Category History

The Stakes

Pat Ryan Leave a comment

“The system” is finally catching up with the non-stop stream of lawbreaking by the former guy and his collaborators that aimed at upending the legal result of the 2020 presidential election.  They were working so hard and fast for so long that it took more than two years for the judges and lawyers on the side of truth, justice and the American way to amass the evidence needed to bring charges, and now the fun has begun.

My favorite character currently is Judge Tanya Chutkan, the federal court judge in Washington hearing the case against Trump (and others) on charges of conspiring to overturn the election.  Her string of figurative “up yours” responses to stupid defense motions is so satisfying: the Trump team isn’t used to being in front of a judge who knows the law, isn’t intimidated by them and their client, and isn’t scared to show it.

For example, this week she rejected arguments from both sides over setting a trial date.  The special counsel suggested jury selection in December and the trial to begin in January…this year; Trump’s lawyers say there is sooo much they have to read to get ready that the trial should be delayed…until 2026!

“These proposals are obviously very far apart,” Chutkan said Monday. “Neither of them is acceptable.”

Chutkan said that Trump will have to prioritize the trial and that she would not change the trial schedule based on another defendant’s professional obligations, for example a professional athlete’s.

The public has an interest in the fair and timely administration of justice, Chutkan said. Trump’s lawyer said going to trial next year would violate Trump’s rights, noting the millions of pages of discovery material that prosecutors have turned over.

“This is a request for a show trial, not a speedy trial,” Trump lawyer John Lauro said of the special counsel’s proposed schedule. “Mr. Trump is not above the law, but he is not below the law.”

After Chutkan ruled, Lauro stood to make an objection on the record and state that Trump’s defense team will not be able to adequately represent its client with that trial date. Chutkan noted his objection and moved on.

Earlier in the hearing, Chutkan said that while the special counsel team’s proposal was too soon, Trump’s proposal of 2026 was not reasonable. “Discovery in 2023 is not sitting in a warehouse with boxes of paper looking at every single page,” Chutkan said.

“This case is not going to trial in 2026,” Chutkan said. She said Trump’s team has had time to prepare already; the public has known about the existence of the grand jury investigating Trump since September, and the identity of many of the witnesses has been known.

In Chutkan’s court, and others hearing cases alleging election interference by Trump and his co-conspirators, defense lawyers are smugly (because how else does a Trump lawyer ever do anything?) letting it be known that their clients couldn’t possibly be guilty of a crime because they honestly believed that the election had been compromised.  This is even a point in a California state bar complaint against John Eastman.  As Jennifer Rubin reported in the Washington Post,

At a critical hearing last week in the California bar proceedings, designated legal expert Matthew A. Seligman submitted a 91-page report, which I have obtained from the state bar, that strips away any “colorable,” or legally plausible, defense that Eastman was acting in good faith in rendering advice to the now four-times-indicted former president Donald Trump.

This report has serious ramifications for Eastman’s professional licensure and his defense in Georgia. Moreover, his co-defendant and co-counsel in the alleged legal scheme, Kenneth Chesebro, who has employed many of the same excuses as Eastman, might be in serious jeopardy in his Oct. 23 trial. (Another lawyer, Sidney Powell, also requested a speedy trial.)

In his report, Seligman addressed whether “the legal positions advanced by Dr. John Eastman in relation to the counting of electoral votes for the 2020 presidential election” were reasonable. Specifically, he assessed whether — as Eastman, Chesebro and others posited — Mike Pence, as vice president, had “unilateral authority to resolve disputes about electoral votes or to take other unilateral actions with respect to the electoral count” or could “delay the electoral count for a state legislature to take action with respect to a state’s electoral votes and whether a state legislature may lawfully appoint electors after the electoral count commences.”

Seligman reviewed the 12th Amendment, the Electoral Count Act of 1887 and “centuries-long practice by Congress” to find that the Eastman positions were so devoid of support that “no reasonable attorney exercising appropriate diligence in the circumstances would adopt them.” In essence, Seligman strips away the pretense that Eastman (and, by extension, Chesebro) engaged in routine legal work.

