Did Fox News win a court case for the right to lie?

Question

Project Censored have an 2010 article titled The Media Can Legally Lie:

In February 2003, a Florida Court of Appeals unanimously agreed with an assertion by FOX News that there is no rule against distorting or falsifying the news in the United States. [...] During their appeal, FOX asserted that there are no written rules against distorting news in the media. They argued that, under the First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves.

The reporter, as well as a number of other liberal sources also claim pretty much the same thing.

However, the Centre for Competitive Politics contests this claim:

Clearly, the story that FOX News got a court ruling in favor of its right to “lie” in its news broadcasts has become something of a talking point among the cable news channel’s detractors. There’s only one problem – the story as popularly told is completely false, and is based almost exclusively on hysteria, hyperbole, and half-truths.

There was indeed a lawsuit filed by journalists Jane Akre and Steve Wilson over their dismissal from FOX affiliate WTVT in Tampa, Florida. After that fact, however, the story is far different than how it is popularly portrayed.

Snopes also rejects this claim but its main reasons were that:

1. The TV channel involved in the suit was not the main Fox News channel, but an affiliate . (IMO, this is a cop-out.)

2. The issue at hand was not day-to-day programming, but a special episode involving Monsanto and bovine growth hormone (which seemed to be irrelevant to the question at hand.)

3. Fox News did not invoke First Amendment for its right to lie (which was not asserted by the claims.)

However, it did not cover the issue on whether Fox News won the second lawsuit, or if it even involved "the right to lie". In an example of a poor answer from Snopes, their quotation was not relevant to their claim that Fox News did not win the second lawsuit on "the right to lie".

Snopes also links to the 2003 judgment, which reversed the 1998 award. However, I was unable to fully understand the legalese behind this judgment, nor was I able to find a source which clears this up properly.

Being uninitiated in American politics, which article(s) is/are more valid?

Answer 1

No, pretty much every part of that statement is false:

TL;DR

• "Fox News" wasn't involved in this case in the first place.

• The 2003 court case being cited (an appeal) was not about the "right to lie".

  It was about the right to not pay whistleblower protection money which are independent of the wrongdoing, over accusations of distorting news.

  In other words, before the legal win, the station had to pay whistleblower protection money independently of whether the "lie" accusation had any merit whatsoever - merely on the strength of whistleblower making the accusation.

  After the win, that whistleblower award was removed, because FCC's "don't lie" rule didn't qualify under things that one can blow the whistle on and be protected.

  However, the court did NOT say anything about the right (or the absence thereof), to lie on the part of news organization.

  Merely on the right of an employee to get paid if you accuse someone of lying while being employed by them; and be protected from firing over that accusation.

• Independently of that court case win, the FCC determined that the station wasn't lying in the first place, so the original accusations of "lying" were baseless. So did the lower court, in 2000, where all of the "lie" claims were rejected.

In detail

1. Fox News wasn't even involved in the first place. The case involved WTVT, which was a Fox Network Affiliate station. In other words, they shared a parent corporate entity, but were two completely different companies (and, less importantly, prior to January 1997 wasn't even owned by Fox).

   I can equally make the case that it was Simpsons that "won the court case". Or for that matter, that Star Wars did.

   Now, whether that matters or not is a matter of subjective opinion. Strictly speaking, the claim as usually formulated is wrong because the people making the statements very clearly and purposefully are trying to tie in Fox News channel to the story, by using "Fox News" term instead of "Fox affiliate" or "Fox Entertainment".

But the rest of the claim is 100% false as well.

2. The legal case is very clearly delineated on Wikipedia.

   • 100% of claims by Wilson and almost all by Akre were rejected by the court outright in original 2000 hearing. The rejection specifically included 100% of their claims that WTVT "lied".

   • One claim by Akre was sustained, but importantly, it was a very, very legally specific claim (note the emphasized part):

     [...] but siding with one aspect of Akre's complaint, awarding her $425,000 and agreeing that Akre was a whistleblower because she believed there were violations of the Communications Act of 1934 and because she planned on reporting the station to the Federal Communications Commission. Reason magazine, referring to the case, noted that Akre's argument in the trial was that Akre and Wilson believed news distortion occurred, but that they did not have to prove this was the case.

     In other words, the court did NOT rule that WTVT had the "right to lie" - they ruled that although the claimants did not provide evidence that WTVT lied in the first place, they were not required to provide such proof to get whistle-blower protection. IOW, the claim was awarded regardless of what WTVT did or didn't do.

   • Then even that last claim by Akre was overturned in 2003 appeal (and what the usual Fox News bashing statement refers to). Again, the claim that was overturned on appeal very specifically was NOT related to whether WTVT lied, but merely the fact that Akre only had to believe that they lied, without proving it.

     [...] WTVT, who successfully argued that the FCC policy against falsification was not a "law, rule, or regulation", and so the whistle-blower law did not qualify as the required "law, rule, or regulation" under section 448.102 [...] Because the FCC's news distortion policy is not a "law, rule, or regulation" under section 448.102, Akre has failed to state a claim under the whistle-blower's statute."

     To simplify the legalese, the 2003 ruling wasn't that "WTVT had the right to lie": it was that Akre had no right to whistle-blower protection, because there was no law to violate, to whistle-blow about.

     Moreover, as Snopes put it, even FCC conclusively indicated there was no lying on the network's part:

     Ultimately, the FCC concluded in 2007 that the conflict between Akre and Wilson and the affiliate boiled down to an "editorial dispute ... rather than a deliberate effort by WTVT to distort news."

