker 2: and its core business enterprise. So, you know, two thirds

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Speaker 2: of the work of the lawyers for Dominion has already

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Speaker 2: resulted in them getting pretty far down the line towards

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Speaker 2: this question of Fox News and even its parent company,

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Speaker 2: Fox Corp. Being found liable for defamation. A lot of

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Speaker 2: the work is already done. That to me, and I'm

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Speaker 2: not a First Amendment lawyer, I'm not a lawyer at all,

433
00:24:32,720 --> 00:24:36,600
Speaker 2: That to me was pretty surprising. So Fox is now

434
00:24:36,720 --> 00:24:40,000
Speaker 2: having to argue essentially an appeal to free speech and

435
00:24:40,000 --> 00:24:43,560
Speaker 2: First Amendment principles, but also make some more narrow definitions

436
00:24:43,600 --> 00:24:46,760
Speaker 2: and saying, look, you're trying to hold a corporation responsible

437
00:24:46,800 --> 00:24:50,360
Speaker 2: for what were, in your perception, the failure of individuals,

438
00:24:50,760 --> 00:24:53,960
Speaker 2: individual producers and stars, and they're say only the people

439
00:24:54,200 --> 00:24:58,880
Speaker 2: immediately involved with those shows on which those statements occurred

440
00:24:59,080 --> 00:25:01,480
Speaker 2: should be the ones that you think about is responsible

441
00:25:01,560 --> 00:25:04,000
Speaker 2: for this happening. It shouldn't be an institutional fault.

442
00:25:04,280 --> 00:25:07,679
Speaker 1: Which is why Fox let go of lou Dobbs, presumably

443
00:25:07,760 --> 00:25:11,960
Speaker 1: some time ago, was to insulate themselves from any fallout

444
00:25:12,440 --> 00:25:16,360
Speaker 1: surrounding his own actions and statements. That's the first indicator.

445
00:25:16,440 --> 00:25:19,840
Speaker 1: I think that a very interesting scramble is going on

446
00:25:20,040 --> 00:25:22,760
Speaker 1: at Fox, that this company that had sort of just

447
00:25:22,920 --> 00:25:29,560
Speaker 1: plowed through opponents and journalistic norms with reckless abandon suddenly

448
00:25:29,600 --> 00:25:32,760
Speaker 1: was starting to worry. And a lot of this I

449
00:25:32,800 --> 00:25:35,160
Speaker 1: think later came out in the evidence, and we've talked

450
00:25:35,160 --> 00:25:38,560
Speaker 1: about this, but despite ample doubts around the network about

451
00:25:38,640 --> 00:25:40,960
Speaker 1: the big lie that the election had been stolen, that

452
00:25:41,000 --> 00:25:43,760
Speaker 1: there was electoral fraud at the very highest level of

453
00:25:43,800 --> 00:25:46,720
Speaker 1: the company, people didn't believe that to be true, including

454
00:25:46,800 --> 00:25:50,560
Speaker 1: Rupert Murdoch himself. He later testified, yes, I mean we

455
00:25:50,640 --> 00:25:53,520
Speaker 1: thought everything was on the up and up. Yet they

456
00:25:53,560 --> 00:25:57,399
Speaker 1: allowed on air anchors to continue peddling the fraud theory.

457
00:25:58,160 --> 00:25:58,880
Speaker 1: Why is that?

458
00:25:59,640 --> 00:26:01,439
Speaker 2: I think it goes back to what you said at

459
00:26:01,440 --> 00:26:06,000
Speaker 2: the outset. The call for Arizona was so deeply violating

460
00:26:06,000 --> 00:26:09,120
Speaker 2: of what Suzanne Scott, the chief executive Fox News, called

461
00:26:09,160 --> 00:26:12,280
Speaker 2: Fox's brand. The brand promise to its viewers is we

462
00:26:12,359 --> 00:26:15,480
Speaker 2: are not going to upset you with information you don't

463
00:26:15,560 --> 00:26:20,320
Speaker 2: want to hear unless it is impossible to avoid, and

464
00:26:20,720 --> 00:26:23,040
Speaker 2: we are going to treat you as gently and gingerly

465
00:26:23,080 --> 00:26:26,520
Speaker 2: as possible, because we are going to be a safe

466
00:26:26,520 --> 00:26:29,920
Speaker 2: space for you. Fox was the first network to call it,

467
00:26:29,960 --> 00:26:32,920
Speaker 2: and boy was their news team and their decision desk

468
00:26:32,960 --> 00:26:36,040
Speaker 2: proud of it. They had a new way of calculating

469
00:26:36,080 --> 00:26:39,000
Speaker 2: and projecting votes after the twenty sixteen race. You know,

470
00:26:39,080 --> 00:26:41,399
Speaker 2: all of media had an egg on its face for

471
00:26:41,480 --> 00:26:44,239
Speaker 2: the way in which people thought Clinton had that sewed up.

472
00:26:44,240 --> 00:26:46,320
Speaker 2: And it all went to Trump and people couldn't quite

473
00:26:46,359 --> 00:26:49,280
Speaker 2: process what had occurred, right, And polling has been a

474
00:26:49,320 --> 00:26:51,879
Speaker 2: problem in recent years in recent cycles. Fox went to

475
00:26:51,880 --> 00:26:55,680
Speaker 2: a new one that it developed itself with the Associated Press,

476
00:26:55,720 --> 00:26:58,719
Speaker 2: and it did really well in twenty eighteen races, and

477
00:26:58,800 --> 00:27:01,159
Speaker 2: so Fox relied on it, and it's math showed it

478
00:27:01,280 --> 00:27:04,480
Speaker 2: that Arizona was tipping for Joe Biden. It called it well.

