Critics of Fox News not-so-fondly call the cable channel "Faux News." But, according to an Internet meme, Fox not only admits it airs false news, it says it has a legal right to do so.
"Fox News admits they lie," reads one version of the meme, "They argued that, under the First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves."
The meme, which quotes a 2003 report in the now-defunct Chicago Media Watch, has circulated around the blogosphere, and the legal case it refers to was featured in documentary on the history of corporations.
A reader asked us to look into the claim that Fox News admits to lying and says that right is protected by the First Amendment.
What we found is that the claims centers around a lawsuit involving a Florida Fox-owned affiliate, not the national network or cable news channel. And that's not all that is wrong with what the meme.
The lawsuit the meme refers to involved two married reporters -- Jane Akre and Steve Wilson -- and their former employer, WTVT Channel 13, a Fox affiliate in Tampa, Fla.
In 1996, the husband-and-wife team began reporting on the use of Posilac, a synthetic growth hormone in Florida dairy cattle developed by Monsanto. After eight months of back and forth between the reporters and the station, the story never aired, and the reporters were fired in 1997. Akre and Wilson sued the station for breach of contract and retaliatory firing in 1998.
Why the reporters lost their jobs is the heart of the case. According to Akre and Wilson, WTVT caved to pressure from Fox corporate and Monsanto, and fired the pair when Akre threatened to take what Akre described as the station’s deliberate news distortion to the Federal Communications Commission. According to WTVT, the reporters submitted a biased and inaccurate report and were terminated after they refused to make the necessary edits.
In 2000, a Tampa jury ruled that WTVT did indeed retaliate against Akre and awarded her $425,000, the Tampa Bay Times (then the St. Petersburg Times) reported. WTVT then appealed the case. In 2003, the Florida Second District Court of Appeals reversed the ruling, arguing that Akre’s retaliation allegation did not hold water.
Whistleblowing in the dark
According to Akre, WTVT deliberately distorted news by airing a revised version of the Posilac story. That, Akre says, is prohibited under the false news provision. When Akre threatened to notify the FCC, the station fired her and breached the whistleblower statute that prohibits retaliation against employees who disclose an employer’s "violation of law, rule, or regulation."
The station denied repeatedly that it had tried to broadcast distorted news and said it wanted fair and balanced reports from Akre and Wilson. WTVT argued that the FCC’s news distortion policy is more a rule of thumb than a codified law, and thus not under the purview of the whistleblower statute. The appeals court agreed.
Stuart Benjamin, a professor of telecommunications at Duke University, said he doesn’t see anything in the legal documents that suggests WTVT admitted to any lies or distortion. Rather, the station argued, and the court agreed, that Akre failed to meet her burden of proof, according to Benjamin.
"If a statute prohibits me from hitting you only if I act with malice, and you say that I hit you but don’t establish malice, then I have a simple winning argument in court that you failed to show malice.That doesn’t mean I agree I hit you. It just means I have a winning argument that focuses on the absence of malice," he said.
Freedom of the press
Beyond what was in writing, Akre doesn’t remember WTVT admitting to lying and defending it as a legal right.
"I don’t think they said it just like that, but they basically said we can do what we want," Akre told PunditFact. "They kept saying ‘we have First Amendment rights,’ meaning they can operate with impunity and have the constitutional right to do so."
The First Amendment, as well as the Florida Constitution, "prohibits judicial review of Defendants’ news judgments and the exercise of editorial discretion, consistent with the guarantees of a free press," the station argued in its defense statement.
What this means is that the court shouldn’t judge the editing choices of WTVT, the station’s lawyer Patricia Anderson told The Weekly Planet.
Anderson invoked the First Amendment because it is dangerous for the courts and the FCC to become involved in disputes between members of the media and tread on either party’s freedom of press rights, according to Alison Steele, a media lawyer and Anderson's’ former law partner. (Steele currently represents the Tampa Bay Times, which operates PunditFact.)
