Category: Elections

Actual malice, meet demonstrable truth

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court that “debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.

But Judge [Eric] Davis disagreed.

“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.

The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.

And now, a public service announcement on behalf of America’s sanity

It is the midst of winter here in the Northern Hemisphere…right now forecasters are forecasting their asses off about a major ice storm aimed at a hunk of the South.  The days are still comparatively short, and with the cold weather that has accompanied a lot of rain in our part of the world (is the drought over yet?) I am not alone in looking for more indoor distractions until golf weather returns.

But, please God, not this: American journalism outlets and associated information-providing avenues, would ya stand down on the perpetualization of the campaign for president of the United States!  Stop with the assumption that there is nothing more important to talk about, nothing so critical for me to know about, than who is favored and disfavored by people responding to public opinion polls.  Even if those people are telling the pollsters the truth, who cares right now?!  So much can happen in the months and months before anyone casts a meaningful ballot that these results are pointless; they only serve to keep funds flowing to the political-industrial complex.

It is too early.  It is soooo tiresome.  Even the primaries and caucuses that happen more than six months before the general election aren’t helpful in learning about candidates.  The whole thing has become a proxy for the on-going national food fight on “cultural issues” (that really aren’t even about culture) and not about administering government operations or even on providing leadership on issues.

And, at this point a year away from the first voters voting in the next national election, what you are telling us has proved to be, so often, so very wrong.  In Politico, Jeff Greenfield reminds us that in most recent years the “favorites” at this point do not win the contest.  You remember Howard Dean trouncing John Kerry in 2004, right?  And 2008, when Rudy Giuliani blew away John McCain while Hillary Clinton obliterated that senator from Illinois with the big ears?

The point here is not to argue for a vow of journalistic silence in the long slog leading up to the actual contests; it’s to put that part of the process into context, along with a serious dose of humility. Yes, Trump looks weakened, but are we really ready to anoint Ron DeSantis the nominee before he proves himself on the big stage? Yes, Biden is an octogenarian whose approval rating has been underwater since August 2021, but is anyone in his party really about to challenge his hold on the White House?

If you need something civic to worry about, worry about the government debt ceiling and the on-going budget deficits; give some thought to how our country can help our allies stifle threats from Russia and China; consider the real causes for and possible humane solutions to the humanitarian crisis at our southern border and the budget crisis it’s created for federal and state governments.  You could engage in the speculation about which team will win the Super Bowl or who will be selected as the next head coach of your favorite NFL team.  You could even talk to your friends about who will win The Bachelor, but please promise to do that verrry quietly so the rest of us can’t hear you.  But please leave the next race for president alone for now.

And if you need something to keep you warm on these cold winter days and nights, curl up with The Columbia Journalism’s Review of how American journalism handled coverage of Donald Trump.  There’s something here to warm the hearts of media-haters everywhere.

Florida man referred for criminal prosecution

The House January 6 committee’s investigation has produced all the evidence that should be needed to send a former president to jail.  (Who would have believed we’d ever come to that point in this country?)  Testimony from Republicans – from people who willingly and eagerly worked for the former guy, yet also valued their own good names and reputations and the importance of truthfulness under oath – makes it unavoidably plain, to any clear-eyed person able to honestly evaluate the evidence, what happened.

Before the election was even held and before anyone had been able to count any votes, Donald Trump laid the groundwork for his con by asserting that any election he might lose would of necessity be fraudulent, and his hangers-on assembled baseless “legal” theories to advance the story that Trump was a victim…that all Americans and patriots were victims of Democrats and progressives and America-haters, that the people whom they had let themselves believe were pedophiles and socialists and opponents of fascism and Trump-haters had stolen their country.

As the votes were being counted the Trumpers pursued dozens of cases in court – in many cases, shopping for Trump-appointed judges they expected would be willing to do anything to please “Mr. Trump” – and they lost, over and over and over again, the judges all finding that there was no basis for the complaints and no evidence to prove them.  There was not, and still is not, evidence to prove that there was fraud committed in the 2020 general election for president that was significant enough to change the outcome.  Hence, no reason to rise up in rebellion.  Still, the crybaby con man refused to accede to reality, despite the efforts from family and friends and staff and lawyers and insightful bloggers that he man up and do the right thing: peacefully stand aside for his lawfully-elected successor as president, as American law and tradition have held for more than 225 years.

Trump encouraged supporters to organize a rally in Washington on the day Congress was to certify his defeat, where they could stage a demonstration that appealed to his overweening sense of himself, his unshakeable narcissistic belief in the grandeur of him!  After all, who else but Trump could engender such devotion from the suckers and losers he so detested, that these proud Americans would stage an armed assault on the seat of their own government on his behalf?