479
00:27:04,520 --> 00:27:06,920
Speaker 2: It was the first network to call it, and other

480
00:27:06,960 --> 00:27:10,439
Speaker 2: networks waited days to call it for Biden. So Trump

481
00:27:10,560 --> 00:27:14,000
Speaker 2: was outraged. Trump's family was outraged, inner circle was outraged,

482
00:27:14,040 --> 00:27:15,679
Speaker 2: but his fans were outraging. And you know what, that

483
00:27:15,760 --> 00:27:18,400
Speaker 2: correlation of the core Fox viewer and the core Trump

484
00:27:18,520 --> 00:27:21,600
Speaker 2: voter was near complete. It was almost know a one

485
00:27:21,640 --> 00:27:25,600
Speaker 2: to one relationship. Right. So Fox was deeply alienating the

486
00:27:25,640 --> 00:27:28,560
Speaker 2: people who made it such a runaway financial success, and

487
00:27:28,640 --> 00:27:32,760
Speaker 2: so they let them run and what you see as

488
00:27:32,800 --> 00:27:37,960
Speaker 2: a desperation, a headlong hurtling after those viewers. So they

489
00:27:37,960 --> 00:27:40,639
Speaker 2: don't go to Newsmax, they don't go to onn but

490
00:27:40,680 --> 00:27:43,000
Speaker 2: they also don't go to the Daily Wire. Or they

491
00:27:43,040 --> 00:27:45,200
Speaker 2: don't go to Blaze, or they don't go to Breitbart,

492
00:27:45,320 --> 00:27:49,119
Speaker 2: or just leave TV entirely because they are fearful. They

493
00:27:49,160 --> 00:27:51,840
Speaker 2: have alienated them so much. It is not an accident

494
00:27:51,880 --> 00:27:54,720
Speaker 2: that Fox News what the final network to call Joe

495
00:27:54,720 --> 00:27:57,880
Speaker 2: Biden the president elect and to project that he would

496
00:27:57,880 --> 00:28:01,439
Speaker 2: win the presidency. That was an entire intentional result. Finally,

497
00:28:01,480 --> 00:28:03,200
Speaker 2: Brett Bayer was the first one to use the term

498
00:28:03,200 --> 00:28:06,720
Speaker 2: president elect. Some opinion hosts at Fox refused to use

499
00:28:06,760 --> 00:28:07,760
Speaker 2: that term for Biden.

500
00:28:08,280 --> 00:28:10,560
Speaker 1: Another interesting thing I want to ask you about out

501
00:28:10,560 --> 00:28:15,040
Speaker 1: of the Murdoch testimony is in his testimony, he said

502
00:28:15,160 --> 00:28:19,119
Speaker 1: at least once, maybe twice, that Fox Corp. The parent

503
00:28:19,160 --> 00:28:22,080
Speaker 1: of Fox News, had nothing to do with any claims

504
00:28:22,080 --> 00:28:25,760
Speaker 1: of voting fraud that implicated dominion and smartmatic And he

505
00:28:25,840 --> 00:28:29,560
Speaker 1: seems to be suggesting that it was the evening hosts

506
00:28:29,920 --> 00:28:34,440
Speaker 1: who were pursuing this agenda, not Fox as a corporation.

507
00:28:35,320 --> 00:28:38,600
Speaker 1: What's his thinking there and making that distinction, David, Oh.

508
00:28:38,440 --> 00:28:43,200
Speaker 2: They're all dispensable. The Murdochs have always, perhaps understandably, written

509
00:28:43,240 --> 00:28:46,560
Speaker 2: the rules to protect themselves, and they seek to cauterize

510
00:28:46,960 --> 00:28:51,840
Speaker 2: any bleeding or wounds at as low a level as possible,

511
00:28:51,960 --> 00:28:54,720
Speaker 2: and at high as a level as is absolutely needed.

512
00:28:55,680 --> 00:28:58,480
Speaker 2: He wants to ensure that Fox Corp. Is not held

513
00:28:58,480 --> 00:29:02,480
Speaker 2: accountable in this instance, Rupert and his son Lachlan, the

514
00:29:02,600 --> 00:29:05,440
Speaker 2: co chairman of this venture, the co bosses of the

515
00:29:05,560 --> 00:29:10,080
Speaker 2: parent company, are in the weeds emailing about the nature

516
00:29:10,280 --> 00:29:13,520
Speaker 2: of the direction that coverage and the limits that will

517
00:29:13,560 --> 00:29:17,120
Speaker 2: be put on their opinion hosts. You had Lachlan Murdoch

518
00:29:17,200 --> 00:29:20,280
Speaker 2: talking about how smarmy and smug one of their news

519
00:29:20,320 --> 00:29:23,840
Speaker 2: anchors in the afternoon, Leland Vitter seemed in describing pro

520
00:29:23,920 --> 00:29:27,960
Speaker 2: Trump protesters. That is pretty in the weeds. I think

521
00:29:28,000 --> 00:29:30,680
Speaker 2: at one point Lachlan Murdoch was weighing in on chirons. Now,

522
00:29:30,680 --> 00:29:34,400
Speaker 2: this is consistent with how Rupert Murdoch dealt with tabloids

523
00:29:34,400 --> 00:29:38,360
Speaker 2: for decades. It shouldn't be ultimately surprising. But at the

524
00:29:38,400 --> 00:29:41,200
Speaker 2: same time, it's hard to do that over sustained period

525
00:29:41,200 --> 00:29:44,040
Speaker 2: at a time of what is clearly crisis, you know what,

526
00:29:44,040 --> 00:29:47,280
Speaker 2: what are the board members and das called an existential

527
00:29:47,320 --> 00:29:51,720
Speaker 2: crisis and moment for Fox and then not say that

528
00:29:51,960 --> 00:29:55,600
Speaker 2: the corporate leadership is implicated in any way in the

529
00:29:55,600 --> 00:29:58,320
Speaker 2: consequences of what arise right. So they are trying to

530
00:29:58,360 --> 00:30:01,920
Speaker 2: say we are holding fire corp apart. They're just trying

531
00:30:01,920 --> 00:30:03,880
Speaker 2: to hold it all at a distance.

