A Legal Remedy for Virus Hoax Talk?

flashing yellow

Eric Wemple, Fox News has never been so right

Mr. Wemple, who writes a WaPo blog on media issues, is dreadfully upset that someone in the state of Washington is pursuing legal action against Sean Hannity and Fox News—based largely, it appears, on the assertion that Fox News virus hoax talk misleads Washington’s consumers, in violation of that states consumer protection laws. Wemple is understandably upset that a judge in a faraway state might conceivably tell him what things are true and what things are not true, what opinions are legitimate and what opinions are illegitimate.

He sees what we lawyers call a big slippery slope problem. Such concerns are entirely legitimate, and Wemple makes some very good points.

That said, I wish to play devil’s advocate and invite you to reflect on this question:

Is there a First Amendment right for a person, knowing that his words are false, and motivated by malicious intent, to use words that are likely to cause those relying on his statements to risk death or serious physical injury?

In Schenk v. United States (1919), Justice Oliver Wendell Holmes famously wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The quote from the good Justice was, as we shysters like to put it, high dictum—”a judge’s expression of opinion on a point other than the precise issue involved in determining a case.” The case at bar was not about intentionally and falsely uttering words likely to cause physical harm. Instead, the case at bar was about writing words intended to encourage people to disobey the law—and, on that specific question. a lot of legal water has flowed under the bridge since Justice Holmes’ 1919 decision.

And yet, I believe it remains interesting that, writing 101 years ago, Justice Holmes thought it axiomatic that the Constitution does not forbid punishment of one who, knowing his words are false, utters words in such a manner, and in such a place and time, that his words are likely to result in death or serious physical injury.

Now, just because Justice Holmes thought his dictum stated an axiomatic truth does not mean that you or I have to accept the assertion. But, on the other hand, if we disagree with the Holmes dictum—and if we claim, therefore, that Fox News ought to be immune from any legal accountability for its actions—then, I submit, it is incumbent on us to defend that position with compelling logical arguments. And this, I think, is hard to do.

And, I would further submit that any argument advocating extreme deference to free speech and freedom of the press ought to be evaluated in light of the legal context.

Political Speech. As a general matter, speech uttered in a political context is immune from scrutiny. In short, you have a constitutional right to lie. I think the policy considerations underlying that doctrine are obvious.

But do you have an absolute constitutional right to lie in other contexts? Nah, not so much.

Untrue Speech that Injures Reputations. State tort law prohibits false speech injurious to reputation—in other words, the law of defamation—is constitutional, with this proviso: if the person claiming to have been defamed is a public figure, the Constitution blocks the claim of defamation unless the victim shows “actual malice,” i.e., the speaker knew that his claim was false or recklessly disregarded whether it was true or false.

I would suggest therefore, that if you advocate blanket immunity for Fox News, you need to show either that reputational interest is more important than the law’s interest in protecting law and health, or that the entire body of case law on the intersection of defamation and free speech is wrong, and should be overthrown.

Commercial Speech. The First Amendment affords some protection to firms advertising their products, but does not protect commercial fraud—i.e., lying to sell your product.

Commercial Speech about Medicines. Finally, note that the Food and Drug Act allows heavy regulation of commercial speech relating to medicines.

Laws Forbidding Reckless Endangerment. My state makes it a misdemeanor to, intentionally or recklessly, create a situation where others are exposed to serious physical danger. I am sure that such laws are common in other states as well. The statute was not written with Fox News’s conduct in mind, but its language certainly seems to fit the bill.

Human Wickedness—Common or Novel

The forms which human wickedness can take are numerous. For the most part, if we behave perversely, our iniquitous conduct fits some common pattern of evil, and the law has established a remedy for it.

At times, however, a person or group will engage in a novel form of wickedness—something not specifically addressed in any statute or judicial decision. That can create a quandary for those advocating legal accountability—and I am sure that Sean Hannity and Fox News will avail themselves of each and every possible argument to dodge responsibility. I do not know whether they will succeed or fail.

