FOX, Lies & Videotape: debunking an internet myth

Much ado is being made about the supposed “war” between the Obama White House and FOX News. As the New York Times reports:

Attacking the news media is a time-honored White House tactic but to an unusual degree, the Obama administration has narrowed its sights to one specific organization, the Fox News Channel, calling it, in essence, part of the political opposition.

“We’re going to treat them the way we would treat an opponent,” said Anita Dunn, the White House communications director, in a telephone interview on Sunday. “As they are undertaking a war against Barack Obama and the White House, we don’t need to pretend that this is the way that legitimate news organizations behave.”

Her comments are only the latest in the volatile exchange between the administration and the top-rated network…

While some appear concerned that the White House feud with FOX News raises First Amendment concerns, we at the Center for Competitive Politics are not among them. Frosty relationships between administrations and the media are nothing new, as Thomas Jefferson’s quote that “The man who reads nothing at all is better educated than the man who reads nothing but newspapers” attests.  And who can forget ex-Vice President Spiro Agnew and his comment about the “nattering nabobs of negativism?”

What is of interest to CCP, however, is that the controversy has seemingly given new life, or at least a fresh story to attach itself to, to the claim that FOX News successfully went to court in order to get a ruling explicitly protecting a First Amendment right to “lie” in its programming. The story is often used to support demands for censorship of the airwaves under the guise of the so-called “fairness doctrine,” along with calls to extend it to cable among those who understand that FOX News is a cable news outlet.

Variations of the story abound on the internet. Here are excerpts from one that is fairly representative of the general charge:

The Media Can Legally Lie

By Mike Gaddy

In February 2003, a Florida Court of Appeals unanimously agreed with an assertion by FOX News that there is no rule against distorting or falsifying the news in the United States.

Back in December of 1996, Jane Akre and her husband, Steve Wilson, were hired by [FOX affiliate and owned station]… WTVT in Tampa Bay, Florida. In 1997 the team began work on a story about bovine growth hormone (BGH), a controversial substance manufactured by Monsanto Corporation…

According to Akre and Wilson, the station… wanted the reporters to use statements from Monsanto representatives that the reporters knew were false and to make other revisions to the story that were in direct conflict with the facts. Fox editors then tried to force Akre and Wilson to continue to produce the distorted story. When they refused and threatened to report Fox’s actions to the FCC, they were both fired.

Akre and Wilson sued the Fox station and on August 18, 2000, a Florida jury unanimously decided that Akre was wrongfully fired by Fox Television when she refused to broadcast (in the jury’s words) “a false, distorted or slanted story…” Akre was awarded a $425,000 settlement [but]… Steve Wilson… was ruled not wronged by the same actions taken by FOX.

FOX appealed the case, and on February 14, 2003 the Florida Second District Court of Appeals unanimously overturned the settlement awarded to Akre. …the Florida Appeals court claimed that the FCC policy against falsification of the news does not rise to the level of a “law, rule, or regulation,” it was simply a “policy.” Therefore, it is up to the station whether or not it wants to report honestly.

During their appeal, FOX… argued that, under the First Amendment, broadcasters have the”right to lie”or deliberately distort news reports on public airwaves. Fox attorneys did not dispute Akre’s claim that they pressured her to broadcast a false story, they simply maintained that it was their right to do so.

Other sites report the tale with similar outrage. A sample:

Fox News Wins Lawsuit To Misinform Public – Seriously

Six years ago, Fox News successfully argued in court that it had a constitutional right to report lies

Fox News Has a First Amendment”right to lie”- Updated

Needless to say, those who are not fans of FOX have quickly seized upon this story to bolster the idea that FOX is somehow less than a “legitimate” news organization. After all, what kind of news organization would go to court to protect the”right to lie”to their audience?

For example, reader comments on a recent article at the Huffington Post on the Obama/FOX controversy include multiple references to the story:

“FOX News went to Court, to Sue for the”right to lie”to their viewers.”

“A court in Florida… ruled that Fox was allowed to spread false propaganda on their Fox channels.”