532
00:30:04,840 --> 00:30:07,440
Speaker 1: It's time for breaking in, David. So we will return

533
00:30:07,480 --> 00:30:10,480
Speaker 1: to our conversation after we hear from one of our sponsors.

534
00:30:15,440 --> 00:30:19,960
Speaker 1: We're back with David Fokenflick, MPR's media correspondent. David, let's

535
00:30:19,960 --> 00:30:23,760
Speaker 1: revisit the standard for proving a libel claim actual malice.

536
00:30:23,960 --> 00:30:27,640
Speaker 1: Plaintiffs need to prove decisively that a defendant made a

537
00:30:27,680 --> 00:30:31,719
Speaker 1: false statement knowingly or with reckless disregard for the truth.

538
00:30:32,040 --> 00:30:34,280
Speaker 1: Do you think Dominion will have a hard time proving

539
00:30:34,320 --> 00:30:35,600
Speaker 1: actual malice in this case?

540
00:30:36,040 --> 00:30:39,000
Speaker 2: It's such a good question. There's a lawsuit that's about

541
00:30:39,040 --> 00:30:41,719
Speaker 2: to be addressed in the jury trial phase of this

542
00:30:42,240 --> 00:30:44,840
Speaker 2: and that features, as you point out, a high legal

543
00:30:44,880 --> 00:30:47,440
Speaker 2: bar for Dominion to meet the actual malice. Will they

544
00:30:47,480 --> 00:30:51,080
Speaker 2: be able to prove? This is different than saying, my god,

545
00:30:51,160 --> 00:30:54,720
Speaker 2: look at the ways in which this supposed news organization

546
00:30:54,880 --> 00:30:59,400
Speaker 2: functions as a propaganda outlet or as a polemical political

547
00:30:59,480 --> 00:31:02,040
Speaker 2: outlet at a time of crisis. I've talked to a

548
00:31:02,080 --> 00:31:06,440
Speaker 2: bunch of First Amendment lawyers and media lawyers and corporate litigators,

549
00:31:07,240 --> 00:31:09,560
Speaker 2: and by and large, they just say this is a

550
00:31:09,600 --> 00:31:15,680
Speaker 2: remarkable case because the evidence is so voluminous that people

551
00:31:15,760 --> 00:31:20,200
Speaker 2: in positions of authority within Fox had knowledge that the

552
00:31:20,240 --> 00:31:23,720
Speaker 2: claims that they were sharing with millions of viewers had

553
00:31:23,760 --> 00:31:28,240
Speaker 2: no foundation. In fact, one of the defenses that's been

554
00:31:28,280 --> 00:31:31,240
Speaker 2: offered by Fox's legal team, led by perhaps the nation's

555
00:31:31,280 --> 00:31:35,640
Speaker 2: most renowned corporate litigator, Dan Webb, the chairman of Winston

556
00:31:35,640 --> 00:31:39,719
Speaker 2: and Strawn in Chicago, is that these were allegations that

557
00:31:39,760 --> 00:31:45,000
Speaker 2: were being for many weeks litigated and adjudicated in courts

558
00:31:45,160 --> 00:31:50,080
Speaker 2: and in governmental processes and appeals in jurisdictions around the country,

559
00:31:50,320 --> 00:31:52,760
Speaker 2: and that it was reasonable for several weeks during the

560
00:31:52,760 --> 00:31:57,480
Speaker 2: time that was happening to report on it neutrally. This

561
00:31:57,600 --> 00:31:59,520
Speaker 2: judge has kind of put this aside. He said, we

562
00:31:59,600 --> 00:32:01,800
Speaker 2: have to be in the real world here, and this

563
00:32:02,000 --> 00:32:07,120
Speaker 2: was being disproven by Fox's own reporters and by all

564
00:32:07,160 --> 00:32:10,480
Speaker 2: these rulings and judgments and decisions and statements by all

565
00:32:10,520 --> 00:32:14,920
Speaker 2: these officials throughout the country. So although the judge did

566
00:32:14,960 --> 00:32:18,760
Speaker 2: not find, in ruling on the summary judgment motions that

567
00:32:18,760 --> 00:32:22,080
Speaker 2: that standard of actual mouice had been met, he pointed

568
00:32:22,120 --> 00:32:24,640
Speaker 2: to saying, look, I'm going to give instructions here to

569
00:32:24,680 --> 00:32:26,720
Speaker 2: a jury to be grounded in the real world. And

570
00:32:26,760 --> 00:32:29,120
Speaker 2: the real world was Fox's own people were debunking this,

571
00:32:29,680 --> 00:32:33,000
Speaker 2: and it was also being rejected by all kinds of jurisdictions.

