Category Intellectual Dishonesty

“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.”)

You can’t ignore that corrupt elephant in the room forever

Pat Ryan Leave a comment

Permit this interpretation of this afternoon’s vote in the Republican-controlled Texas House of Representatives to impeach the state’s Republican attorney general: Enough!

Republicans have controlled state government here in Texas for more than 20 years: all the statewide offices are and have been held by Republicans, and GOP members hold and have held a majority in the state House and Senate.  But today, 123 of the 149 House members (one seat is vacant) –- including 60 Republicans and all the House Democrats — impeached Ken Paxton on 20 charges, including bribery, abuse of public trust, and allegations of felony securities fraud that Paxton has been dodging trial for since shortly after he first took office as attorney general in 2015.  (Yes, the Texas attorney general has been under indictment for alleged securities fraud for eight years now, and still no trial!)  From The Texas Tribune this afternoon:

The move to impeach came less than a week after the House General Investigating Committee revealed that it was investigating Paxton for what members described as a yearslong pattern of misconduct and questionable actions that include bribery, dereliction of duty and obstruction of justice. They presented the case against him Saturday, acknowledging the weight of their actions.

“Today is a very grim and difficult day for this House and for the state of Texas,” Rep. David Spiller, R-Jacksboro, a committee member, told House members.

“We have a duty and an obligation to protect the citizens of Texas from elected officials who abuse their office and their powers for personal gain,” Spiller said. “As a body, we should not be complicit in allowing that behavior.”

And that, I believe, is the key to today’s decision.  Ken Paxton has been suspected of…oh, shall we say, questionable behavior…since his time as a legislator.  Did I mention the indictments on charges of securities fraud?  (Oh yeah, I did.)  And as The Texas Tribune explains, “Many of the articles of impeachment focused on allegations that Paxton had repeatedly abused his powers of office to help a political donor and friend, Austin real estate developer Nate Paul.

In fall 2020, eight top deputies in the attorney general’s office approached federal and state investigators to report their concerns about Paxton’s relationship with Paul.

All eight quit or were fired in the following months, and most of the details of their allegations against Paxton were revealed in a lawsuit by four former executives who claim they were fired — in violation of the Texas Whistleblower Act — in retaliation for reporting Paxton to the authorities. Paxton’s bid to dismiss the lawsuit is awaiting action by the Dallas-based 5th Court of Appeals.

According to the lawsuit, the whistleblowers accused Paxton of engaging in a series of “intense and bizarre” actions to help Paul, including intervening in an open-records case to help Paul gain documents from federal and state investigations into the real estate investor’s businesses. They also accused Paxton of directing his agency to intervene in a lawsuit between Paul and a charity, pushing through a rushed legal opinion to help Paul avoid a pending foreclosure sale on properties and ignoring agency rules to hire an outside lawyer to pursue an investigation helpful to Paul’s businesses.

In return, the whistleblower lawsuit alleged, Paul paid for all or part of a major renovation of a home Paxton owns in Austin. Paul also helped Paxton keep an extramarital affair quiet by employing the woman Paxton had been seeing, the lawsuit said, adding that the attorney general may also have been motivated by a $25,000 contribution Paul made to Paxton’s campaign in 2018.

In their report to the House General Investigating Committee on Wednesday, the panel’s investigators concluded that Paxton may have committed numerous crimes and violated his oath of office.

Investigators said possible felonies included abuse of official capacity by, among other actions, diverting staff time to help Paul at a labor cost of at least $72,000; misuse of official information by possibly helping Paul gain access to investigative documents; and retaliation and official oppression by firing employees who complained of Paxton’s actions to the FBI.

The articles of impeachment accused Paxton of accepting bribes, disregarding his official duties and misapplying public resources to help Paul.

I think it has just gotten to be too much – for Republicans!  Those of them still connected to reality have come to realize that the party’s continued accusations of all manner of perfidy against anything with a Democratic Party label on it are becoming less and less realistic (they’ve already gone far beyond mere believability) as their party continues to pretend there is no corrupt elephant in their own living room.  Some of them, I suspect, would be very happy to have Paxton gone from office but as they come face to face with a mountain of evidence gathered by their own party they’re fed up with the hypocrisy.  Democrats, too, of course:

The Legislature had impeached state officials just twice since 1876 — and never an attorney general — but the House committee members who proposed impeachment argued Saturday that Paxton’s misconduct in office was so egregious that it warranted his removal.

“This gentleman [Paxton] is no longer fit for service or for office,” said committee member Rep. Ann Johnson, D-Houston. “Either this is going to be the beginning of the end of his criminal reign, or God help us with the harms that will come to all Texans if he’s allowed to stay the top cop on the take, if millions of Texans can’t trust us to do the right thing, right here, right now.”

Rep. Charlie Geren, R-Fort Worth, a member of the investigative committee, used his presentation time to criticize Paxton for calling representatives as they worked on the House floor to “personally threaten them with political consequences in the next election” if they supported impeachment.

What does Paxton have to say?  What do think: he reverted to a standard Trumpian response to any accusation at all, saying in a statement that “The ugly spectacle in the Texas House today confirmed the outrageous impeachment plot against me was never meant to be fair or just. It was a politically motivated sham from the beginning.”  Right.

