Two news organizations issued corrections recently. One was the New York Times. The other was Fox Business. One concerned an honest mistake. At considerable embarrassment to itself, the Times admitted to having been scammed by the subject of one its podcast series. Fox Business did not admit to anything, but instead ran an interview that directly contradicted some—actually a small fraction—of the false, hysterical, and malevolent conspiracy theories about election fraud the network has been pushing.
If you were watching Lou Dobbs Tonight on December 18, you saw something jarring—a dose of reality. Dobbs, who hosts the top-rated “business” show on TV (which is a commentary on the audience, but never mind), has been peddling outright misinformation for a very long time. Before he moved to Fox, he was a fixture on CNN, where he reported, falsely, that immigrants were causing a huge spike of leprosy cases. Dobbs has a perhaps sincere, but nonetheless maniacal fear and hatred of immigrants. He pumped out baseless allegations that the LDS church was purposely violating immigration laws to smuggle Mexicans into the country, and said that one-third of prison inmates were illegal aliens (not even close). But nothing has topped his recent fulminations about the election. When Attorney General William Barr said he had not seen evidence of voter fraud significant enough to affect the outcome of the election, Dobbs sailed off the rationality cliff altogether:
For the attorney general to make that statement, he is either a liar or a fool or both. He may be, perhaps, compromised. He may be simply unprincipled. Or he may be personally distraught or ill. But in no way can he honestly stand up before the American people and say that the FBI has, with any integrity or intensity, investigated voter fraud in this country—and then say it did not amount to anything.
So the December 18 segment must have taken some of Dobbs’s 300,000 or so viewers by surprise. It was a pre-taped interview with Edward Perez of the Open Source Election Technology Institute. Someone (not Dobbs) asked Perez questions about vote fraud such as “Have you seen any evidence of Smartmatic sending U.S. votes to be tabulated in foreign countries?” Perez had not.
Fox Business has not had a sudden attack of conscience, nor has it concluded that its reputation depends upon some semblance of fact-checking. No, this uncharacteristic moment of candor was in response to a 20-page demand letter from lawyers for Smartmatic, one of the companies Dobbs and other Fox figures have been slandering as tools of the deep state, a cat’s paw for a dead Venezuelan dictator, and so forth. Smartmatic is credibly threatening to sue Fox. The letter makes for bracing reading:
Fox News stated and implied that (1) Smartmatic has a corporate relationship with Dominion Voting Systems (“Dominion”), (2) Smartmatic has a corrupt relationship with the Venezuelan government, including Hugo Chávez, (3) Smartmatic’s technology and software were designed and used to fix elections, (4) Smartmatic’s technology and software were widely used in the 2020 U.S. election, (5) Smartmatic’s technology and software were used to fix the 2020 U.S. election, (6) Smartmatic sent votes to foreign countries for tabulation, (7) Smartmatic’s technology has been banned from certain jurisdictions, (8) Smartmatic has ties to the Democratic party and George Soros, and (9) Smartmatic’s technology and software has numerous security weaknesses. All these statements and implications are false and defamatory.
The letter follows up with page after page of verbatim quotes from Rudy Giuliani, Sidney Powell, Maria Bartiromo, and Dobbs spreading lies about the election that include allegations about Smartmatic.
The reason this is no ordinary Fox lie is that Smartmatic is not a public figure. Since New York Times v. Sullivan in 1964, it has been pretty much impossible to defame a public figure in the United States. Plaintiffs must show not just that the news story was wrong, but that it showed “reckless disregard for the truth or falsity” of the content. Though this policy permits the public square to be saturated with lies, it is considered worth the price to maintain uninhibited debate about matters of public importance.
The standard for private persons, or in this case companies, is different. There is no public purpose to be served by letting a newspaper falsely report without fear of a libel suit that Mr. Joe Smith is an embezzler. Most state laws require a plaintiff to show mere negligence on the part of a news organization or other defendant. The plaintiff must also show damages, namely that the defamatory content harms its capacity to do business. Smartmatic’s business is running elections. They may have a strong case.
As Ben Smith notes in today’s New York Times, the Smartmatic founder, Antonio Mugica, has hired the lawyer who “won the largest settlement in the history of American media defamation.” And “Mugica isn’t the only potential plaintiff”: Dominion Voting Systems, similarly smeared by the president and his media allies, is in a comparable legal position.
So no surprise that Fox Business has taken the precaution of airing the segment of “clarifications” not just on Lou Dobbs Tonight but also on Maria Bartiromo’s and Jeanine Pirro’s programs.
So much for Exhibit A. Here’s Exhibit B. The New York Times issued a retraction of its award-winning series “Caliphate,” which featured interviews with a Canadian named Shehroze Chaudhry who claimed to have joined ISIS and to have committed crimes in Syria. On September 25, 2019, Canadian police arrested Chaudhry and charged him with perpetrating a terror hoax. In a podcast mea culpa, Times executive editor Dean Baquet acknowledged error:
When the New York Times does deep, big, ambitious journalism in any format, we put it to a tremendous amount of scrutiny at the upper levels of the newsroom. We did not do that in this case. And I think that I or somebody else should have provided that same kind of scrutiny, because it was a big, ambitious piece of journalism. And I did not provide that kind of scrutiny, nor did my top deputies with deep experience in examining investigative reporting.
Later in the podcast, probed by Michael Barbaro about why the Times failed its own standards in this case, Baquet admitted that “confirmation bias” played a role. “Good journalism comes from some sort of internal debate over whether or not the stuff that supports the story is more powerful than the stuff that refutes the story. . . . [W]e just didn’t listen hard enough to the stuff that challenged the story.” The Times returned the Peabody Award the series had received. In short, the paper did the right thing. A little late? Yes. In its own story about the failure, the Times acknowledges that Chaudhry gave an interview to the CBC in 2018 recanting what he had told the Times. And critics of the Gray Lady have trouble forgetting the gnawing matter of the Pulitzer prize the Times received for Walter Duranty’s false reporting from the USSR in the 1930s denying the Terror-Famine. The Times eventually (in 2003) acknowledged that Duranty’s reports were false, but has oddly sidestepped the question of returning the Pulitzer.
Still, there is a yawning chasm between the Times and Fox (and its imitators at OANN and Newsmax, who have also been named by Smartmatic’s attorneys). For all its faults and biases, the Times is in the news business. It holds itself to standards and acknowledges error. Fox et al. are propagandists and provocateurs. Who was harmed by the Times’s error? Only the Times itself. ISIS certainly has no reputation to damage, and Chaudhry is not an injured party, he appears to be a scam artist.
Who was harmed by the Fox crowd’s lies? An individual company sure, but also faith in democracy itself. Most people assume that where there’s smoke, there’s fire. Subjected to a deluge of misinformation from Donald Trump and his enablers, millions of Americans have had their confidence in the most basic institution of democracy—free and fair elections—badly shaken.
The lawyer-extracted corrections are welcome, but they cannot begin to undo the damage these pernicious liars have perpetrated.