572
00:32:33,440 --> 00:32:36,040
Speaker 2: And so the question is, effectively, how long do you

573
00:32:36,040 --> 00:32:39,000
Speaker 2: get to give that credence neutrallly much less how long

574
00:32:39,040 --> 00:32:42,200
Speaker 2: do you get to promote that as plausible. You never

575
00:32:42,240 --> 00:32:44,960
Speaker 2: know what a jury's going to do, but I would

576
00:32:45,000 --> 00:32:49,000
Speaker 2: say that Dominion has ac created an astonishing amount of

577
00:32:49,320 --> 00:32:52,520
Speaker 2: evidence to support its claim of actual malice, and that

578
00:32:52,600 --> 00:32:55,200
Speaker 2: you know, at the start of the discovery process, when

579
00:32:55,240 --> 00:32:57,400
Speaker 2: little things were trickling out, lawyers said, you know, I'd

580
00:32:57,400 --> 00:33:00,280
Speaker 2: probably slightly rather be in Dominion's shoes than Fox's right now.

581
00:33:00,360 --> 00:33:03,000
Speaker 2: But it's tough, and that actual malice bar is really tough.

582
00:33:03,280 --> 00:33:06,120
Speaker 2: As we get closer and closer to trial. It's a

583
00:33:06,240 --> 00:33:09,360
Speaker 2: very tough hand for Fox's legal team to play, and

584
00:33:09,400 --> 00:33:12,400
Speaker 2: I'm sure they'll play it as best they can. I

585
00:33:12,440 --> 00:33:16,560
Speaker 2: also am detecting an itchiness to settle from the Fox.

586
00:33:16,280 --> 00:33:20,479
Speaker 1: Side, because they're getting routinely embarrassed at a minimum, and

587
00:33:20,520 --> 00:33:22,960
Speaker 1: they're facing billions of dollars in liabilities.

588
00:33:23,160 --> 00:33:25,280
Speaker 2: You know, the way I think about this is somebody said,

589
00:33:25,320 --> 00:33:26,800
Speaker 2: you know this, so this is like an X ray

590
00:33:26,800 --> 00:33:28,160
Speaker 2: of Fox, and I'm like, no, no, no, this is

591
00:33:28,160 --> 00:33:30,720
Speaker 2: like an MRI machine or a CAT scan, a full

592
00:33:30,760 --> 00:33:33,720
Speaker 2: body scan. You are seeing not just the bone structure,

593
00:33:34,040 --> 00:33:38,320
Speaker 2: but you're seeing the muscles, the soft tissue, the internal organs,

594
00:33:38,560 --> 00:33:42,200
Speaker 2: and you're seeing how the synapse is fire and malfunction. Now, Fox,

595
00:33:42,240 --> 00:33:43,680
Speaker 2: I want to be clear, we should be fair to

596
00:33:43,720 --> 00:33:45,960
Speaker 2: Fox here. Fox says that this stuff is cherry picked.

597
00:33:46,480 --> 00:33:50,000
Speaker 2: Fox says that even when misstatements are made, as we've

598
00:33:50,040 --> 00:33:53,040
Speaker 2: talked about, the First Amendment requires and free speech principles

599
00:33:53,160 --> 00:33:57,400
Speaker 2: require robust running room. Otherwise, you know, you basically get

600
00:33:57,480 --> 00:34:01,800
Speaker 2: arms of government adjudicating fairly boundaries of what's accepted speech.

601
00:34:02,440 --> 00:34:04,720
Speaker 2: And they say, look, this is just Dominion looking for

602
00:34:04,760 --> 00:34:07,160
Speaker 2: a huge payoff that's far beyond the scope of its

603
00:34:07,200 --> 00:34:11,120
Speaker 2: current enterprise value. It's majority controlled by a hedge fund

604
00:34:11,360 --> 00:34:14,680
Speaker 2: that is seeking a great payout here, and you're having

605
00:34:14,760 --> 00:34:17,799
Speaker 2: out of context statements taken by people looking for a

606
00:34:17,800 --> 00:34:20,800
Speaker 2: big payout. And certainly that one point six billion dollars

607
00:34:20,840 --> 00:34:24,800
Speaker 2: that Dominion initially sued for is pretty gaudy figure, right,

608
00:34:24,920 --> 00:34:28,000
Speaker 2: It's a lot of money. It's meant to grab Fox's attention.

609
00:34:28,080 --> 00:34:30,160
Speaker 2: But Fox has proven over the years it'll settle. You know,

610
00:34:30,239 --> 00:34:32,360
Speaker 2: It's willing to suck up costs of a couple hundred

611
00:34:32,400 --> 00:34:35,160
Speaker 2: million to take care of things. This is the way

612
00:34:35,160 --> 00:34:37,799
Speaker 2: in which dominion is arguing anyway that it can get

613
00:34:37,800 --> 00:34:41,080
Speaker 2: Fox's attention and force changes in how Fox operates.

614
00:34:41,800 --> 00:34:43,840
Speaker 1: I think there's another factor here too, you know, is

615
00:34:43,840 --> 00:34:47,960
Speaker 1: that the courts themselves have an under withering assault from Trump,

616
00:34:48,520 --> 00:34:51,680
Speaker 1: and I could see some jurists in that system who

617
00:34:51,840 --> 00:34:55,839
Speaker 1: see Fox as an enabler of Trump, and not just

618
00:34:55,880 --> 00:34:59,279
Speaker 1: in a political context, but in an anti democratic context,

619
00:34:59,520 --> 00:35:03,439
Speaker 1: that he's a threat to democracy, would want to use

620
00:35:03,520 --> 00:35:10,320
Speaker 1: a possible heavy verdict with deep financial consequences to convince

621
00:35:10,400 --> 00:35:13,040
Speaker 1: no one to go this route. Again, that it isn't

622
00:35:13,120 --> 00:35:15,879
Speaker 1: just what's at stake in this trial itself, but it's

623
00:35:15,920 --> 00:35:20,400
Speaker 1: what surrounds it, the constitution democracy, the January sixth insurrection

624
00:35:20,960 --> 00:35:26,200
Speaker 1: that Fox so assiduously helped lay the groundwork for. Don't

625
00:35:26,239 --> 00:35:27,560
Speaker 1: you think that could be at work here too.

