How a company like Fox can claim to be a news organization to publish lies with impunity

By John C. Watson, Associate Professor of Journalism, American University

Headlines in early March 2023 implied Fox News mogul Rupert Murdoch had made a damning confession. He had affirmed that some of his most important journalists were reporting that the 2020 presidential election was a fraud, even though they knew they were propagating a lie.

It was an admission during pretrial testimony in a libel lawsuit filed against Fox by a voting machine company that says it was defamed by the lie. For journalism practitioners and devotees, the admission should signal the end of the Fox News empire.

Nope. It didn’t.

Such a disgraceful demise would seem inevitable when journalists – professionally trained truth gatherers, employed by a news organization, which is an institution that exists to provide truthful information – choose not to do so.

Nope.

That’s because a business that calls itself a news organization actually does not have to be one – but it does have to be a business. Businesses exist primarily to make a profit and doing actual news isn’t essential. Adam Serwer, reporting for The Atlantic, wrote “sources at Fox told me to think of it not as a network per se, but as a profit machine.”

News businesses or profit machines can hire anybody who falls off a turnip truck and label them journalists because the job has no standardized requirements.

The U.S. Bureau of Labor Statistics lists “None” as requirements for work experience and on-the-job training for journalists but indicates a bachelor’s degree is typical. Accordingly, the Fox News business people could choose to spread election lies and insist, as court documents indicate, that it made good business sense to do so because much of their audience did not want the actual truth about that topic.

These are some of the troubling takeaways from Murdoch’s defense of his news business against a libel lawsuit filed by Dominion Voting Systems, the company implicated by Fox’s election fraud allegations. Fox essentially admits to publishing false information about Dominion, but argues it is nonetheless protected from liability. It is a defense grounded in the First Amendment, which protects press freedom so robustly that it also protects the irresponsible use of that freedom.

There’s lying … and there’s defamation

Murdoch’s admission was contained in court documents and was revealed in a New York Times story published on March 7, 2023. The story was about the US$1.6 billion libel lawsuit filed against Fox News by Dominion, the company Fox journalists repeatedly – and falsely – accused of rigging the 2020 presidential election to make sure Donald Trump lost.

Internal Fox communications, reported by the New York Times, revealed that network journalists and their news executive bosses knew the 2020 election was not fraudulent, yet continued to allow lies about the election – told by hosts and their guests – to be spread to the public.

Dominion claimed Fox’s audience recoiled when its journalists truthfully reported that Trump had lost the election. Dominion’s attorneys asserted that Fox feared the audience would switch their viewing allegiance to upstart conservative news organizations Newsmax and One America News.

In a March 31, 2023, ruling, the judge hearing the case cited examples of Fox’s internal communications that demonstrated how journalism values were supplanted by the language and values of business. Among them was this quote attributed to a Fox Corporation board member: “If ratings go down, revenue goes down.” The judge also referred to Dominion’s claim that Fox chose to publish the (false) statements to win back viewers.

Court documents show Dominion’s attorneys asked Murdoch: “What should the consequences be when Fox News executives knowingly allow lies to be broadcast?” Murdoch replied: “They should be reprimanded, maybe got rid of.”

That response aligns with principles widely touted by professional news organizations and established in the ethical practice of journalism. Although journalism scholars and practitioners vary in their definitions of what a news organization is and who can claim to be a journalist, there is firm agreement that reporting facts, or at least making a good faith effort to do so, is an indispensable mandate for both.

Yet Murdoch has not indicated an intention to discipline en masse Fox News employees who violated that ethical principle. Nor is he required to.

Even the Society of Professional Journalists, the nation’s foremost advocate for ethical journalism, rejects punishments for those who violate its principles. Its ethics code says in part: “The code is entirely voluntary. … It has no enforcement provisions or penalties for violations, and SPJ strongly discourages anyone from attempting to use it that way.” The organization concedes that news outlets can discipline their own journalists. Because journalists and their employers may be considered to be one entity, any disciplinary action is voluntary self-discipline. Neither journalists nor the news organizations they personify have to be truthful unless they want to.

Lying in the press is unethical but does not necessarily strip liars of the protections provided by the First Amendment. There is an exception to this: the defamatory lie, one that injures a person or organization’s reputation. That is what got Fox News sued.

Assumptions fall

Murdoch’s surprising statements were revealed in the lawsuit because his attorneys sought what’s called a “summary judgment” by the judge to decide the case without a trial, in order to avoid the prospect of facing a jury. That move makes sense given that some law scholars have found that juries rule against media defendants three times out of four.

By law, summary judgment is available only when the parties agree on the material facts of the case.

That meant Fox and Murdoch had to admit to Dominion’s most damning allegations, including confessing to broadcasting untrue statements and engaging in other unethical journalism practices. Even with those admissions, the First Amendment’s protection could still give Fox a chance to win the lawsuit – particularly if a jury did not hear the case.

Without reaching trial or a verdict, the Dominion Voting Systems v. Fox News lawsuit has already produced some unsettling results. It has challenged journalism disciples’ assumption that news organizations exist to provide the public with truthful information about the most important issues in their civic lives. It has shaken journalism’s faithful who assume that good journalism is never bad for the business of journalism.

Neither assumption is necessarily valid at Fox or anywhere. Anyone can claim to be a journalist, irrespective of their actual function. Any business can claim to be a news organization. Functioning irresponsibly in either role is largely protected by the First Amendment and is therefore optional.

Ethics imposed by independent state bar associations and state medical boards have made professional attorneys and physicians accountable by law as a means of ensuring responsible behavior in their roles, which are considered essential to society. Journalism ethics, which are news organization ethics, are wholly voluntary and can be set aside if they compromise profits.

But if the ethics violations are defamatory, a successful libel lawsuit can impose accountability with a financial cost – money damages.