Fox News Conspiracy Machine
Media outlets are often accused of promulgating fake news these days. The Second Circuit case of Rich v. Fox News Network, LLC laid out what may be the most egregious example of actual fake news to date.
In 2016 a botched robbery led to the death of Seth Rich, a young Democratic National Committee staffer. After his death a group of fringe conspiracy theorists speculated that he had been responsible for the release of documents to WikiLeaks and that he had been killed in reprisal. A group of Fox News commentators wanted to run with the story, but they had a problem, there were no reliable sources to support the claim.
A Scheme to Manufacture Sources
Ed Butowsky, a guest commentator on Fox News, and Malia Zimmerman, a Fox News investigative reporter, used dummied up religious connections to ingratiate themselves into the Rich family. They convinced the Riches to retain Rod Wheeler, a private detective who was also on contract with Fox News, to investigate their son’s death. Butowsky even paid for Wheeler’s services, though the Riches were supposed to retain control over the release of information according to their contract with the sleuth.
However, the setup was simply intended to allow Fox to feed Wheeler unsupported quotes from anonymous sources so that when they repeated them in their news reports they could attribute them to the Rich family investigator.
The Rich family wasn’t happy with the comments Wheeler made, or the scheme they later uncovered and sued Fox, Zimmerman, and Butowsky alleging intentional infliction of emotional distress, tortious interference with contract, and negligent supervision or retention. The District Court dismissed the case because they said that the various actions taken were not individually extreme or outrageous.
The Mathematics of Outrage
The District Court dismissal reasoned that “zero times ten is still zero,” holding that since the various acts building up to Fox News’ report weren’t outrageous in themselves and couldn’t be aggregated to find extreme conduct. The Court of Appeals looked at the math a little differently, adding up all the actions to find a scheme that taken as a whole was extreme and outrageous.
The court also held that there was enough information to plausibly allege that Fox interfered with the contract between the Riches and Wheeler, and that even if the complaint didn’t satisfactorily allege negligent supervision over the Fox employees involved in the scheme it could probably be amended to cure any defects.
The dismissal of the case has been vacated and it will be remanded for further proceedings. Whether Fox News is held accountable for its promotion of fake news remains to be seen.
- Is There Liability for Publishing Fake News? (FindLaw’s Injured)
- Internet Fraud is Rising and Fake News is Adding to the Problem (FindLaw’s Technologist)
- What in the World Is ‘Weaponized Defamation’? (FindLaw’s Injured)
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