Commentary
The business of cable news and commentary isn’t just business; it goes to the core of how the First Amendment operates in the 21st century.
Fox’s most popular primetime host, Tucker Carlson, was shown the door a week after Fox settled with Dominion Voting Systems for $787.5 million in a defamation suit.
Texts from Carlson, unearthed during discovery, revealed an on-air titan who apparently thought he could play as fast and loose as he liked, making assertions about the 2020 election he privately believed to be false, expressing loathing for Donald Trump while staunchly defending him before the cameras, and ripping apart Fox management, sometimes through use of misogynistic obscenities.
Anyone who has worked in any White House since the dawn of online communication, decades ago now, knows that you don’t converse about anything important or sensitive via email or any other means that can find its way onto a hard drive. Assuming the tape-recording systems that served Richard Nixon so poorly have not been reinstalled, you speak in person, because any investigation will ultimately discover your written strategizings and ruminations. The private sector, however, is obviously a slow learner in realizing that “loose texts cause wrecks.”
There were other problems with Carlson at Fox, not least his
attacks on what he calls “market capitalism.” He has criticized pro-family, pro-life social conservatives who “consider markets sacrosanct. The idea that families are being crushed by market forces seems never to occur to them. They refuse to consider it. Questioning markets feels like apostasy.”
Private equity firms perform the invaluable work-arounds of helping publicly traded companies survive crushing government over-regulation by converting them, often temporarily, into private companies through a complex legal process. The firms can then be fixed, frequently preventing bankruptcy and total loss of the many jobs they provide. But to Carlson, they “take over an existing company for a short period of time, cut costs by firing employees, run up the debt, extract the wealth, and move on, sometimes leaving retirees without their earned pensions.”
Carlson warned viewers that “libertarians are sure to call any deviation from market fundamentalism a form of socialism.” But Carlson, who in 2003 on CNN famously coaxed Britney Spears to express
support for the war in Iraq and George W. Bush, is almost always sure to call any deviation from the post-Iraq foreign policy non-interventionism he has come to embrace in latter years a form of the nation-building neoconservatism routinely propagated by ex-conservative MSNBC fixtures Bill Kristol, David Frum, and Max Boot. “Hubris, stupidity, the damaged psychological makeup of our leaders, massive lobbying campaigns by Ukrainian politicians and American defense contractors” are among the
reasons Carlson cites as being behind America helping Ukraine stave off Vladimir Putin’s invasion.
Boycotts of his Fox show by major advertisers, however, clearly had more to do with backlash from the left for the forceful stance Carlson took against illegal immigration, shared by other commentators throughout Fox, but advertisers’ hostility apparently hurt Fox financially because the smaller businesses who replaced them during Carlson’s airtime were reportedly being charged at a lower ad rate.
None of this, however, diminishes the fact that a lawsuit led to a leading press outlet silencing its most popular commentator after it shelled out more than three quarters of a billion dollars. And it brings into question the whole issue of punitive damages vis-a-vis free political expression. The criteria that apply to juries awarding what can be astronomical sums to injured parties include engaging in wanton conduct, intentional negligence, fraud, and malicious, oppressive, or reckless behavior. Deterrence is a major motivation in determining an award, and when a very wealthy corporation is the offender, mere compensatory damages are judged insufficient and punitive damages totaling many times the dollar amount of the actual damages suffered end up being imposed.
Americans have always had a strong sense of justice, and this has allowed our civil jurisprudence to become a kind of judgment seat of God on earth, with the extraction of money the means of imposing divine wrath.
In
State Farm Mutual Insurance Co. v. Campbell in 2003, a case involving a doubly fatal car accident, the U.S. Supreme Court was faced with a case in which the jury had settled on a punitive award 145 times greater than the compensatory damages—a total of $145 million. The case showed just how wild a jury can go if left unimpeded; playing God, indeed. In the wake of that case and others, the high court effectively limited legitimate punitive damages to less than 10 times the compensatory damages; but both the late justice Antonin Scalia and the late justice Ruth Bader Ginsburg, ideological opposites, forcefully dissented in favor of the federal judiciary leaving the remedy to elected state lawmakers. In
BMW of North America Inc. v. Gore in 1996, for example, Scalia’s dissent
argued that “since the Constitution does not make that concern [excessive awards] any of our business, the Court’s activities in this area are an unjustified incursion into the province of state governments … The Constitution provides no warrant for federalizing yet another aspect of our Nation’s legal culture (no matter how much in need of correction it may be) …”
Scalia also remarked, insightfully, that “punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved.” And who knows: had the Supreme Court stayed out of the matter, as Scalia and Ginsburg preferred, maybe elected lawmakers would have acted and passed laws preventing crazed amounts from being awarded. Then again, considering popular resentment toward large companies, maybe not.
The Supreme Court’s 2003
State Farm ruling, along with its less-than 10-x-1 limit, forbade consideration of a defendant’s assets to justify an excessive award. But in practical terms, how do you really prevent jurors of modest means from taking into consideration the vast sums an offending corporation possesses? As Ginsburg
noted in her dissent in
State Farm, “damages-capping legislation may be altogether fitting and proper.” Indeed, it may be the only solution, but legislators seldom cease fearing being accused of being in the pocket of big business.
Fox so feared what a jury might end up doing to it that it voluntarily agreed to play $787.5 million to a company valued at $226 million at the time of Fox’s alleged defamation in 2020. Tax deductions and insurance will, apparently, greatly
lessen the monetary blow for Fox, but it does not diminish the fact that lawyers were allowed to nose through the supposedly private conversations of opinion leaders at a major TV news outlet and use the information to muzzle Fox’s most watched host. Yes, in this case, the intentional falsehoods and reckless inaccuracies were hard to defend, but next time the bar may be found to be set lower.
The First Amendment is not as secure as it was.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
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