“Fox news is on record in court stating that they lie in their content. Their chief counsel admits this and says so what. It doesn’t matter that we lie and obfuscate as a matter of course in our fake news company. The judge in Florida of course agreed this was fine…”

Clearly, the story that FOX News got a court ruling in favor of its right to “lie” in its news broadcasts has become something of a talking point among the cable news channel’s detractors. There’s only one problem – the story as popularly told is completely false, and is based almost exclusively on hysteria, hyperbole, and half-truths.

There was indeed a lawsuit filed by journalists Jane Akre and Steve Wilson over their dismissal from FOX affiliate WTVT in Tampa, Florida. After that fact, however, the story is far different than how it is popularly portrayed.

To begin with, the popular portrayal almost always omits the rather crucial fact that Akre and Wilson lost almost every one of their claims at the trial court. As the Florida Second District Court of Appeal noted in their ruling:

Akre and Wilson sued WTVT alleging… that their terminations had been in retaliation for their resisting WTVT’s attempts to distort or suppress the BGH story and for threatening to report the alleged news distortion to the FCC. Akre also brought claims for declaratory relief and for breach of contract. After a four-week trial, a jury found against Wilson on all of his claims. The trial court directed a verdict against Akre on her breach of contract claim, Akre abandoned her claim for declaratory relief, and the trial court let her whistle-blower claims go to the jury. The jury rejected all of Akre’s claims except her claim that WTVT retaliated against her in response to her threat to disclose the alleged news distortion to the FCC.

The St. Petersburg Times reported on the jury verdict and similarly reported on the failure of Akre and Wilson to win most of their claims:

The jury of three men and three women deliberated nearly six hours before finding that Fox affiliate Channel 13 had retaliated against Jane Akre for a story about a controversial hormone manufactured by the Monsanto Corp.

However, jurors refused to give any money to Akre’s husband, Steve Wilson, an Emmy-winning reporter who also worked on the story.

And the jury did not believe the couple’s claim that the station bowed to pressure from Monsanto to alter the news report.

Despite the limited victory, Akre and Wilson found vindication in the verdict…

It is also not correct to claim, as the Gaddy story quoted above states, that the jury ruled that the FOX affiliate had, in fact, found that the station had attempted to force Akre and Wilson to air “a false, distorted or slanted story…”

Juries do not write opinions, instead they answer specific questions contained in jury instructions. According to a web site maintained by Akre, the jury question on which she prevailed was:

“Do you find that the Plaintiff Jane Akre has proven, by the greater weight of the evidence,   that the Defendant, through its employees or agents, terminated her employment or took other retaliatory personnel action against her, because she threatened to disclose to the Federal Communications Commission under oath, in writing, the broadcast of a false, distorted, or slanted news report which she reasonably believed would violate the prohibition against intentional falsification or distortion of the news on television, if it were aired?”

A careful reading of the jury instruction reveals that the jury was only answering whether they believed Akre had been fired for threatening to lodge a complaint with the FCC alleging broadcast of a false, distorted, or slanted news report, not whether the news report was in fact false, distorted, or slanted.

Akre disputes this interpretation on her own web site, claiming that “The jurors in my case said YES to the fact that Fox was guilty of pressuring me to falsify the news… When you look at the actual jury verdict form, the jury determined it was actually false, distorted, or slanted.  In fact, if jurors did not accept that premise, they could not have gone on to find in my favor…”

But the FCC does not share Akre’s interpretation of the jury verdict. In a 2007 decision by the FCC denying a petition by Akre and Wilson demanding that WTVT’s broadcast license not be renewed, the FCC includes the following footnote:

Although there has been much back-and-forth among the parties about whether the jury in the employment lawsuit found that Station WTVT(TV) violated the news distortion policy, the verdict form did not ask the jury to determine whether WTVT(TV) violated the news distortion policy, but rather to determine whether Station WTVT(TV) fired either employee for threatening to disclose what the Petitioners reasonably believed would be a violation of the news distortion policy.

