Conservative news outlets, accused of election falsehoods, air disclaimers

[March 26, 2021]  By Helen Coster and Jan Wolfe

(Reuters) - Businessman Mike Lindell appeared on the cable network Newsmax last month and launched into a baseless conspiracy theory blaming a voting machine company for fraud in the 2020 presidential election.

After muting Lindell’s microphone, a Newsmax anchor told viewers that the My Pillow Inc founder’s claims were unsubstantiated and unverified. The anchor then read a prepared statement that included: “Newsmax accepts the (election) results as legal and final.”

Lindell, an ardent ally of losing presidential candidate Donald Trump, refused to drop the subject, and the anchor stormed off mid-interview.

The on-air reality check highlights a new trend in conservative media: In an apparent effort to minimize liability for defamation, Newsmax and some other outlets are relying on prepared disclaimers or additional pre-recorded programming to repudiate pro-Trump conspiracy theories spouted by guests and hosts.
 

Legal experts say this practice, also used in some form by One America News Network (OANN) and other conservative TV and radio networks, is a response to lawsuits recently filed or threatened by Dominion Voting Systems Inc and Smartmatic Inc, two election technology companies targeted by pro-Trump conspiracy theorists.

A Newsmax spokesman declined to comment. OANN did not respond to a request for comment.

The suits could test the effectiveness of disclaimers on news coverage more broadly, as well as the conservative media’s appetite for guests and hosts who make unsubstantiated claims about hot-button issues, legal experts say. The suits also pose an “existential threat” to the smaller networks, which can ill afford a big verdict or settlement, said Columbia University historian Nicole Hemmer, author of a book on conservative media.

Floyd Abrams, a prominent media lawyer and First Amendment advocate, said disclaimers could be modestly useful in bolstering the argument that the networks were “simply carrying the views” of Trump surrogates, rather than acting with malice toward Dominion and Smartmatic.

Big money is at stake. On Feb. 4, Smartmatic sued Fox News, parent company Fox Corp, former Trump lawyer Rudy Giuliani and others, claiming Smartmatic was falsely accused of rigging the election in favor of President Joe Biden. The voting systems company is seeking more than $2.7 billion in damages from the network and its hosts or guests.

Fox did not run disclaimers, taking a different approach. In the case of Smartmatic coverage, the network aired a three-minute taped interview of an expert who expressed skepticism about electoral fraud claims. The segment ran three times in December. It first aired days after Smartmatic demanded that Fox retract false statements made on its shows, and weeks after those statements were originally broadcast.

Fox did not retract anything. A Fox spokeswoman pointed to instances in November and December when the network reported on the lack of evidence behind the voter fraud allegations.
 

“If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election,” the network said last month after filing a motion to get the Smartmatic lawsuit dismissed.

In that filing, Fox said it had invited Smartmatic to appear on the network to address the allegations made by Trump’s surrogates, and that Smartmatic declined.

A Smartmatic attorney declined to comment on the invitation.

Dominion has filed defamation lawsuits against Trump allies, including Giuliani and Lindell, based in part on their statements on networks and social media. Dominion has not sued any network but the company’s legal counsel, Tom Clare, told Reuters “there will be additional lawsuits.” Dominion has formally advised social media networks to preserve posts and data from Fox, Newsmax, OANN, Trump and others, saying they are relevant to pending and forthcoming claims.

Giuliani did not return a request for comment but told Reuters in January that his comments about Dominion were constitutionally protected free speech. Lindell told Reuters he was “happy” that Dominion sued him, because it would allow him to seek evidence from the company. He said that he planned to countersue Dominion for trying to silence him.

As for the networks, Dominion counsel Clare and an attorney for Smartmatic said the disclaimers and counterarguments came too late.

They “cannot undo the damage to Dominion,” Clare said.

‘THEY’VE GOT TO WARN YOU ABOUT ME?’

When Giuliani hosted a show in February on conservative talk radio station WABC in New York, the station inserted a statement mid-broadcast that the host’s “views, assumptions and opinions” do not necessarily represent the opinions, beliefs or policies of the station, its owner, other WABC hosts or advertisers.

A Fox News channel sign is seen on a television vehicle outside the News Corporation building in New York City, in New York, U.S. November 8, 2017. REUTERS/Shannon Stapleton/

Giuliani, returning to the microphone after the disclaimer, appeared blindsided. “Rather insulting,” he said. “We’re in America. We’re not in East Germany. They’ve got to warn you about me?”

WABC did not respond to a request for comment.

New York media lawyer Ryan Cummings said disclaimers could help media outlets argue that their hosts and guests were presenting opinions, not news. Under U.S. law, opinion enjoys more legal protection than reporting that purports to assert facts. However, radio and cable news outlets generally don’t provide cues to make the distinction obvious to viewers.

Disclaimers could also help Newsmax and others argue that they were not acting recklessly, said Stanford Law School professor Robert Rabin. Under U.S. law, a false statement about a well-known person or company is deemed defamatory only if it is made with “actual malice” or a reckless disregard for the truth.

Fox, the conservative network with by far the greatest reach, took a different route with its pre-recorded interview titled “Closer Look at Claims About Smartmatic.”

The network first presented the skeptical expert’s views in December, five weeks after it originally aired the false claims about Smartmatic. The segment ran during the same shows on which the false statements originally were made.

The questions in the segment, voiced by an unidentified off-camera interviewer, were quick and to-the-point.

For instance, the interviewer asked, "Have you seen any evidence that Smartmatic software was used to flip votes anywhere in the U.S. in this election?" The voting technology expert, Eddie Perez, responded: ​“I have not seen any evidence that Smartmatic software was used to delete, change, alter anything related to vote tabulation.”

Perez told Reuters that Fox had been vague about the interview when it booked him, and did not say that the questions would be exclusively about Smartmatic. However, he said, Fox’s audience “needed to hear sober factual information.” The network had been “leading them astray for weeks,” Perez said.

“On the other hand,” he added, “I am not so naive to think that one five- to seven-minute piece that answers those questions would miraculously change minds.”

Smartmatic saw the taped interview as “an admission of guilt or an admission of liability on the part of Fox News,” said Smartmatic’s counsel, Erik Connolly. “And that’s how we have positioned it in our lawsuit.”

IS TRUMP IMMUNE?

As legally fraught as election fraud claims can be, the subject is enormously appealing to many pro-Trump viewers and voters. And conservative media continue to make Trump, the most powerful voice in the Republican Party, a focal point of their coverage.

Some media lawyers say the president - who led the way in making and spreading election fraud claims - may be in less legal peril than his surrogates and the conservative networks that cover him.

That’s partly because he made specific public claims about the companies only while he was still president: Sitting presidents are immune from suits related to their official acts, a protection that has been interpreted broadly by the courts. Rabin, the Stanford lawyer, said the protections are meant to ensure that high-level government officials can speak out and perform their responsibilities without fear of defamation suits.

Since leaving office, Trump has kept his remarks vague, not mentioning the election technology companies by name. “The broader or the vaguer the articulation of election fraud, the clearer it is that it will be protected by the First Amendment,” Abrams said.

Trump has not been personally sued by Smartmatic or Dominion. A senior Trump adviser did not respond to requests for comment.

By comparison, even if they issue disclaimers and keep their coverage vague, the networks are at risk for what already has been said on their news programs.

“There’s a certain irony in it,” Rabin said, referring to the contrast between Trump’s legal exposure and that of the media who cover him.

(Helen Coster reported from New York, Jan Wolfe from San Diego. Editing by Kenneth Li and Julie Marquis)

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