(snip)

Seligman’s damning report might well determine the outcome of Eastman’s bar proceedings. However, the implications of the report extend well beyond Eastman’s law license. For example:

  • If Eastman engaged in a bad-faith scheme to overthrow the election, then he (and presumably other co-defendant lawyers) lacked any colorable defense under federal law and therefore cannot remove their case to federal court.
  • If Eastman engaged in a bad-faith scheme to overthrow the election, none of his or other lawyers’ conversations are protected under the ambit of the First Amendment any more than a memo explaining how to break into a bank would be.
  • If Eastman engaged in a bad-faith scheme to block the certification of the election, then one could conclude he and others in the alleged “criminal enterprise” had the requisite criminal intent for state charges including a state racketeering charge.

The significance of stripping away the legal plausibility of the cockamamie scheme to undermine our democracy cannot be overstated.

It’s that “undermining our democracy” part that should be most alarming – to us all.  But I don’t think it is, to many of us – certainly not, it seems, to the people who showed up at the arena in Milwaukee this week for the first “debate” among candidates for the Republican presidential nomination.  As Will Bunch wrote in the Philadelphia Inquirer,

As the night dragged on, the only “issues” the crowd seemed jazzed about were brash challenges to scientific truths that it considers elite liberal pieties — like [Vivek] Ramaswamy’s false claim that climate change solutions have killed more people than climate change — or authoritarian vows of violence, like Ron DeSantis’ promise to render any drug dealers at the border “stone cold dead.” None of the eight people on that stage “won” — only Trump, his angry mob, and a 21st-century brand of American fascism that is the enemy of democracy, the writing on the wall.

(snip)

America is entering its most important, pivotal year since 1860, and the U.S. media is doing a terrible job explaining what is actually happening. Too many of us — with our highfalutin poli-sci degrees and our dog-eared copies of the late Richard Ben Cramer’s What It Takes — are still covering elections like it’s the 20th century, as if the old touchstones like debates or a 30-second spot still matter.

What we are building toward on Nov. 5, 2024, might have the outward trappings of an election, but it is really a show of force. What we call the Republican Party is barely a political party in any sense of the word, but a dangerous antisocial movement that has embraced many of the tenets of fascism, from calls for violence to its dehumanizing of “others” — from desperate refugees at the border to transgender youth.

There is, in reality, no 2024 primary because this movement embraced its infallible strongman in Trump eight years ago. And there is no “Trump scandal” because — for them — each new crime or sexual assault is merely another indictment of the messenger, the arrogant elites from whom their contempt is the number one issue. These foot soldiers stopped believing in “democracy” a long time ago — no matter how big an Orwellian sign Fox News erects.

If you watch enough not-Fox cable TV news, you’ll occasionally see an expert on fascism like New York University’s Ruth Ben-Ghiat or Yale’s Timothy Snyder explaining the roots of this American authoritarianism, or you can read a piece like Margaret Sullivan’s Guardian take on the fascist appeal of Trump-clone Ramaswamy. But then it’s back to your regular programming, including a desperate desire to frame today’s clash in the context of long-lost 20th-century democratic norms, and to blame any transgressions on a mysterious “tribalism” that plagues “both sides.”

(snip)

I’ve been inside and outside of Trump rallies in Hershey and West Chester and Wildwood, and what I learned is that the only issue that matters isn’t an issue at all, but their contempt for the media outlets like CNN they believe look down on them and their savior.

(snip)

It was so revealing Wednesday night when Fox News launched its debate coverage by playing a snippet of Oliver Anthony’s No. 1 hit, the blue-collar populist rant “Rich Men North of Richmond,” with its mix of anti-government elitism and a downward punch at welfare recipients. It felt like the Fox message was, “We’re not comfortable talking about what’s really happening with the white working class in America, so we’re just going to turn it over to this angry singer with the big beard.”

The news media better get comfortable talking about what is really happening in places like Anthony’s Farmville, Va. They ought to be explaining both the legitimate anger voiced by the singer’s lament over working overtime hours for low pay, the manipulation of that anger by demagogues like Trump, and the uncomfortable questions about how much of the rage is over threats to outdated and detestable hierarchies of white supremacy and the patriarchy.

(snip)

These are the stakes: dueling visions for America — not Democratic or Republican, with parades and red, white, and blue balloons, but brutal fascism or flawed democracy. The news media needs to stop with the horse race coverage of this modern-day March on Rome, stop digging incessantly for proof that both sides are guilty of the same sins, and stop thinking that a war for the imperiled survival of the American Experiment is some kind of inexplicable “tribalism.”