In addition, Akre’s claim that “…if jurors did not accept that premise, they could not have gone on to find in my favor…” is undermined by her own filing with the 2nd District Court of Appeal in response to the appeal filed by WTVT. Akre’s brief states that “Akre had to prove three elements to establish her claim under the Whistle-Blower Act: (1) that WTVT retaliated against her (2) because she threatened to disclose to the FCC (3) conduct she reasonably and in good faith believed was a violation of the FCC’s News Distortion Policy.”

The same brief later devotes several pages to support this contention, stating in part that “WTVT argues that the Act does not prohibit employer retaliation unless the employee proves an “actual” violation of a law, rule, or regulation… [but the] term “violation” as used in the Act has no obvious meaning, and could encompass both perceived violations or proven ones…”

So the trial jury never reached a conclusion on whether the FOX affiliate had violated the news distortion policy, nor did they have to in order to determine she had been fired in response to the threat by Akre and Wilson to file a complaint with the FCC.

More importantly, and more relevant to the examination of whether WTVT actually asserted a”right to lie”in its newscasts, is that there is nothing on record to show that this argument was ever advanced in court.

In the initial response to the suit by Akre and Wilson, WTVT explicitly rejects that the edits they proposed and ultimately required for the report on BGH to air were “false, distorted, or slanted,” in multiple places. In fact, they allege that it was the story as prepared by Akre and Wilson that was biased and unbalanced.

For example, in WTVT’s response to the initial Akre and Wilson complaint filed in court, WTVT claims that “…Defendant’s news managers realized the series could not be re-worked in time for the scheduled air date, due to the biased and undocumented nature of the pieces themselves…” and “…Defendant’s news managers had begun to suspect… that Plaintiffs were not interested in a fair, accurate, and balanced report on BGH.”

In the “Affirmative Defenses” section of WTVT’s initial filing, the station alleges that “…[station managers'] insistence upon fair, accurate and balanced news reporting does not violate any law, rule, or regulation” and “…The First Amendment [and] Florida Constitution prohibit judicial review of Defendant’s news judgments and the exercise of editorial discretion…”

And contrary to the claim in Gaddy’s story, it is simply not true that “Fox attorneys did not dispute Akre’s claim that they pressured her to broadcast a false story…” They did, in all of their filings.

Whatever the truth of the dispute between the two reporters and WTVT, it seems clear that the station did not at the trial court level admit that it had attempted to distort the news story or assert the”right to lie”in its broadcasts. Instead, the station claimed its editorial decisions were based on an effort to air a fair and accurate story, and defended its editorial prerogatives under the First Amendment – editorial prerogatives that are indisputable, if the guarantee of a free press means anything.

Further evidence that WTVT did not assert at the trial court level any “right to lie”or distort the news is that neither Akre’s response to WTVT’s initial appeal brief nor the petition she and Wilson filed with the FCC make any reference at all to such a claim. Surely, had a claim for a First Amendment “right to lie” in news broadcasts been made at the trial court level, some mention of it would have found its way into either of these two documents (Akre’s brief to the appellate court runs 57 pages, and the FCC petition runs over 90 pages including appendices).

A review of both the initial brief and the reply brief of WTVT for the appeal also reveals no mention whatsoever of a “right to lie” defense. Not surprisingly, the station’s brief does contain multiple references to the First Amendment supporting the contention that editorial decisions and disputes are beyond the purview of the government.

Akre’s own answer brief to the appellate court also suggests that no such First Amendment “right to lie” argument was made by the FOX affiliate. Addressing the issues raised by WTVT’s brief, Akre’s brief states that “WTVT also suggests its conduct was somehow protected by the First Amendment, although it asserts no First Amendment defense in its brief.”

The absence of any reference to a First Amendment “right to lie” defense offered by the station in any of the court filings reviewed, or the petition filed by Akre and Wilson with the FCC, or the FCC’s dismissal of the Akre/Wilson petition, or any contemporary media accounts of either the initial trial or the appeals court proceedings, all very strongly indicate that no such argument was advanced by the Fox affiliate.

