In a spectacular display of audaciousness, Fox News is defending itself against a defamation lawsuit in the U.S. by saying it should not be punished for broadcasting lies about the 2020 election — but one of the network’s owners, Lachlan Murdoch, has just filed a suit in Australia against a news outlet that he accuses of (wait for it) lying about Fox and the election.
The suit that’s gotten the most attention was filed against Fox last year by Dominion Voting Systems, which was falsely accused by the network’s hosts and guests of rigging the election to deprive then-President Donald Trump of victory. The Dominion suit — a similar one has been filed by another voting company, Smartmatic — seeks $1.6 billion in damages and has advanced into discovery, with Fox hosts Sean Hannity, Tucker Carlson, and Jeanine Pirro reportedly being deposed.
Fox’s defense is that its broadcasts are protected under the First Amendment, which has consistently been interpreted by courts as allowing news organizations to publish falsehoods about public figures so long as it’s not done knowingly and there is not a reckless disregard for the truth. Fox contends it wasn’t endorsing conspiracy theories about the election, rather it was just allowing people to voice the lies, including its hosts. However, a Delaware judge, denying the network’s motion to dismiss the suit last year, noted that “the Court can infer that Fox intended to avoid the truth” and ruled that the case should proceed.
The curious thing is that last week Lachlan Murdoch, the CEO of Fox Corp. and son of the network’s founder, Rupert Murdoch, filed a defamation suit in Australia against a small independent news site called Crikey that published an article describing the Murdoch family as “unindicted co-conspirators” in the Jan. 6 insurrection and the election lies that preceded it. The legal complaint contends that the Crikey article, as well as social media posts about it, caused Lachlan Murdoch to be “gravely injured in his character, in his personal reputation, and his professional reputation.”
The offending article by Crikey political editor Bernard Keane was about the evidence presented at the Jan. 6 hearings in Washington, D.C., and focused mostly on Trump’s culpability. But its penultimate paragraph noted that Fox had peddled “the lie of the stolen election” and played down Trump’s role in the insurrection. The final line stated that if Trump is indicted, “the Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
That line would not be remarkable if it appeared in America; it’s a statement that is easily defensible under the First Amendment. While Murdoch would have nearly zero grounds for suing in the U.S., Australia does not have anything like the First Amendment. Instead, it has a woeful reputation as the defamation capital of the world.
The upshot is that Fox is trying to have its legal cake and eat it too.
The company argues in the U.S. that it should not be punished for broadcasting lies about Dominion and the 2020 election, while seeking punishment in Australia for what it claims are lies about its role in the election. What’s especially galling is that Fox is trying to avoid any punishment for the significant harm that Dominion has already documented — including threats made against its employees — while Murdoch is seeking damages for “substantial hurt, distress and embarrassment” allegedly caused by an article in a publication whose modest readership has for years heard far worse about Murdoch and his even more loathed father.
“It’s a pretty incredible contrast,” noted Angelo Carusone, the president of Media Matters, a nonprofit media watchdog. “It exposes their inconsistency and hypocrisy.”
The reasons for filing the suit against Crikey are obvious as well as a mystery.
Murdoch’s lawyers, taking advantage of Australia’s strict libel laws, contacted Crikey a day after the article was published, and the outlet took it down. But the article was later returned to the site amid an exchange of unfriendly letters between Murdoch’s lawyers and Crikey. This culminated last week with Crikey publishing the correspondence and challenging Murdoch to carry out his threat of suing — which, in short order, he did. “We welcome Lachlan Murdoch’s writ,” Crikey responded.
On the one hand, the suit makes sense because Murdoch could win in Australian courts. The expense of going through the legal process is considerable on an objective scale but a pittance for a billionaire like him. Crikey, on the other hand, is a tiny publication and has had to launch a fundraising campaign to support its legal efforts.
But lawsuits of this sort are unpredictable because of the discovery process — you never know what might be found once opposing counsel has access to emails and other forms of internal communication. That’s one of the reasons Fox settled a suit that had been filed against it by the family of Seth Rich, the late staffer from the Democratic National Committee whom Fox falsely accused of leaking emails to WikiLeaks during the 2016 election: The company clearly did not want hungry lawyers looking through its confidential correspondence.
“Nobody draws the dots to the Murdochs,” Carusone noted. “The Murdochs run the company. You cannot make the case that they don’t run the company. There is no way those things are taking place without their tacit or explicit consent. Crikey will have the capacity to dig into it.”
The Dominion lawsuit has already opened the potential for disclosures about the Murdochs’ involvement in the publication of conspiracy theories about the 2020 election. The New York Times reported last week that Rupert and Lachlan, in addition to the hosts they employ, may be deposed. The Murdochs traditionally claim that they don’t make day-to-day decisions on programming and would never tell their hosts what to say or not to say. This claim, for which there is already evidence to the contrary, such as text messages between Lachlan Murdoch and Tucker Carlson, can now come under direct scrutiny in Australia if Crikey can assemble the resources to go the distance against the most powerful media family in the world.