What’s next?  The Texas Constitution calls for Paxton to be temporarily suspected from office and the state Senate to conduct a trial, where it would take the votes of two-thirds of the members (21) to permanently remove Paxton from office and bar him from holding state office in the future.  There are just 12 Democratic senators right now, so some of the 19 Republicans would have to vote against Paxton in order for him to be found guilty.  By the way, one of those Republican senators is Angela Paxton.  Ken Paxton’s wife, Angela Paxton, who might be a juror in a trial that accuses her husband of, among other things, using his official position to hush up an alleged extramarital affair.  The state constitution requires all senators to attend an impeachment trial, no word yet if she will recuse herself.

EDITOR’S NOTE: Since I wrote this piece the Republican chairman of the Texas House committee that investigated Attorney General Ken Paxton and brought the articles of impeachment has explained why he believes that “Paxton must be held accountable for his flagrant abuses of his office and of the public trust.” Read it for yourself right here in the Houston Chronicle.

Self-inflicted wounds from the culture wars

Pat Ryan Leave a comment

There is little that Texas state legislators like doing more than passing a bill to help people who own and run businesses in Texas.  They will pass such laws even if the result hurts Texas citizens, as it publicly reinforces the perception that Texas leaders are “reactionaries uncomfortable with delivering an equitable society.”  Case in point, as elaborated by Chris Tomlinson in today’s Houston Chronicle: the current effort to outlaw diversity, equity and inclusion programs which Republican leaders claim discriminate against white people, even though those leaders are likely to “drive away private investments in higher education and disqualify the state for federal programs worth billions” if they succeed.  (Not online yet, will post the link when available)

Last week the GOP majority of the Texas Senate approved a bill to prohibit all Texas public colleges and universities from even having DEI programs or staff.  (Democrats were unanimous in opposition, for what that’s worth here in Texas).  The bill must still pass the State House before it could be signed by the governor, but the governor is already on board.

[Governor Greg] Abbott has argued DEI programs sound good on the surface but that they have been manipulated to pass on potential job applicants because of their race. He sent warnings to colleges and universities in February, which was followed by schools like the University of Texas, Texas A&M University and the University of Houston all announcing that they would step back from DEI programs or review how their programs work.

Despite that response by the big state schools, State Senator Brandon Creighton and his Senate colleagues have taken action.  Why?  Well, Creighton has said “while he is all for diversity, DEI programs have gone too farratio3x2_1200, and are actually excluding some job candidates and ultimately not succeeding in increasing the diversity of college faculty.”  So, his plan for achieving more diversity is to kill the programs that are designed to achieve more diversity.  Not to improve the programs so that they work better and achieve the result he claims he wants, but to drive a stake through their hearts so they can never rise from the grave.  Cue the law of unintended consequences.

When it comes to correcting generations of discrimination, inequity and exclusion, though, Texas Republicans think historical injustices will fix themselves.  Gov. Greg Abbott and Lt. Gov. Dan Patrick are pushing Senate Bill 17 and other bills to make programs intended to correct past wrongs illegal.

They don’t care that a ban on diversity, equity and inclusion, known as DEI, will drive away private investments in higher education and disqualify the state for federal programs worth billions.

When companies pay the fee to join the University of Texas at Austin’s Energy Institute, DEI programs for students and faculty are among their top concerns, institute director Brian Korgel told me.  Federal and private grant applications always have DEI sections.

“Companies expect us as universities to play a role in terms of fostering the diversity of the student body, both in admissions and in terms of graduation and retention,” he said.  “For a single investigator applying for a science grant from the National Science Foundation, you really need to address diversity in some way in your proposal; otherwise, it becomes a real challenge to get the work funded.”

The Energy Institute has joined the Center for Houston’s Future, Exxon, Sempra and other companies to apply for a Department of Energy grant to build a hydrogen hub along the Gulf Coast.  But the application asks about DEI efforts.  The Legislature’s anti-DEI laws imperil that application.

In tandem with their valiant fight against DEI programs, Republicans in Austin have opened a second front against those who would defend DEI: academics, like Jeremi Suri of The University of Texas, who Tomlinson quotes arguing the similarities between the political leaders of today and those of post-Civil War America who fought to protect white privilege.

But Suri can reach such conclusions without fear of retribution thanks to the principle of academic freedom and tenure.

Abbott, Patrick, Creighton and their GOP allies intend to end those, too.

Professors who violate SB 17 can be placed on unpaid leave and fired, while universities will lose state funding and face $1 million fines.  Creighton’s Senate Bill 18 would end tenure, and Senate Bill 16 would make it illegal for Suri to teach the ideas in his book.

University deans already complain that the Legislature’s anti-intellectualism makes recruiting the world’s top minds to Texas difficult.  But ending tenure and fining professors for breaking with white supremacist orthodoxy will make it nearly impossible.

The best minds want to work at the best universities.  The best companies want to recruit from the best universities.  If the best professors take their research and go, corporations will follow them.

Culture wars may make good politics for the right, but they will also have consequences for the state’s economy.

So: you can’t have programs designed to try to overcome white privilege and promote greater diversity, can’t even teach about it, but you can be fired in contravention of the principles of academic freedom and tenure if you do.  Give Texas Republican leaders credit: they can be thorough when it comes to attacking the outward manifestations of their own inner demons.

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.