It is also worth noting that of all the web sites, blog postings, and online commentary on the subject of the FOX  “right to lie” argument, not a single one that I’ve seen links to anything that would substantiate the claim. Very few even bother to link to the actual 2nd District opinion overturning Akre’s whistleblower verdict, or anything else related to the case itself.

Finally on this point, and perhaps most convincingly, the web site maintained by Akre and Wilson also make no reference to a First Amendment “right to lie” argument advanced by WTVT. The two very obviously believe that the station attempted to force them to produce a false and distorted news article, and have gone to great lengths to promote and advance that belief.

Yet in all the claims and charges leveled directly by Akre and Wilson against the FOX affiliate across multiple venues and platforms, there is not a single mention of any “right to lie” argument allegedly offered by WTVT. They seemingly accuse the station of nearly every other sin imaginable in the world of journalism, but are completely silent on this charge. If there is one place one would expect to find mention and substantiation of the claim that the FOX affiliate had claimed a “right to lie,” it is in the filings and writings of Akre and Wilson. Yet there is nothing.

Sherlock Holmes was once able to crack a case based on a dog that didn’t bark, and the failure of Akre and Wilson to even once mention the allegation that WTVT had asserted a “right to lie” should be the final piece of evidence that no such claim was ever made by the  FOX affiliate.

So, having determined that no First Amendment “right to lie” defense was offered by the station, what about the actual ruling by the 2nd District appeals court? Did it rule, as part of its decision to overturn Akre’s whistleblower victory, that there is no barrier to lying in a news broadcast, that media outlets can freely falsify and distort the news because of First Amendment protections?

No. The court’s overturning of the lower court’s verdict rested on a technical issue, whether the policy of the FCC against “false, distorted, or slanted” news reports was covered under Florida’s whistleblower statute. As the court explains in its ruling:

While WTVT has raised a number of challenges to the judgment obtained by Akre, we need not address each challenge because we find as a threshold matter that Akre failed to state a claim under the whistle-blower’s statute. The portion of the whistle-blower’s statute pertinent to this appeal prohibits retaliation against employees who have “[d]isclosed, or threatened to disclose,” employer conduct that “is in violation of” a law, rule, or regulation. § 448.102(1)(3). The statute defines a “law, rule or regulation” as “includ[ing] any statute or . . . any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4), Fla. Stat. (1997). We agree with WTVT that the FCC’s policy against the intentional falsification of the news – which the FCC has called its “news distortion policy” – does not qualify as the required “law, rule, or regulation” under section 448.102.

The FCC has never published its news distortion policy as a regulation with definitive elements and defenses. Instead, the FCC has developed the policy through the adjudicatory process in decisions resolving challenges to broadcasters’ licenses…

In other words, the FCC’s policy against news distortion is simply not covered under Florida’s whistleblower statute. The court never addressed the First Amendment defenses raised by the FOX affiliate, and in fact the term “First Amendment” appears nowhere in the six-page decision.

While the FCC’s policy against news distortion is not covered by Florida’s whistleblower statute, it remains in effect and continues to prohibit the airing of “false, distorted, or slanted” news stories. The fact that Akre and Wilson filed their own petition with the FCC urging that WTVT not have its broadcast license renewed is ample proof that the Florida court ruling had no impact on the FCC’s policy against news distortion, and that it stands today.

If, as claimed by some detractors of FOX News, the court had ruled that there was a “right to lie” held by broadcasters, Akre and Wilson certainly would have been aware of it, and would certainly not have filed a petition urging WTVT’s license renewal be denied based on an FCC policy they would have known to be invalid as a result of their own lawsuit.

Tellingly, in rejecting the petition by Akre and Wilson, the FCC also makes no reference whatsoever to the imagined “right to lie” allegedly argued for by FOX and accepted by the 2nd District appeals court. The FCC’s silence on this issue is yet more evidence that no such decision was made by the Florida court.

It is clear from the evidence presented here that FOX did not argue, as claimed by several of its critics, that it had a First Amendment to lie in its news reports. It’s also plain that the Florida courts did not rule that FOX and other broadcasters had such a right.