626
00:35:28,520 --> 00:35:30,960
Speaker 2: Well, let me just say, having observed this judge, the

627
00:35:31,040 --> 00:35:33,960
Speaker 2: judge has tried very hard to be very down the

628
00:35:34,000 --> 00:35:39,080
Speaker 2: middle and extremely judicious and even handed, giving Fox more time,

629
00:35:39,200 --> 00:35:42,480
Speaker 2: giving it more leeway when things weren't submitted in quite

630
00:35:42,520 --> 00:35:44,680
Speaker 2: the way he wanted, giving them time to redo it.

631
00:35:45,280 --> 00:35:47,120
Speaker 2: I think that there are two ways in which the

632
00:35:47,200 --> 00:35:50,120
Speaker 2: judge is taking an exception in how Fox is operated,

633
00:35:50,480 --> 00:35:53,080
Speaker 2: one of which is, as you suggest, the ways in

634
00:35:53,120 --> 00:35:58,480
Speaker 2: which assertions by Fox's legal teams about how Fox's stars

635
00:35:58,640 --> 00:36:01,800
Speaker 2: and executives operate. It seemed to diverge from the evidence

636
00:36:01,800 --> 00:36:05,200
Speaker 2: in front of his own eyes, and he just doesn't

637
00:36:05,760 --> 00:36:07,600
Speaker 2: have a lot of time for that. He seems very

638
00:36:08,040 --> 00:36:10,799
Speaker 2: grounded in the specific facts in front of him, And

639
00:36:10,880 --> 00:36:13,600
Speaker 2: I think he has felt that Fox's legal team has

640
00:36:13,600 --> 00:36:16,440
Speaker 2: not always operated in perfectly good faith. He would not

641
00:36:16,520 --> 00:36:19,000
Speaker 2: use those terms, and he has been very flattering of

642
00:36:19,040 --> 00:36:21,560
Speaker 2: both sides and complementary both sides in many ways. But

643
00:36:22,080 --> 00:36:24,560
Speaker 2: at one point he said to Fox's legal team, don't

644
00:36:24,560 --> 00:36:26,840
Speaker 2: make me look like an idiot here. Why did he

645
00:36:26,920 --> 00:36:29,520
Speaker 2: say that? Well, Fox had said, Look, there's no need

646
00:36:29,560 --> 00:36:32,279
Speaker 2: for Rupert Murdoch to come down here to testify. It's

647
00:36:32,320 --> 00:36:35,560
Speaker 2: the age of COVID. He's ninety two. He was deposed

648
00:36:35,600 --> 00:36:38,839
Speaker 2: for eight nine hours under oath, this is not appropriate.

649
00:36:39,160 --> 00:36:42,319
Speaker 2: And the judge says, look, I've just been reading in

650
00:36:42,400 --> 00:36:45,839
Speaker 2: all these outlets about how he's getting remarried and he's

651
00:36:45,840 --> 00:36:48,319
Speaker 2: looking forward to spending the second half of his life

652
00:36:48,760 --> 00:36:51,279
Speaker 2: with his new spouse, who he has since broken up

653
00:36:51,320 --> 00:36:53,759
Speaker 2: with before the wedding, and that he's looking forward to

654
00:36:53,760 --> 00:36:56,880
Speaker 2: splitting time with her between his four homes in Montana,

655
00:36:57,160 --> 00:37:00,400
Speaker 2: New York, Los Angeles, and London. He's like, given that

656
00:37:00,400 --> 00:37:02,000
Speaker 2: that's the case, I think he can take a train

657
00:37:02,120 --> 00:37:04,759
Speaker 2: ride down to Wilmington, Delaware from New York. And he

658
00:37:04,840 --> 00:37:08,440
Speaker 2: also the judge took exception when it was revealed in

659
00:37:08,560 --> 00:37:12,279
Speaker 2: passing by Dominion's attorneys that Fox's lawyers had objected to

660
00:37:12,640 --> 00:37:17,840
Speaker 2: every single piece of evidence that Dominion had sought to

661
00:37:17,960 --> 00:37:21,400
Speaker 2: place his exhibits on the record as part of this trial.

662
00:37:22,200 --> 00:37:24,040
Speaker 2: And the judge says, well, that can't be right, and

663
00:37:24,040 --> 00:37:27,160
Speaker 2: he turns to Dan Webb again, this incredibly distinguished lawyer,

664
00:37:27,200 --> 00:37:29,080
Speaker 2: and says is that true? And Webb seems taken aback

665
00:37:29,120 --> 00:37:30,880
Speaker 2: and he's like, Oh, I don't think that can be true,

666
00:37:31,239 --> 00:37:33,200
Speaker 2: and the judge sort of sits there in silence, and

667
00:37:33,239 --> 00:37:35,080
Speaker 2: he turns to his colleagues. He says, I'm just asking

668
00:37:35,080 --> 00:37:37,440
Speaker 2: colleagues who may know did we do Oh no, I'm

669
00:37:37,480 --> 00:37:39,640
Speaker 2: being told we did do that, you know. And they

670
00:37:39,640 --> 00:37:41,680
Speaker 2: had objected to every single piece of thing that they

671
00:37:41,680 --> 00:37:44,400
Speaker 2: had redacted, just an astonishing array of stuff. And the

672
00:37:44,440 --> 00:37:46,360
Speaker 2: judge said, you know, I asked you to be sparing.