Deni Elliott, a professor of media ethics at the University of South Florida, said that by invoking the First Amendment, Fox is suggesting that they are not accountable to anyone -- "not a reasonable stand for a news organization to take."
But to infer that WTVT used the First Amendment to defend news distortion and declare impunity is wrong. "That wasn’t ever their position," Steele said.
"There was never a factual or logical nexus established between the alleged crippling of the First Amendment and the firing of these two individuals," said Thomas McGowan, a media lawyer who was part of WTVT’s defense team.
Liane Casten, the reporter who wrote the the Chicago Media Watch article that originated the meme, said WTVT admitted to the false news allegations and defended it as a legal right during the trial, but could not recall the specifics. That position, however, is not corroborated by Akre.
Steele, who worked with WTVT’s attorney, said it’s possible lawyers conceded the point as a hypothetical. But it was never central to their legal argument, nor an admission in the sense Casten or the meme suggests.
"I can certainly imagine that in oral argument. The other side says, ‘If you did do this,’ and you respond, ‘If I did, it doesn’t matter.’ That’s just part of the refining and defining what the legal argument," she said. "This happens all the time, but it’s not an admission."
The Internet meme claims, "Fox admits they lie" and, under the First Amendment, "have the right to lie or deliberately distort news reports on public airwaves."
The claim doesn't track back to the national cable network most people know. Instead, it's rooted in a wrongful termination lawsuit between a Tampa Fox affiliate and two reporters. The heart of the suit was whether the Fox affiliate wrongly fired the reporters over a story about a synthetic growth hormone in Florida dairy cattle.
The reporters and the station disagreed about the accuracy of the story.
As part of the lawsuit, lawyers for the station argued that the courts do not have the right to play referee on story decisions -- citing the First Amendment.
We found no evidence that the Fox affiliate admitted that it lied about the news it ultimately presented, and we certainly found no evidence that Fox News as a whole admits it lies (in the present tense).
While the Fox affiliate argued that it has the right to present the news as it chooses, it’s quite a leap to suggest Fox as a television corporation defended some right to "distort news reports" -- other than in a hypothetical sense to quash a wrongful termination suit.
This meme wasn’t conjured out of thin air, but it’s not accurate. We rate it False.
Email interview with Stuart Benjamin, telecommunications law professor at Duke University, Sept. 8, 2014
Interview with Jane Akre, plaintiff, Sept. 8, 2014
Interview with Alison Steele, media lawyer, Sept. 9, 2014
Email interview with Deni Elliott, professor of media studies at the University of South Florida, Sept. 9, 2010
Interview with Thomas McGowan, media lawyer, Sept. 9, 2014
Interview with Liane Casten, former reporter for Chicago Media Watch, Sept. 4, 2014
Interview with Lynn Waddell, freelance reporter, Sept. 8, 2014
Project Censored, The Media Can Legally Lie, Spring 2003
Facebook, Fox Admits They Lie, Feb. 7, 2014
Daily Kos, Fox News admits they lie and distort the news, so why so pissy?, Oct. 25, 2009
IMDB, The Corporation, 2003
FoxBGHSuit, The Akre/Wilson Complaint, March 1998
FoxBGHSuit, Defendent Fox-TV (NEW WORLD COMMUNICATIONS) Response to the Complaint, 1998
The St. Petersburg Times, Reporter wins suit over firing, Aug. 19, 2000
FindLaw, NEW WORLD COMMUNICATIONS OF TAMPA INC WTVT TV v. AKRE, Feb. 14, 2003
Federal Communications Commission, Broadcast Programming: Law and Policy on Specific Kinds of Programming, July 2008
Federal Communications Commission, Whistleblower Protections under the Recovery Act, 2009
Court of Appeal of Florida, Second District, Case No. 2D01-529, Sept. 2001
Weekly Planet, Grazing A Stink, May 25, 1998
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