It would be nice to hope that this analysis will finally put to rest the myth of a First Amendment “right to lie” case involving FOX News. Nice, but probably unrealistic. At the very least, it should give ammunition to those intent on countering this particular wild internet rumor.

With thanks to KingOneEye of the web site DailyKos, who suggested I write this up.

Comments

  1. Frank Kennedy says:

    I enjoyed finding your response to the “right to lie.” While, as a layman, I had trouble digesting all the legal twist and turns, it appears that FOX argued its right to censure or prevent information not suiting its editorial guidelines.

    Since “editorial guidelines” can be anything at all, it doesn’t seem like a strong commitment to the “truth.”

  2. Sharon McCann says:

    This is very good legal hair splitting of the very sort that got us the decision in the first place. It remains essentially as opponents of fox news have proclaimed. What the case did was defang the FCC’s ability to hold stations accountable for reporting which was “false on the face”

    The case took the authority from the FCC and made it impossible to imppose reasonable restrictions on free speech that have existed for decades and served or media and our country well. The result is now a national security issue and should be treated as such.

  3. Jeffrey Sawyer says:

    Ummm if you go to the original source that you do give in your site. You will find that the winning argument for FOX news is: We agree with WTVT that
    the FCC’s policy against the intentional falsification of the news – which the FCC has
    called its “news distortion policy” – does not qualify as the required “law, rule, or
    regulation” under section 448.102.

    So FOX won by arguing it is legal for it to lie about the news.

  4. I find the statement “If, as claimed by some detractors of FOX News, the court had ruled that there was a “right to lie” held by broadcasters, Akre and Wilson certainly would have been aware of it” a little unrealistic: Do you honestly think this would be common knowledge to simple employees, or to the common public? You don’t think they would suppress that type of information? News caster: “Before we get into our news cast you should know that we have the right to lie if we want to”. That’s just not a story any news agency would want to run, no matter how honest they are, because it hurts their entire industry as a whole.

    Do you have a law degree, publicly recorded references, or notarized documents from a legal authority that your interpretation is the correct one (I’m not claiming I have one, nor that I am necessarily educated in the law)? Would you be willing to swear under full commercial liability that your answer is definitive? I read the entire court case, and until such time as you can provide evidence of your claims, I think this statement wins out:

    “We agree with WTVT that the FCC’s policy against the intentional falsification of the news – which the FCC has called its “news distortion policy” – does not qualify as the required “law, rule, or regulation” under section 448.102.”

    The reason the claims did not fall under the whistle-blowers act (as you stated) is that no CRIME was being committed, they were not breaking a “law, rule, or regulation under section 448.102″ (again, if you read the entire document you can see where they define the word “rule”, and it doesn’t apply here).

    I believe you have interpreted it wrong. In fact, I don’t think you read this document to the end, considering it ends with:

    “Because the FCC’s news distortion policy is not a “law, rule, or regulation” under section 448.102, Akre has failed to state a claim under the whistle-blower’s statute. Accordingly, we reverse the judgment in her favor and remand for entry of a judgment in favor of WTVT. Reversed and remanded.”

    I mean, they are saying it flat out: Akre did not bring a crime that fit under the whistle-blowers act (and the “crime” the alleged was telling a lie), therefore Akre had no case. Appeal upheld.

    Since I cannot find any other site or information to corroborate your story I am going to consider your interpretation flawed and purely your opinion, and I think others should as well. Perhaps you should consider an update with references, or a retraction?

  5. “Fair & Balanced” hehehehehehe

  6. Edwin Hurwitz says:

    Just because the central holding of the case was not that Fox could lie doesn’t mean that it’s not precedent that can be used in subsequent cases. In fact, one of the cornerstones of modern capitalist theory, corporate personhood, was created as legal precedent, without discussion in court proceedings during trial let alone proper litigation, from a note made by a court reporter with a massive conflict of interest who applied his own interpretation to pre trial comments from the judge. See Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). In some cases, the footnotes are where all the heavy lifting happens. See Footnote 4 from Carolene.

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