Weekend Edition: Insufficiently public, insufficiently just

Fox News's settlement might be getting in the way of an opportunity to get what we need from the Sullivan standard and our defense of the First Amendment in the Dominion lawsuit.

There has been a lot of ink spilled over the last month on the Dominion v Fox News lawsuit — and even more on the settlement that was announced this week minutes before opening arguments in the trial. The analysis and commentary has spanned all kinds of ground reflecting just how complex and important this case could be. From our relationship to the First Amendment to liability and responsibility in media to public protections of democratic culture to legal questions of harm and standing — there’s a lot of ground to cover here in hoping to get our heads around the case, the issues, the result, and the consequences.

I want to focus on two statements from the settlement coverage to illuminate what I think are the most important long-term questions here:

“Money is accountability,” Stephen Shackelford, a Dominion lawyer, said outside the courthouse on Tuesday.

The headline for New York Times media critic’s otherwise excellent essay from James Poniewozik: “Everybody Knows What Fox News Is Now”

Does justice demand acknowledgment, apology, and amends?

One of the central issues in this case is the role of healthy information systems and their connection to open, public scrutiny of public leadership. It is about both freedom of speech and freedom of the press. But all of these things have to work well as systems, and not just as rhetorical sentiments. Our discussion this week has mostly been shaped in ways that have been blurred by the bluster from either the plaintiff or defendant or even from the way the media has covered the case — too much self-interest, posturing, and spin to see what we really need here. It is really about what we need and what we get from the systems that support moral justice and what actually constitutes public accountability.

If the idea that money is accountability — as in answerability, blameworthiness, liability, and the expectation of account-giving (meaning, story, not record of debits and credits) — is true, then justice is 100% for sale. There is no “stop lying” — there is no aspect of you “may not continue on this path”. No demand for acknowledgment much less contrition, apology, or demand to make amends by changing behavior much less actively undoing harms. Only: the toll for this path, this damage costs this much — 10% of your revenue from last year. Perhaps a reasonable size speeding ticket, but if your intention is a generational shift in public political and civic cultures, then 1% of revenue from the last five years would be a no-brainer cost of doing the business of undermining pluralism in America.

What do we mean when we say public?

I am always allergic to sentences that start with “everyone thinks…” or “everyone knows…” and in this case the “everyone” in Poniewozik’s title is actually horribly narrow and likely fails to include the community most in affected by the misconduct at issue. In lieu of actual justice or broadly public, broadly shared clarity, we have speeding tickets and declaration of universally known obvious truths that are neither obvious nor widely known. The community that was most lied to has been the least likely to hear anything about the case much less the result or consequences. If “everyone” was in fact affected, why was it so easy to discard the requirement of a public apology? Isn’t there a case to be made about public standing? Why was this in civil court from the beginning? Why not talk about criminal charges for public harms? This behavior — the lying, the deep commitment to profit over fact, the active undermining of our public sphere — may seem all-too-common, but is fact deeply un-American, so where is the US v Fox News suit?

What next for journalism in media?

Some in the press are now worried that the Sullivan decision that generally protects reporters from libel charges when covering public officials by setting a higher standard for intent and motive with regard to any errors in reporting might be in jeopardy. But that standard can stand and in fact would be a useful standard in this case if we explicitly define the responsibilities of news and journalism in the terms and language given to us by Justice Brennan in the Sullivan decision: actual malice — intentional or caused by a reckless disregard for the truth. If regard for the truth (sincere adherence to fact) is required, then repeated public penchant for lying and pattern of subverting truth in favor of “what people want to hear or feel” or what will support ratings over truth is a clear and specific violation of this standard. This trail wasn’t a risk to weakening a standard but an opportunity to use it to uphold its strength and importance. We finally had an opportunity to test the business model of journalism as being anti-truth (if you optimize for attention you only accidentally or incidentally provide truth), and we blew it by settling for more money than likely would have been available in damages. (And despite his seemingly genuine concern for his people, Dominion CEO Dan Poulos NYT guest essay reveals all the same blindspots about what we really needed here.) We get no justice, no real public accountability, and no chance to put a stake in the ground about what we need from news and to strengthen the power of Sullivan by using it not just to defend journalists but to defend journalism as a real source of truth from those who readily and regularly abuse it for profit and an active effort to undermine healthy democratic culture.

The fact that we talk about justice in the language of “account” reveals something about our commitment to the morality of justice. I don’t want to hold Fox News to account — I want our leadership to refuse them (and anyone else who behaves the same and is proven to violate these standards) the right to use the term “news” to validate propaganda. And when Poniewozik talks about how “everyone knows”, we need him to be right. Words mean things — and when we abuse their meanings the concepts and systems they represent stop working, too.

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