But I am pretty sure they do not enjoy a constitutional right, acting maliciously and with knowledge of the falsity of their statements, to encourage their followers to endanger their lives, contrary to the findings of science and medicine.

Something’s Gotta Give: The Great Experiment Barrels Toward its Denoument

Spurred on by Fox News, MAGA Fanatics Gather in Public to Protest Social Distancing

Paul Waldman, Why Fox News and Republicans are promoting a social distancing backlash

But the MAGA Folk Blame Everybody but Trump for the Social Distancing

Jonathan V. Last, Why Don’t COVID-19 Truthers Blame Trump for Anything? If shutting down the country is the worst thing ever then why isn’t Trump getting shredded by the people who think it’s a gross overreaction?

And Trump’s Lickspittle-in-Chief Abjures Him not to “Reopen the Economy” Prematurely

Washington Post, Testing is key to reopening economy, Sen. Lindsey Graham says

And So, the Evil Mass Social Psychology Experiment—Testing How Far Government by Bullshit Can be Pushed as as Political Strategy—Barrels Toward its Conclusion

As we ask once again, How looooow can they go?

Not Looking Good

wheels on the bus

Sean Hannity

An unimpeachable source reports that, “This morning, Sean Hannity told friends the whistle-blower’s allegations are ‘really bad,’ a person briefed on Hannity’s conversations told me. (Hannity did not respond to a request for comment).”

Paul Ryan

The same unimpeachable source also reports,

Among the powerful voices advising Lachlan [Murdoch] that Fox should decisively break with the president is former House speaker Paul Ryan, who joined the Fox board in March. “Paul is embarrassed about Trump and now he has the power to do something about it,” an executive who’s spoken with Ryan told me. (Ryan did not return a call seeking comment.) But a person more sympathetic to Trump has told Lachlan that Fox should remain loyal to Trump’s supporters, even if the network has to break from the man. “We need to represent our viewers,” the source said. “Fox is about defending our viewers from the people who hate them. That’s where our power comes from. It’s not about Trump.”

John Bolton

Mr. Bolton and his mustache are also likely to make an appearance on Fox soon. Mr. Bolton and his moustache know a lot about Ukrainegate. And they do not like Trump.

 

“Why Trump is Likely to be Indicted by Manhattan US Attorney”

indictment

This is the title of an op-ed brought to you by an unimpeachable source, to wit, foxnews.com. Its author is Andrew C. McCarthy. Mr. McCarthy is a right wing pundit, a lawyer, a former prosecutor, and a purveyor of conspiracy theories, e.g., concerning Obama’s “sharia agenda.”

While thinking irrationally about some topics, he can apparently formulate a reasoned argument of some complexity on other subjects. In this, he has much in common with the rest of the human race, including me.

A more accurate, though perhaps less enticing, title for McCarthy’s piece would be something like, How a Close Reading of the Legal Briefs Filed by Manhattan Federal Prosecutors in the Michael Cohen Matter Leads Me to Conclude They Have a Hardon to Indict Trump.

I won’t try to summarize McCarthy’s reasoning, which seems generally persuasive, but will instead commend the Faux News op-ed to your attention, should you be interested.

Some Additional Context

One, most of us don’t like criminals, and prosecutors especially don’t like criminals. Accordingly, inasmuch as Trump is a criminal, it isn’t surprising that the federal prosecutors in New York would have a serious hankering to indict him.

Two, as to whether they are “likely” to indict him, that depends on the views of the Attorney General. I assume that Whitaker would say no. What Barr will say is a very interesting question.

Three, McCarthy uses the opportunity to take a jab at Obama and “his” Justice Department, averring that Obama committed far greater sins than Trump in respect of campaign finance violations, and the Justice Department let him skate. Whatever the merits of that contention may or may not be, it looks as if the wingers are trying to build a case of prosecutorial discrimination.

Four, dropping back a step, I don’t think the best way to nail Trump would be to begin by charging him criminally for covering up his trysts.

Lots of people have the notion that you can have trouble keeping your dick in your pants and yet still be an acceptable president. And likewise, that trying to shush your mistresses is not the very worse thing in the world.

