I’m not an expert on First Amendment protections but I know BS when I see it and this statement from Fox is full of it: “If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election. We are proud of our election coverage which stands in the highest tradition of American journalism.”
Although Fox suggests it merely presented all sides of the election issue, the truth is the network put its weight behind implicating Smartmatic in the "stolen election" and presented the Smartmatic side as a fig leaf of balance.
Law & Crime has more:
The core of the motion to dismiss leans heavily on the First Amendment. Put simply, Fox argues that when the President of the United States and his surrogates publicly allege that an election was rigged, stolen, or otherwise improperly (or at least questionably) conducted, the press has a constitutional right to be able to disseminate and dissect the comments in the public sphere.
Sure, if by "dissect" you mean "promote."
In the court papers, Fox says its broadcasts fairly reported the assertions made by Trump and his surrogates. Its court papers say that Fox News content relied on court documents on file with state and federal clerks of court — which are matters of public record that can be reported with impunity.
And what about fairly reporting the truth, which is that Smartmatic had nothing to do with Trump's loss? Its only involvement in the 2020 election was a contract with Los Angeles County, which is not even part of a swing state.
Again, I’m not a lawyer but it seems to me that Fox is trying to outsource to Smartmatic any obligation to investigate or verify what the network’s partisan guests say. More from Law & Crime:
In its motion to dismiss, Fox, the defendant, argues that Smartmatic is a public figure and has not adequately pleaded “actual malice.” Critically, Fox says that its hosts repeatedly said that Smartmatic had denied the accusations against it and that Smartmatic refused to further respond to or to participate in Fox’s coverage. It is difficult for a plaintiff to win an “actual malice” argument when it refused to engage with the journalistic process of uncovering the truth.
“As the story unfolded, and Smartmatic denied many of those allegations, FOX covered that as well, including by reporting Smartmatic’s denials, offering Smartmatic the opportunity to tell its side, and soliciting the views of disinterested third parties on the veracity of the allegations against Smartmatic, sometimes in a debate-like format,” the documents state. “In short, FOX did exactly what the First Amendment protects: It ensured that the public had access to newsmakers and unquestionably newsworthy information that would help foster ‘uninhibited, robust, and wide-open’ debate on rapidly developing events of unparalleled importance.”
Whether this will work in a court of law remains to be seen. Stay tuned.
(Bartiromo image via screen grab)