Again today there was an air of disbelief from committee members who told the part of the story about how Trump never made any effort to stop this attack on America – never called on any law enforcement assets or federal agencies to defend the Capitol, never issued a call to his supporters to straighten up and go home.  Are we surprised at that, really?  I’ve got a clear picture in mind of him glued to TV and patting himself on the back in the realization that this plan that was so crazy it just might work…was working!  Until it wasn’t, I guess…until enough supporters on the outside looking in, and enough members of Congress on the inside looking out and pleading for help, gained the critical mass to convince even the Great and Powerful Trump that the jig was up.  Even then he couldn’t make himself admit to being in error: he professed his love for these “special” Americans who were at that moment still committing treason and gleefully sharing the incriminating evidence of their crimes on social media.  Geniuses.

Any list of his questionable behavior since his return to private life – since his big boy pout of “snubbing” Joe Biden’s inauguration – is irrelevant to the possible criminal charges of inciting or assisting an insurrection, obstruction of an official proceeding of Congress, conspiracy to defraud the United States, and conspiracy to make a false statement that arise from the January 6 attack on the Capitol.  (Perhaps another time.)  I applaud the committee’s recognition that others in government played a role in Jan. 6 that should not be ignored: kudos for the Ethics Committee referrals against House Republican leader Kevin McCarthy and GOP members Jim Jordan, Scott Perry and Andy Biggs for (like Trump) refusing to comply with committee subpoenas.  You can’t just thumb your nose at a Congressional committee and expect there to be no consequences.

Of course this isn’t the first time we’ve had ample evidence of Trump’s…shall we say, wrongdoing; Congress made history when it twice impeached him for high crimes and misdemeanors.  Well, Democrats in Congress did that; the feckless Republicans succumbed to a partisan effort to protect their own – a president of their own party, and more crucially their own jobs and power from the electoral annihilation they expected they would suffer from their MAGA constituents.  The Republican leadership of the incoming Congress will be powerless to stop this disbanding select committee’s work or the publication of its findings.  It’s up to the Justice Department now to do something about protecting the integrity of our democracy from those who think the laws do not apply to them.

Storm warning

First, point out to anyone who complains when all of the ballots in Tuesday’s elections have not been counted by their bedtime Tuesday night and says that is evidence of widespread voter fraud that that is pure bull.  All the votes have probably never been counted just a few hours after the polls are closed, certainly not in an era when we encourage everyone to vote and accommodate their exercise of their rights with early voting and voting by mail and voting from overseas and such modern developments.  And second, don’t listen to anyone who argues on election night that there is evidence of widespread voter fraud – especially if they do so on the Fox “News.”  First, it would take a thorough investigation to prove that accusation.  Second, no such investigation has ever proven that fraud pervasive enough to change the results of elections has ever happened.  (OK, retiring the italics now.)

I don’t know what the results of Tuesday’s elections will be, but I feel confident we won’t find that the poisonous political divide across our country has miraculously healed.  The fight for democracy, as some have cast it, won’t be over whenever this week’s votes are finally tallied, because the fight never ends.  “The price of liberty is eternal vigilance” said…someone, I guess, but apparently not Mr. Jefferson despite many citations, but it’s a great thought to keep in mind: any system designed to guarantee freedom will face threats from those who find your freedom and mine an impediment to their own power.  (You know who I mean.) So how do we keep our spirits up in the face of that on-going threat?  Dahlia Lithwick has a great prescription in Slate.

It is easy to feel despair. The folks who keep disparaging those who worry about the future of democracy seem uninterested in the fact that one party refuses to accept election results, inflames election violence, admits the entire plan is one-party rule, and brushes off and even jokes about vigilante violence. Those same people have been adept at pushing us into semantic arguments about whether we’re using the right words to describe what we see happening right before our eyes. The problem with wasting our time fighting about whether the best word to use in this particular situation is “authoritarianism,” or “fascism,” or “vigilantism,” or “lawlessness,” is that such things can often only ever be empirically established in retrospect. We can hold the I Told You So Olympics in 10 years. Let’s get that on the books.

Call it whatever you like, but this speedy descent into a world in which people who are fundamentally unethical and unserious hold too many levers of power is not normal and it’s not funny. Even for the people striving to find meaning and purpose in the ugliness, the temptation to cede ground, give up, and go small is alluring. That they want you to cede ground, give up, and go small is in fact the problem we can name right now.