We need to hear from more experts on authoritarian movements and fewer pollsters and political strategists. We need journalists who’ll talk a lot less about who’s up or down and a lot more about the stakes — including Trump’s plans to dismantle the democratic norms that he calls “the administrative state,” to weaponize the criminal justice system, and to surrender the war against climate change — if the 45th president becomes the 47th. We need the media to see 2024 not as a traditional election, but as an effort to mobilize a mass movement that would undo democracy and splatter America with more blood like what was shed Saturday in Jacksonville. We need to understand that if the next 15 months remain the worst-covered election in U.S. history, it might also be the last.

“What happened happened”

Pat Ryan Leave a comment

Permit me to ignore my own advice just this once and call attention to current and dangerous behavior by some candidates for the Republican nomination to be president of the United States: their efforts to rewrite history.  Not to alter the timeline by winning the election and creating a future that would be recounted by historians as-yet unborn, but to reach a hand into the past and “revise” the record of what actually happened.  Like the un-impeachment of Donald Trump.  Both of them.

In a recent Salon article Austin Sarat and Dennis Aftergut ridicule the current fever dream among House Republicans to impeach President Biden, and remind us that these same geniuses want the House to change its mind on the historic impeachments of the former guy.

…many of these same MAGA acolytes want to rewrite history by taking the unprecedented and fanciful step of expunging the record of Trump’s two impeachments. Last month, Speaker Kevin McCarthy, desperate to hold onto his slender majority, gave in to those demands when he announced his support for that effort.

That calls to mind a Russian saying from Stalinist times, when rewriting history to suit and flatter a totalitarian leader was de rigueur: “Russia is a country with a certain future; it is only the past that is unpredictable.”

Constitutional experts say there is no mechanism to undo an impeachment; intelligent observers see the effort as a transparent attempt to (choose your own turn of phrase here; I’ll go with) “curry favor” with the former president and MAGA nation.  It’s an effort totally consistent with their modus operandi of ignoring verifiable truth and saying whatever they need to be true in the moment.

Consider the effort in Florida to sanitize the school curriculum on Black history – the whole “slaves learned skills they could benefit from later in life” eyewash.  Florida isn’t alone in this effort to fight attempts to teach a more complete view of the history of Black people in America, but Eugene Robinson says it has the spotlight now because its governor is trying to become president.

It was Gov. Ron DeSantis, running for the GOP presidential nomination as an “anti-wokeness” Savonarola, who inspired this latest effort to both-sides slavery. (Months ago, the state rejected an Advanced Placement course on African American studies, saying it “significantly lacks educational value.”) On Friday, DeSantis blamed the state Department of Education — “I wasn’t involved,” he claimed — but also defended the abomination: “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life.”

Where to begin? I’ll start with my own family history. One of my great-great-grandfathers, enslaved in Charleston, S.C., was indeed compelled to learn to be a blacksmith. But he had no ability to “parlay” anything, because his time and labor were not his own. They belonged to his enslaver. He belonged to his enslaver.

To pretend my ancestor was done some sort of favor by being taught a trade ignores the reality of race-based, chattel slavery as practiced in the United States. He was sold like a piece of livestock at least twice that I know of. To say he “developed skills,” as if he had signed up for some sort of apprenticeship program, is appallingly ahistorical. As was true for the millions of other enslaved African Americans, anything he achieved was in spite of his bondage.

(snip)

The problem with all of this is that it seeks to contextualize American slavery as something other than what it was: a unique historical crime, perpetuated over 2½ centuries. Slavery was practiced here on an industrial scale, based on race and the belief in white supremacy, with not just individuals but also their descendants consigned to lifelong servitude.

The Florida curriculum does a similar trick in interpreting the Jim Crow period. It calls for studying “acts of violence perpetrated against and by African Americans” — blaming both sides — but then mentions the “1906 Atlanta Race Riot, 1919 Washington, D.C. Race Riot, 1920 Ocoee Massacre, 1921 Tulsa Massacre and the 1923 Rosewood Massacre.” All of those atrocities, and many more, were White riots against innocent Black victims.

What happened happened. We will not move forward until we truthfully acknowledge where we’ve been.

That acknowledgement is apparently a high hill to climb (a tough pill to swallow?) for many Americans. Some say those people are just racists and that’s why they won’t admit that the demonstrable facts of history are true; Paul Waldman has an alternative explanation:

When you see some of the positions taken by the Republicans running for president on issues that touch upon race, it can be hard to ascribe to them anything but the ugliest motives.

