If you Google my real name, you'll find a bunch of published appellate cases in which I was the attorney of record. So if I get hit by a bus tomorrow, my name will live on to anyone who Googles it, or better yet, plugs it into Westlaw.
Such immortality is not always favorable. This week, Fox News' Steve Doocy and Brian Kilmeade, co-hosts of "Fox and Friends," are finding that out.
See, Doocy and Kilmeade heard a story about a Maine student who threw a bag of ham onto a table where Somali students were eating in order to offend their religious sensibilities. The ham-tosser was suspended. This, to Fox News sensibilities, was a perfect story about political correctness and the threat of Islamic fundamentalism in the form of ham-adverse eighth-graders, who pose a dire threat to our traditional American pork industry, or something. Anyway, they did a little digging, and found some sites on the internet running an article about the incident. That article attributed a series of completely ludicrous statements to the school's principal and the local superintendent, such as "children must learn that ham is not a toy."
Doocy and Kilmeade loved this stuff, which support the Fox-favorite theme that modern public education is dominated by liberal Islamic-coddling morons who want to force all our kids to gay marry and study French. And naturally, since they found the data on the internet, it was reliable. So they gleefully ran the story on Fox and Friends, mocking the principal and other district officials.
There was just one problem — though the ham incident did occur, the story with the funny quotes was a fake, as anyone greater intelligence or journalistic sensibility than a dead pig could see.
The school superintendent, mocked and made to look like a moron based on false information, sued for defamation. Last week a federal judge in Maine granted summary judgment in Fox's favor, finding that the superintendent could not prove the requisite actual malice. That's almost certainly the right decision.
What's delicious is that the judge went out of his way to explain that Doocy and Kilmeade are a couple of idjits who are an embarrassment to journalism. The judge refers to them as "gullible" three separate times,
The defendants were certainly gullible. Even if they believed the segments of Plagman that they repeated on the air, at least two portions of the Plagman piece were so absurd that they should have raised the defendants’ truth-seeking antennae and caused them to question the accuracy of the article as a whole. First, Plagman “quotes” Levesque as saying “All our students should feel welcome in our schools, knowing that they are safe from attacks with ham, bacon, porkchops, or any other delicious meat that comes from pigs.” (emphasis added). Later, he “quotes” a student as saying “I’m just glad that kid I beat up yesterday was white; I wouldn’t want to be in that mess.”65 If negligence as to the reliability of a source were the standard, this should be enough. One would hope that when a publisher is poised to report outrageous quotations from such a source, for a story that is not even breaking news, the publisher’s failure to confirm the accuracy of the quotations demonstrates “an extreme departure from professional standards.” Connaughton, 491 U.S. at 665. But unprofessional conduct does not amount to reckless disregard of the truth, and “failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.” Id. at 688.
The court ends by handing Doocy and Kilmeade the ultimate Pyrrhic victory in the tagline:
The First Amendment protects journalists even when they are gullible.
Now, a good lawyer will argue that these comments are only dicta, not necessary findings. But I still hope this judge submits this opinion for publication. And I hope that the superintendent — wrong as he is on the law — appeals this to the United States Court of Appeals for the First Circuit. Because it would be hilarious to be able to cite legal authority for the proposition that Fox News journalists are gullible and unprofessional. That would spare us of asking judges to take judicial notice of it.
Last 5 posts by Ken White
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- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017