3. Now, in the interests of fairness, in the USA, under First Amendment protection, there's a pretty wide latitude as far as news sources' ability to lie, so the actual statement "there is a right to lie" is not fully inaccurate.

   However, that is a topic which had nothing to do with the court case being discussed.

   The court did find that FEC news distortion policy is not a "law, rule, or regulation" under the whistle-blower laws. But:

   • it did not establish a general law about "right to lie", outside of whistle blower protection arena under Florida Law, based on the wording. It merely stated that the specific FCC policy wasn't a law, for the purposes of 448.102.

   • it didn't say that the policy is invalid, or can't be applied to the station if the station indeed was found to be distorting the news or lying.

   • And the ruling very specifically did not in any way imply that WTVT lied in the first place. Which was further reinforced in light of FCC's 2007 ruling.

4. Now, if one wants to make an accurate claim, and protest news distortion, the court case's outcome did make it theoretically harder to find out about lying in the future, by making people potentially less willing to report lying to FCC due to the fact that doing so would NOT protect them as whistleblowers.

5. As a side note, at the risk of falling into a Poisoning the well fallacy, we also need to consider the trustworthiness of the original source. Apparently, Wilson does have a pattern of accusing people of wrongdoing with no proof as part of his "journalism":

   ... a report by Wilson resulted in an FCC challenge to WXYZ's license. Wilson had reported that a group of Michigan business and political leaders had consorted with underage prostitutes in Costa Rica. But the reporter admitted on air that "we have no proof" that the named Michigan men had engaged in illicit behavior ... (source)

6. As another side note (also not very relevant to the case being examined), the original reporting in question concerned the "dangers" of rBGH and was basically an environmentalist-based anti-Monsanto hit piece, contradicted by scientific evidence. So the underlying truthfulness of the two sides of the dispute that led to this is VERY much in question and not as clear cut as the claims imply.

   I'm not an expert, but a (seemingly-neutral) source I was able to find - cancer.org - states that rBGH isn't exactly as bad as one would believe from the reporting in question:

   It is not clear that drinking milk produced using rBGH significantly increases IGF-1 levels in humans or adds to the risk of developing cancer {{note: one point omitted in the summary is that drinking soy milk increases IGF-1 as well, so causality with rBGH is suspect}}. More research is needed to help better address these concerns.

   The increased use of antibiotics to treat rBGH-induced mastitis does promote the development of antibiotic-resistant bacteria, but the extent to which these are transmitted to humans is unclear.

   Wikipedia notes:

   The Food and Drug Administration,[9] World Health Organization,4 and National Institutes of Health[10] have independently stated that dairy products and meat from BST-treated cows are safe for human consumption.

   FDA is specifically quoted as:

   FDA rBST labeling guidelines state, "FDA is concerned that the term 'rbST free' may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading"

Answer 2

Regarding Akre and Wilson v. WTVT 2003.

1) (a) The two reporters DID NOT claim that the news outlet WTVT, the Tampa affiliate of the FOX News Network, "lied." They claimed a violation of FCC "news distortion policy" which has never been published in the Federal Register and never been codified as a regulation with definitive elements and defenses. (b) FCC did articulate a position several times beginning with "[a] licensee would be abusing his position as a public trustee of these important means of mass communications were he to withhold from expression over his facilities relevant news of facts concerning a controversy or to slant or distort the news” in 1949. Followed by clarification that the agency would, for license issuance purposes, "take into consideration proven instances of 'deliberate news distortion,' also called 'intentional falsification of the news' or 'rigging or slanting the news."

2) (a) They had also sought whistle-blower protection status which was denied due to the wording of FL state law § 448.102. The defense for WTVT was based their denial of applicability of FCC policy on a FL law § 120.54 on whistle-blower protection requirements that a policy (in this case FCC's) be formally "adopted." (b) This defense is odd since their status as whistle-blowers was denied. (c) There was NO attempt throughout the series of cases to claim that the station DID NOT intend to deliberately distort or falsify the news. (d) The defense simply proved that there was no official “law, rule, or regulation” at FCC preventing that. (e) Since appeals took the case into Federal courts (but based on FL law), the final decision stands as U.S. "case law" benefiting FOX (and any other news outlet peddling distortion), making it extremely unlikely that anyone else will challenge the decision.

The FL legislature followed up and locked up any loopholes that might expose corporations further, through § 448.101(4)

3) (a) The reporters also claimed retaliation (through their firing and threats made) by the TV station, over their resistance to the station's blocking a 1997 story [exposing the extent of Monsanto rBGH use in FL dairy and the tactics used to pressure the farmers]. Akre won this element of the case, through a series of appeals, resulting in a $425,000 judgement. (b) Actions of retaliation against the reporters began again in 2002 during the appeals process through 2004 after the publication of Into the buzzsaw: leading journalists expose the myth of a free press which highlighted the steep price paid by journalists that attempt to report stories that reflect badly on powerful institutions. (c) It is unclear what motivated the main antagonists John Sugg and News Blues to attack the couple.

4) (a) While it was the local FOX affiliate station being sued, it was FOX Group Legal Department (Los Angeles) that provided and paid for their defense. Clearly, the national network felt that this case represented the network's interests. (b) There is ample evidence connecting FOX Group to this case. They requested the firing of the news director and general manager at WTVT. The plaintiffs were to pay FOX Group attorney's fees. (c) National news stories portrayed the 'sale' of that station to FOX. (d) Ergo, the various decisions and appeals apply to FOX.

The FCC currently has a provision against "News Distortion"