My rabbi recently reminded me of a useful way to think through the fog. Citing another spiritual hero last weekend, Aurora Levins Morales, she reminded me that there is always a difference between the weather and the stars. Morales, teaching in 2017, warned that it is too easy to be buffeted by the changeable weather, and in so doing, to lose sight of the immutable stars. The stars, in this telling, are a “constant to steer by, sometimes hidden by storm clouds, but high above them, untouched by wind or rain.”

The weather is different. Weather, Morales conceded, can be “violent, drenching, harsh.” But it isn’t constant. If we do nothing but chase and feel the weather, she wrote, “we could spin forever from emergency to emergency, shouting no to each new crime—but that would be steering by chasing clouds.”

The weather, and the stars: I think that’s a great way to think about it.  There’s the weather, that which we see every day and which changes day to day and in some cases hour to hour—it seems big and important, but it’s transient within the span of our own observation.  The stars, although not permanent in that firmament, can give each of us something long-lasting to steer by.  Lithwick again:

I spent the week before midterm elections that could help determine the fate of democracy in the United States trying to pick my own way through a careening mess of the world into those buckets: Weather versus star. Elon Musk is weather; so is Marjorie Taylor Greene. Tucker Carlson is weather. Even losing tens and thousands of followers on Twitter is, respectfully, just weather. It all matters, sure, and it’s all painful. But it’s a series of transient states to distract you from what is real.

Stars are the things that don’t ebb and flow with the showy Twitter feuds, or the mutable hourly outrages, or public performances of ghastly daily mediocrity. For some of us, the stars are the upcoming elections and the extraordinary acts of voter registration, postcarding, election protection, and democratic engagement. For some of us the stars are the law, the rule of law, and the efforts to bring accountability for lawbreaking. For some of us the stars are efforts to build a tolerant, pluralist world in the face of rising racial and religious intolerance and xenophobia.

(snip)

As we move through the frightening and destabilizing days to come, the weather will attempt to consume more and more of your time and attention and energy. Fascists will tweet more fascism to try to distract you from the impacts of their fascism. My entirely inadequate advice will remain unchanged: Sit in the foulness of the roiling storm and do your work, whatever that may be, and triangulate by the light of whatever star feels eternal to you. Take care of your family; they need you, and take care of your health. Take care of your community; it needs you, and take care of someone in your community who doesn’t know Twitter is even a thing. Vote. Help others vote. Register voters. Staff voter protection hotlines. Place your own body between someone unkind and someone vulnerable. Read a book. Help a kid. Give someone food and love and respect. Donate something you don’t use. Ask for help. Don’t give your time or attention to anything small enough to diminish you along with it.

We’re in the weather, and the temptation to do nothing but talk about the weather is fierce. But above and beyond there are still fixed and immutable values and principles and we must try as best we can to steer by those things instead.

(snip)

You won’t always be able to see them, but the stars are still there. And we will get through the storms ahead, even if we don’t yet believe it, because the storms are not the story. We are the story. Keep looking up.

Wh-wh-wh-what?

I had to go back and read it again: did that story indicate that Republicans and Democrats in the U.S. Senate are in agreement on a bill designed to fight off some future “January 6” effort to steal the results of the election?  Why, yes; yes it did:

Mitch McConnell (R-Ky.) has endorsed a bipartisan electoral count reform bill in the Senate, giving the legislation a key boost over a similar bill the House passed last week. Both bills seek to prevent future presidents from trying to overturn election results through Congress, and were directly prompted by the Jan. 6, 2021, attack on the Capitol by a pro-Trump mob seeking to stop the certification of Joe Biden’s electoral win.

The Electoral Count Reform and Presidential Transition Improvement Act, sponsored by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.), would amend the Electoral Count Act of 1887 and reaffirm that the vice president has only a ministerial role at the joint session of Congress to count electoral votes, as well as raise the threshold necessary for members of Congress to object to a state’s electors.

Speaking on the Senate floor Tuesday afternoon, McConnell said he would “strongly support” the legislation…

(snip)

The Senate and House bills differ chiefly in how much they would change the threshold necessary for members of both chambers to object to a state’s results. Currently only one member each from the House and Senate are required to object to a state’s electors. The House electoral reform bill would raise that threshold to at least one-third of the members of both the House and the Senate, while the Senate version would raise that threshold to at least one-fifth of the members of both the House and the Senate.

I’m not saying this would solve all our problems; I am saying it is heartening (if a little surprising) to see members of both parties taking action to benefit the country instead of pandering to their hard-line supporters.  I could get used to this…