Why, for instance, would Florida Gov. Ron DeSantis and former vice president Mike Pence each announce their intention to change the name of an Army post to honor a Confederate general? Why would DeSantis advocate for new school standards in his state that appear to present slavery as a brief and salutary job training program?

Some will simply answer, “Racism.” But there’s a more complicated answer that better explains what’s happening on the right. The true commitment of today’s Republican Party is not to racism (though there are plenty of genuine racists who thrill to what the GOP offers, and especially to former president Donald Trump). It is to what is best described as anti-antiracism.

In a sense, anti-antiracism is its own ideology. It holds that racism directed at minorities is largely a thing of the past; that whatever racism does exist is a product only of individual hearts and not of institutions and systems; that efforts to ameliorate racism and promote diversity are both counterproductive and morally abhorrent; and, most critically, that those efforts must not only be stopped but also rolled back.

Listen to conservative rhetoric on book banning, affirmative action, teaching history or any of the ways race touches their war on “wokeness,” and you hear this theme repeated: We must stop talking and thinking about racism, and most of all we must stop trying to do anything about racism.

(snip)

Adherence to these kind of anti-antiracist ideas has become “a matter of partisan identity,” going to the core of “what it means to be a Republican,” [political scientist Rachel] Wetts told me. “More than 80 percent of White Republicans endorse these views at very high levels.” In fact, in Wetts and [Robb] Willer’s analysis, the only variable that predicted support for Trump more strongly than anti-antiracism was whether you identified as a Republican.

That helps explain why Republican candidates are so determined to call attention to their efforts to dictate what can be said about race in classrooms, to punish companies for promoting diversity, equity and inclusion (DEI), or even to undo attempts to stop honoring the Confederacy.

(snip)

For some people, “opposition to antiracism is a way of expressing racial animus without explicitly endorsing it,” Wetts said. For others it’s about “distaste, anger and frustration with antiracists themselves,” an expression of revulsion against liberals and everything they want to do. Anti-antiracism is one more way to own the libs.

Feelings have become central to the way conservatives think about race; it’s no accident that many of the laws regarding critical race theory passed in conservative states explicitly outlaw discussions in schools that could make students feel “guilt” or “discomfort.” Anti-antiracism is fueled by White people’s unease with the growing diversity of American society, the knowledge that they’ve lost their dominant position — and to boot, liberals keep trying to make them feel bad.

(snip)

It is easy to see why Republican politicians think anti-antiracism is so potent. It allows people to claim a commitment to equality while opposing policies meant to achieve actual equality. It enables them to proclaim their own victimhood, which has become absolutely central to the conservative worldview.

The lies about history, the Big Lie about the 2020 election: they all fit right in with the the endless stream of lies that have been such an effective campaign message wooing MAGA nation.  And maybe, like most advertising, connecting with the audience at a subliminal level.

F0l4dkcXsAEA4bF

Court rejects race-based solution for race-based unfairness…hopes for the best

Pat Ryan Leave a comment

It’s no easy trick to find a way for a society to accept responsibility for the wrongs of the past that will satisfy everyone as being fair and effective.  In today’s America, we can’t even agree that “we” have such a responsibility, much less concur on how we can make a good faith effort to address the injustices suffered by the generations of Black Americans since the early 17th century.

Three generations ago America made an effort when Congress passed the Civil Rights Act and the Voting Rights Act.  But many felt more was needed, and as Jerome Karabel explains in today’s New York Times, “In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action.”

Speaking less than a year after the passage of the Civil Rights Act and two months before the passage of the Voting Rights Act, he invoked a metaphor that remains resonant 50 years later: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Affirmative action – race-based preferences in education, hiring and more – have been an attempt to correct historic race-based mistreatment.  Karabel says “After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave.”

From the Washington Post:

The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling involved race-conscious programs at Harvard and UNC, it will affect virtually every college and university in the United States.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

But he added that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

(snip)

In a lengthy dissent, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent [of previous court rulings supporting affirmative action].

Sotomayor, who has said her own life is an example of how affirmative action programs can work, spoke at length from the bench on Thursday, a tactic justices use to mark their profound disagreement with a decision.

“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation,” she wrote, joined by [Justice Ketanji Brown] Jackson and Justice Elena Kagan.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor’s dissent said. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

As Jackson put it, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.  But deeming race irrelevant in law does not make it so in life.”

