It was an outlandish claim, but was it “outrageous”?
In May 2017, Fox News reported that Seth Rich, a Democratic National Committee staffer who was slain in D.C. at age 27 in 2016, had “contact” with WikiLeaks in the midst of the 2016 presidential campaign. The story came together through the most baroque of circumstances, with an investigative reporter, Malia Zimmerman, consulting with a former D.C. cop-turned-private investigator, not to mention a Texas-based financial adviser.
The conspiracy-tinged report spent a week in the public realm before Fox News retracted it.
In March, the parents of Seth Rich sued Fox News, alleging intentional infliction of emotional distress, among other wrongs. “They published, republished, and publicized the sham story—which they knew would be covered again and again, and republished, here and around the world—painting Joel and Mary’s son as a criminal and a traitor to the United States,” reads the lawsuit.
This week, Fox News hit back. To prevail in an emotional-distress claim, plaintiffs in New York have to prove, among other things, that the conduct in question is “extreme and outrageous.” Not the case here, claims lawyer Kevin Baine of Williams & Connolly LLP. “Even accepting as true the allegation that the Fox News article was a ‘sham,’…publication of a knowingly or recklessly false and defamatory statement of fact is neither extreme nor outrageous as a matter of New York law,” notes the defendants’ motion for dismissal.
Here, the Fox News defense veers into precedent, particularly Snyder v. Phelps. In that particular case, Albert Snyder sued Fred Phelps, founder of the Westboro Baptist Church, and church parishioners for their actions in picketing the funeral of his son, Lance Cpl. Matthew Snyder, who was killed in the line of duty in Iraq. Near the funeral service in Westminster, Md., the Westboro folks — famous for such protests — carried signs at the saying things such as, “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell” and “God Hates You.” Intentional infliction of emotional distress was among the tort claims advanced by Snyder, who was “unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it,” according to a court document.
The case had a long path through the legal system. A federal jury awarded Snyder a total of nearly $11 million in damages, though an appeals court agreed with Westboro that the signs were protected by the First Amendment. “The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric,” reads a summary of the ruling.
The Supreme Court also fell on the side of free expression. “While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import,” wrote Chief Justice John G. Roberts Jr. in the court’s 2011 opinion.
Lawyers for Fox News found a parallel with the Rich case. Since the Westboro protesters “addressed a matter of public concern, liability could not be imposed simply because the jury deemed the content of these messages ‘outrageous,'” argues the Fox News motion. By the same token, the Seth Rich story — whatever you think about its integrity — addresses a public matter.
The Fox News motion continues:
Although Plaintiffs assert that the Fox News article caused them pain, other readers might well consider their son to be a hero. Far from condemning Seth Rich for the purported leak, the Fox News article portrayed him as a whistleblower who released the DNC emails to expose that “top party officials conspired to stop Sen. Bernie Sanders of Vermont from becoming the party’s presidential nominee.”…Emphasizing the point, the article contained a photo of Rich in an American flag ensemble above the cutline: “Rich was fiercely patriotic, say family members.”…That readers could take markedly different views of Rich’s alleged leak underscores that Plaintiffs cannot satisfy the outrageousness element as a matter of law.
Remember, this is a legal document whose purpose is to get a client out of a jam. Yet take heed of the argument at hand. Seth Rich comes off as a hero to the Fox News faithful for betraying his employer and colleagues! Who would have predicted that Fox News’s penchant for bamboozling its audience would one day serve to buttress a clever instance of legalcraft?
Another rebuttal focuses on the Rich parents’ claim that Fox News “repeatedly discussed and referenced” the bogus Seth Rich story before its retraction and “continued to publish and publicize the sham story” following the retraction. Not so much, argues Fox News. “Plaintiffs point to only four statements postdating the retraction in which Fox News allegedly tied their son to WikiLeaks….But one of these was published on Sean Hannity’s radio show—which is neither produced nor distributed by Fox News (nor do Plaintiffs so allege)—and the remaining three were made by Fox guests,” notes the motion (italics in original). “A handful of desultory statements over a seven-month period by guest commentators hardly constitutes the type of sustained malicious conduct necessary to sustain an intentional infliction claim.”
Okay, but: Guests on cable TV are generally chosen because of their willingness to say certain things. Fox News — and its competitors — need to take responsibility for whatever is said on their air, whether it comes from the mouths of employees or stragglers. Nor does the Fox News pushback take into account how an investigative story from the network emboldens Internet conspiracists.
The balance of the Fox News motion addresses matters relating to the reportorial process — such as it was — and other claims cited in the complaint. It’s all very forceful — with its sky-high profits, Fox News can afford the finest legal talent. As the motion itself suggests — hey, our reporting may have been bad, but not that bad — it needs every bit of that talent.