673
00:37:47,520 --> 00:37:49,120
Speaker 2: This is not what I asked. This isn't the way

674
00:37:49,160 --> 00:37:52,120
Speaker 2: you should operate. And so the judge, it seems to me,

675
00:37:52,239 --> 00:37:54,880
Speaker 2: has taken exception in two ways about these things. He

676
00:37:54,920 --> 00:37:57,120
Speaker 2: hasn't used the raise good faith, but in the idea

677
00:37:57,160 --> 00:37:59,919
Speaker 2: of honest representation. And I think it's that the heart

678
00:38:00,320 --> 00:38:02,960
Speaker 2: of the accusations again Fox that we're seeing play out

679
00:38:03,000 --> 00:38:03,399
Speaker 2: right now.

680
00:38:04,239 --> 00:38:06,480
Speaker 1: So David, make a prediction for me, what will be

681
00:38:06,520 --> 00:38:11,040
Speaker 1: the consequences for Fox's media operation if the court finds

682
00:38:11,040 --> 00:38:13,719
Speaker 1: that it did indeed libel dominion.

683
00:38:14,320 --> 00:38:17,759
Speaker 2: Look, I would advise people to bet heavily on any

684
00:38:17,800 --> 00:38:20,840
Speaker 2: prediction I make in life not coming true, because you know,

685
00:38:20,880 --> 00:38:23,439
Speaker 2: I'm not a great prognosticator. Here. What I would think

686
00:38:23,600 --> 00:38:27,080
Speaker 2: is that Fox could be subject to some pretty significant

687
00:38:27,080 --> 00:38:30,320
Speaker 2: financial penalties if you have a jury return a verdict

688
00:38:30,440 --> 00:38:33,400
Speaker 2: against Fox. Here, there's no reason to believe that they

689
00:38:33,440 --> 00:38:36,720
Speaker 2: would think, having done that, that they would let Fox

690
00:38:36,760 --> 00:38:39,839
Speaker 2: off lightly financially. And I think that what you might

691
00:38:39,960 --> 00:38:43,160
Speaker 2: see is Fox suing for peace in effect. That is,

692
00:38:43,200 --> 00:38:45,560
Speaker 2: they would appeal the verdict and then try to settle,

693
00:38:45,920 --> 00:38:48,160
Speaker 2: because that might be a moment at which dominion would

694
00:38:48,160 --> 00:38:50,560
Speaker 2: be open to say, all right, let's guarantee some money

695
00:38:50,600 --> 00:38:52,839
Speaker 2: in hand, let's take a big thing here. And then

696
00:38:52,920 --> 00:38:55,400
Speaker 2: the question is, if there is that kind of settlement,

697
00:38:55,800 --> 00:38:59,719
Speaker 2: does Fox have to apologize? Does Fox have to acknowledge

698
00:38:59,719 --> 00:39:02,920
Speaker 2: to its own audiences, who, let's be clear, have received

699
00:39:03,000 --> 00:39:07,200
Speaker 2: almost no information about this entire suit on Fox itself

700
00:39:07,640 --> 00:39:10,279
Speaker 2: and has had drummed into it over the decades of

701
00:39:10,280 --> 00:39:13,879
Speaker 2: Fox's existence, not to believe anything they've read anywhere else

702
00:39:14,160 --> 00:39:17,360
Speaker 2: or heard anything where else about Fox. Would they have

703
00:39:17,400 --> 00:39:19,280
Speaker 2: to go on and say, you know what, we provided

704
00:39:19,320 --> 00:39:23,080
Speaker 2: information about dominion voting systems that was untrue. It was

705
00:39:23,120 --> 00:39:25,440
Speaker 2: not involved in fraud in any way. We had no

706
00:39:25,480 --> 00:39:27,400
Speaker 2: evidence on which to base that, and we shouldn't have

707
00:39:27,400 --> 00:39:30,480
Speaker 2: presented it to you. That would be, in some ways

708
00:39:30,600 --> 00:39:33,080
Speaker 2: the worst thing that could happen for the Murdox is

709
00:39:33,120 --> 00:39:36,640
Speaker 2: acknowledging to their audiences that they misled them.

710
00:39:36,719 --> 00:39:38,360
Speaker 1: So you would see that as a come up in

711
00:39:38,480 --> 00:39:40,520
Speaker 1: for the Fox News operation, that that would be a

712
00:39:40,560 --> 00:39:41,400
Speaker 1: meaningful moment.

713
00:39:41,719 --> 00:39:43,720
Speaker 2: I think it's what they will do everything to avoid.

714
00:39:43,960 --> 00:39:46,360
Speaker 2: I think they would rather pay, and I think Fox

715
00:39:46,480 --> 00:39:49,320
Speaker 2: is prepared to do that as the cost of doing business.

716
00:39:49,360 --> 00:39:51,239
Speaker 2: I'm sure they have insurance defraying a lot of that.

717
00:39:52,000 --> 00:39:55,200
Speaker 2: But the amazing thing is, to my mind, the damage

718
00:39:55,239 --> 00:39:57,960
Speaker 2: to Fox is almost all external to the Fox world

719
00:39:58,040 --> 00:40:00,680
Speaker 2: and the Fox bubble. Like the damage is, It's very

720
00:40:00,719 --> 00:40:03,640
Speaker 2: hard to me to see that the rest of Washington,

721
00:40:03,680 --> 00:40:07,160
Speaker 2: the rest of the media, the rest of major civil institutions,

722
00:40:07,160 --> 00:40:09,000
Speaker 2: turns to Fox and say, well, it's just a different

723
00:40:09,000 --> 00:40:09,960
Speaker 2: flavor of news.