If it can find that race can’t be a factor in college admissions, it should only a matter of time before the court expands that reasoning to include private business, and to say that considerations of race – in the form of diversity, equity and inclusion initiatives – are also unconstitutional.

More from Karabel:

While race-conscious affirmative action is no longer permissible, it is worth noting that the Supreme Court ruling leaves intact many other forms of affirmative action — preferences for the children of alumni, preferences for the children of donors and preferences for student athletes, including for such boutique sports as sailing, fencing and squash. The consequences of this change are not entirely predictable, but based on what happened at the University of Michigan and the University of California, Berkeley, after they were barred from pursuing race-conscious admission policies, a sharp decline in Black and perhaps Hispanic enrollments at highly selective colleges and professional schools seems almost certain. To offset the loss, many colleges are likely to switch to a policy of affirmative action based on economic class. Such a policy would attenuate, although by no means eliminate, the racial impact of the Supreme Court’s ruling.

Affirmative action based on economic class is likely to enjoy broader public support than race-conscious affirmative action; according to a recent Washington Post poll, 62 percent of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. [David Brooks discusses this idea in the New York Times today.]  But affirmative action on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. As we confront a world without race-conscious affirmative action, we would do well to remember the Rev. Dr. Martin Luther King Jr.’s admonition that to produce real equality, “the movement must address itself to the question of restructuring the whole of American society.”

I think most Americans agree that race should not matter, in college admissions or anything else.  (Not all agree, I’m afraid…and you know who you are.)  We wish it were true.  But as we all learned in our youth, wishing a thing doesn’t make it so.  Honest people will acknowledge that while we as a society have made great progress, race does still matter today.  Rulings such as this one seem aimed at making sure that some white Americans are shielded from any responsibility for righting the wrongs of the past.  Or of even acknowledging that there were past wrongs that need addressing.  That’s not a viable strategy for righting the wrongs.

(Jelani Cobb on “The End of Affirmative Action” in The New Yorker: “…almost from the outset, critics of the policy could be seen impatiently tapping their watches, questioning how long (white) society was meant to endure the patent unfairness of these racial considerations.”)

Actual malice, meet demonstrable truth

Pat Ryan Leave a comment

…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.

Don’t let the bully win

Pat Ryan Leave a comment

If you’ve been having trouble believing that Vladimir Putin is an unhinged, authoritarian war criminal, I’d suggest you take a few minutes to check out this report from last week’s “60 Minutes” to learn more about the conditions in Ukraine today.  It’s a story about how the people of that country are dealing with Russia’s on-going assault on civilian targets: apartment buildings and schools, power plants and utility infrastructure, and the non-combatants who are suffering as “collateral damage” from attacks that violate global rules on the ethical conduct of war.  (Yeah, there are such things; crazy.)

They are heroic.  Inspiring.  To watch what they have to put up with – conditions they do not deserve, that they suffer as a result of an unprovoked invasion of their sovereign country – made me cry.  Made me wonder, what can we do about this?

The “we” in this case is the rest of the world, everybody outside of Putin’s borders.  The people who just assumed, one year ago when Russia illegally invaded its neighbor, that the global condemnation of this blatant aggression would lead in short order to a low-key pullback by Russian forces with attendant harrumphing about maintaining what he claims as the historical Russian Empire, and then some international back-and-forthing as this big thing faded into the background…so we could maintain our comfort level about life in general and go on to the next big thing.

(People inside of Putin’s borders, we could use your help, too.)

But that didn’t happen.  What I think those of us outside of the professionals in intelligence and diplomacy and history didn’t and maybe still don’t really understand, is that Putin is a criminal (no matter what George W. saw in his soul) and he doesn’t care what the rest of the world thinks or says about how he treats his neighbors.  He hasn’t won easily on the battlefield as he assumed he would, so on top of taking Ukraine’s land and its children he is launching terrorist attacks on the people in the hope that they will lose their resilience and force their government to give up the fight.

I wish I could think of something more “we” could do that would help those people.  Congress should be commended for joining much of the rest of the western world in continuing to provide military assistance to Ukraine so it can keeping fighting the fight. I get it that, when dealing with someone who has become as isolated as Putin, there are risks to us if he decides our support of Ukraine needs to be challenged, but we can’t abandon these people.  They are the latest victims of a megalomaniacal bully, one who can no more be counted on to stop bullying today than could the chancellor of Germany in 1938.