Remember Clinton?

For that matter, remember Thomas Jefferson?

But Trump’s career laundering money for Russian mobsters? Now, that could be a different matter entirely.

As a People, We Have Proved Unworthy of Dear Leader, Who Will Now Wreak His Vengeance

Samson

Five days of fury: Inside Trump’s Paris temper, election woes and staff upheaval

Poll: Trump has little support for reelection bid

Trump’s relationship with Fox News starts to show cracks

Conservative Lawyers Say Trump Has Undermined the Rule of Law

Is Trump’s ‘Ponzi scheme’ crumbling?

We aren’t there yet, but I think the day is coming soon—say, around Christmas time?—when Orange Man concludes that he is surrounded by traitors and just decides to do whatever he can to blow the whole thing up.

There are many things to be said about the circumstances we are in. Here is one of them: if you are still on the Trump train, it’s really, really time to jump off.

Trump train

Some Dare Call it Treason

treason

Senator John McCain—who is dying, and whose views accordingly do not matter—issued this statement:

Jul 16 2018

SASC CHAIRMAN JOHN McCAIN ON TRUMP-PUTIN MEETING

Washington, D.C. – U.S. Senator John McCain (R-AZ), Chairman of the Senate Armed Services Committee, released the following statement today on President Trump’s meeting and press conference with Vladimir Putin in Helsinki:

“Today’s press conference in Helsinki was one of the most disgraceful performances by an American president in memory. The damage inflicted by President Trump’s naiveté, egotism, false equivalence, and sympathy for autocrats is difficult to calculate. But it is clear that the summit in Helsinki was a tragic mistake.

“President Trump proved not only unable, but unwilling to stand up to Putin. He and Putin seemed to be speaking from the same script as the president made a conscious choice to defend a tyrant against the fair questions of a free press, and to grant Putin an uncontested platform to spew propaganda and lies to the world.

“It is tempting to describe the press conference as a pathetic rout – as an illustration of the perils of under-preparation and inexperience. But these were not the errant tweets of a novice politician. These were the deliberate choices of a president who seems determined to realize his delusions of a warm relationship with Putin’s regime without any regard for the true nature of his rule, his violent disregard for the sovereignty of his neighbors, his complicity in the slaughter of the Syrian people, his violation of international treaties, and his assault on democratic institutions throughout the world.

“Coming close on the heels of President Trump’s bombastic and erratic conduct towards our closest friends and allies in Brussels and Britain, today’s press conference marks a recent low point in the history of the American Presidency. That the president was attended in Helsinki by a team of competent and patriotic advisors makes his blunders and capitulations all the more painful and inexplicable.

“No prior president has ever abased himself more abjectly before a tyrant. Not only did President Trump fail to speak the truth about an adversary; but speaking for America to the world, our president failed to defend all that makes us who we are—a republic of free people dedicated to the cause of liberty at home and abroad. American presidents must be the champions of that cause if it is to succeed. Americans are waiting and hoping for President Trump to embrace that sacred responsibility. One can only hope they are not waiting totally in vain.”

Meanwhile, Over at Faux News …

I was curious about whether Faux News is still with him. You might check out

Trump faces bipartisan criticism over press conference with Putin

and

Putin eats Trump’s lunch in Helsinki.

 

 

 

 

 

This Headline is Not from The Onion

Kremlin says it wants apology from Fox News over Putin comments

The Kremlin said on Monday it wanted an apology from Fox News over what it said were “unacceptable” comments one of the channel’s presenters made about Russian President Vladimir Putin in an interview with U.S. counterpart Donald Trump.

Fox News host Bill O’Reilly described Putin as “a killer” in the interview with Trump as he tried to press the U.S. president to explain more fully why he respected his Russian counterpart. O’Reilly did not say who he thought Putin had killed.

“We consider such words from the Fox TV company to be unacceptable and insulting, and honestly speaking, we would prefer to get an apology from such a respected TV company,” Kremlin spokesman Dmitry Peskov told reporters on a conference call.