724
00:40:10,280 --> 00:40:12,959
Speaker 1: And so is there also going to be long term

725
00:40:12,960 --> 00:40:16,400
Speaker 1: consequences for other media organizations? Is there going to be

726
00:40:16,440 --> 00:40:20,880
Speaker 1: any reinterpretations of libel law coming out of this anything

727
00:40:20,920 --> 00:40:23,839
Speaker 1: else in the future that you think this has legs.

728
00:40:23,520 --> 00:40:26,040
Speaker 2: Around, Well, I think you're going to see some of

729
00:40:26,040 --> 00:40:28,880
Speaker 2: these actors be a little bit more careful and the

730
00:40:28,920 --> 00:40:33,480
Speaker 2: polemicization may be just as intense, but the factual allegations

731
00:40:33,520 --> 00:40:36,120
Speaker 2: may be less specific, do you know what I mean?

732
00:40:36,280 --> 00:40:38,680
Speaker 2: Like it may just sort of shift how things are

733
00:40:38,719 --> 00:40:42,319
Speaker 2: done to be no less toxic, but less specific in

734
00:40:42,440 --> 00:40:45,040
Speaker 2: the allegations that are being made as a way of

735
00:40:45,080 --> 00:40:47,200
Speaker 2: sidestepping some of this. I also think the rest of

736
00:40:47,200 --> 00:40:49,200
Speaker 2: the press will have to take a wake up call

737
00:40:49,280 --> 00:40:52,520
Speaker 2: to make sure they bend over backwards and not simply

738
00:40:52,600 --> 00:40:55,520
Speaker 2: say we have to serve the viewers and listeners with

739
00:40:55,600 --> 00:40:58,880
Speaker 2: what they want to hear and see, but do justice

740
00:40:58,880 --> 00:41:01,080
Speaker 2: to the story. Right, and I were brought up tim

741
00:41:01,320 --> 00:41:03,680
Speaker 2: you have to be fair. But fair is not fair

742
00:41:03,680 --> 00:41:05,760
Speaker 2: and balanced in the Fox way of saying, we're telling

743
00:41:05,760 --> 00:41:08,239
Speaker 2: you something different than what you're hearing from other news organizations,

744
00:41:08,320 --> 00:41:10,239
Speaker 2: and so it's not even that we're balances that we're

745
00:41:10,280 --> 00:41:13,759
Speaker 2: balancing out the so called liberal media. Right, we thought,

746
00:41:13,800 --> 00:41:17,040
Speaker 2: you have to be fair to the facts, fair to

747
00:41:17,480 --> 00:41:20,359
Speaker 2: your sources, but also fair to the people you're reporting on,

748
00:41:21,200 --> 00:41:24,319
Speaker 2: fair to your audience so that they feel respected, but

749
00:41:24,440 --> 00:41:28,040
Speaker 2: also fair to the truth. And that's start of fairness.

750
00:41:28,120 --> 00:41:30,840
Speaker 2: There's no hint of that in the communications you're seeing

751
00:41:30,840 --> 00:41:31,640
Speaker 2: inside Fox.

752
00:41:32,000 --> 00:41:33,920
Speaker 1: So as you look at all this, what have you

753
00:41:34,040 --> 00:41:37,040
Speaker 1: learned from watching the collision between Fox and Dominion that

754
00:41:37,080 --> 00:41:42,080
Speaker 1: you didn't know before? David about libel or the contemporary

755
00:41:42,160 --> 00:41:45,560
Speaker 1: media landscape, what's fresh and new in your mind.

756
00:41:45,880 --> 00:41:49,360
Speaker 2: You know, each generation, each epic, has its own moments

757
00:41:49,800 --> 00:41:56,200
Speaker 2: in which things like how defamation is defined are either affirmed, reshaped,

758
00:41:56,360 --> 00:42:00,720
Speaker 2: or utterly rewritten. You know, you have three Supreme Court

759
00:42:00,800 --> 00:42:03,400
Speaker 2: justices who, in different ways and from different perspectives, have

760
00:42:03,880 --> 00:42:07,440
Speaker 2: registered themselves over the years as being open to reviewing

761
00:42:07,480 --> 00:42:11,480
Speaker 2: this question and this definition. And there's some concern, or

762
00:42:11,480 --> 00:42:14,080
Speaker 2: at least there was before all this evidence was developed

763
00:42:14,080 --> 00:42:16,640
Speaker 2: against Fox, but some concern that were Fox to be

764
00:42:16,680 --> 00:42:18,759
Speaker 2: found liable, it would be appealed to the Supreme Court,

765
00:42:18,800 --> 00:42:20,760
Speaker 2: and then the Supreme Court would use that as opportunity

766
00:42:20,840 --> 00:42:24,239
Speaker 2: to change how restrictive and how difficult that bar is

767
00:42:24,360 --> 00:42:28,479
Speaker 2: for people to meet. I think that Fox is raising

768
00:42:28,560 --> 00:42:30,920
Speaker 2: a question which I think is interesting one, which is

769
00:42:30,960 --> 00:42:32,920
Speaker 2: for all the people who are happy to see Fox

770
00:42:32,960 --> 00:42:35,320
Speaker 2: get a come up, and many of them in the media,

771
00:42:35,440 --> 00:42:37,600
Speaker 2: many of them liberals, and some of them just deeply

772
00:42:37,840 --> 00:42:41,760
Speaker 2: scornful and contemptuous of the things that have been revealed

773
00:42:41,760 --> 00:42:44,759
Speaker 2: about the fundamental nature of the way Fox operates. You know,

774
00:42:44,760 --> 00:42:47,080
Speaker 2: it's a careful what you wish for thing, because this

775
00:42:47,120 --> 00:42:49,520
Speaker 2: stuff could be turned against the New York Times or

776
00:42:49,680 --> 00:42:54,280
Speaker 2: NBC or the associated press too, depending on the circumstances

777
00:42:54,280 --> 00:42:57,000
Speaker 2: and the nature of the judges who are hearing such

778
00:42:57,040 --> 00:42:59,040
Speaker 2: cases right well.

