Not stating actual facts
David Folkenflik at NPR in September 2020:
Now comes the claim that you can’t expect to literally believe the words that come out of Carlson’s mouth. And that assertion is not coming from Carlson’s critics. It’s being made by a federal judge in the Southern District of New York and by Fox News’s own lawyers in defending Carlson against accusations of slander. It worked, by the way.
Just read U.S. District Judge Mary Kay Vyskocil’s opinion, leaning heavily on the arguments of Fox’s lawyers: The “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’ “
And yet he’s not a performer on Saturday Night Live, he’s a performer on Fox News. I think news programs are generally expected to refrain from “exaggeration” and “non-literal commentary” – aka lying.
Vyskocil, an appointee of President Trump’s, added, “Whether the Court frames Mr. Carlson’s statements as ‘exaggeration,’ ‘non-literal commentary,’ or simply bloviating for his audience, the conclusion remains the same — the statements are not actionable.”
So if you’re a really shameless and blatant liar, you get to slander people with impunity, even though the medium of your shameless blatant lying is a factual one.
H/t James Garnett
What a strange logic to apply to a broadcast. It seems standards of accuracy and integrity stop applying once a person becomes so inaccurate as to raise the question of their integrity. The need for restraint vanishes as soon as one would apply it.
This reminds me a bit of that scene in The People vs Larry Flynt where he’s being sued for defamation, and his courtroom defence is that what he printed was so obviously false and preposterous that nobody sane could entertain it for a moment, let alone believe it, and therefore it could not be defamatory.
To be fair, that’s how Rachel Maddow avoided a defamation suit:
https://variety.com/2020/biz/news/rachel-maddow-oan-defamation-dismissed-1234614682/
“A reasonable viewer would not actually think OAN is paid Russian propaganda, instead, he or she would follow the facts of the Daily Beast article; that OAN and Sputnik share a reporter and both pay this reporter to write articles,” Bashant wrote. “Anything beyond this is Maddow’s opinion or her exaggeration of the facts.”