779
00:42:58,880 --> 00:43:01,600
Speaker 1: And depending on the action of the media organization itself,

780
00:43:01,880 --> 00:43:05,000
Speaker 1: which is doing the right thing and observing the fact

781
00:43:05,040 --> 00:43:07,120
Speaker 1: patterns of protection against a libel suit.

782
00:43:07,320 --> 00:43:09,840
Speaker 2: That's right. You know, good faith effort to present the

783
00:43:10,160 --> 00:43:14,120
Speaker 2: news will protect you from a dominion like lawsuit. It

784
00:43:14,200 --> 00:43:16,720
Speaker 2: might not protect you from lawsuits being filed. I've been sued.

785
00:43:16,719 --> 00:43:20,080
Speaker 2: I'm sure you've been sued, like it happens. But it

786
00:43:20,120 --> 00:43:24,160
Speaker 2: can protect you against horrible adverse circumstances. But that said,

787
00:43:24,239 --> 00:43:27,200
Speaker 2: cases like this can erode that. It also is amazing

788
00:43:27,239 --> 00:43:29,719
Speaker 2: the extent to which so much of what happened at

789
00:43:29,760 --> 00:43:33,880
Speaker 2: Fox was so focused on the idea of their identity,

790
00:43:33,920 --> 00:43:36,640
Speaker 2: their sense of themselves, what they call repeatedly their brand,

791
00:43:37,400 --> 00:43:39,600
Speaker 2: and the way in which they were not only angry

792
00:43:39,640 --> 00:43:42,239
Speaker 2: at those who are criticizing them, they were angry at

793
00:43:42,239 --> 00:43:46,319
Speaker 2: their own people, their own reporters, for presenting facts to

794
00:43:46,400 --> 00:43:50,120
Speaker 2: their audiences on the air or on social media platforms.

795
00:43:50,320 --> 00:43:53,200
Speaker 2: And what particularly upset them was anybody fact checking something

796
00:43:53,280 --> 00:43:56,160
Speaker 2: that was said on their own air, even by people

797
00:43:56,239 --> 00:43:59,120
Speaker 2: who are not paid by Fox. To me, what they

798
00:43:59,160 --> 00:44:02,000
Speaker 2: were doing was affirming the idea that news and journalism

799
00:44:02,080 --> 00:44:04,360
Speaker 2: still has some role to play at Fox News.

800
00:44:05,120 --> 00:44:08,040
Speaker 1: How dare you care about the facts? Well, thanks for

801
00:44:08,120 --> 00:44:11,439
Speaker 1: joining us, David, Thanks buddy. You can follow David Folk

802
00:44:11,480 --> 00:44:15,120
Speaker 1: Inflick on Twitter at David Folk Inflick and tune into

803
00:44:15,120 --> 00:44:18,040
Speaker 1: such NPR shows as All Things Considered in Morning Edition

804
00:44:18,640 --> 00:44:23,640
Speaker 1: to hear his always astute takes on the shifting media landscape.

805
00:44:23,719 --> 00:44:29,120
Speaker 1: Here at crash Course, we believe the collisions can be messy, impressive, challenging, surprising,

806
00:44:29,640 --> 00:44:33,759
Speaker 1: and always instructive. In today's Crash Course, I learned that

807
00:44:33,800 --> 00:44:37,879
Speaker 1: what seems to be a bulletproof case against Fox from

808
00:44:37,920 --> 00:44:40,440
Speaker 1: a company that has a clear and long list of

809
00:44:40,560 --> 00:44:45,279
Speaker 1: grievances ultimately may not really be enough to rain Fox in.

810
00:44:46,000 --> 00:44:49,400
Speaker 1: After all, we're in the disinformation era and Fox is

811
00:44:49,440 --> 00:44:53,799
Speaker 1: one of its most primary avatars. What did you learn?

812
00:44:54,400 --> 00:44:56,680
Speaker 1: We'd love to hear from you. You can tweet at

813
00:44:56,680 --> 00:45:00,640
Speaker 1: the Bloomberg Opinion handle at Opinion or me at Tim

814
00:45:00,680 --> 00:45:05,319
Speaker 1: O'Brien using the hashtag Bloomberg Crash Course. You can also

815
00:45:05,400 --> 00:45:08,279
Speaker 1: subscribe to our show wherever you're listening right now, and

816
00:45:08,360 --> 00:45:11,000
Speaker 1: please leave us a review, it helps more people find

817
00:45:11,000 --> 00:45:15,839
Speaker 1: the show. This episode was produced by the indispensable Anamazarakis

818
00:45:16,040 --> 00:45:21,000
Speaker 1: and Moses Adam and Me. Our supervising producer is Magnus Hendrickson,

819
00:45:21,440 --> 00:45:24,960
Speaker 1: and we had editing help. I'm Katie Boyce, Jeff Grocott,

820
00:45:25,080 --> 00:45:29,239
Speaker 1: Mike Niitza and Christine Vanden Bilard Blake Maples does our

821
00:45:29,239 --> 00:45:32,759
Speaker 1: sound engineering and our original theme song was composed by

822
00:45:32,840 --> 00:45:36,840
Speaker 1: Luis Kara. I'm Tim O'Brien. We'll be back next week

823
00:45:37,000 --> 00:45:38,080
Speaker 1: with another crash course