Liar, Liar, Network on Fire: The Legal Case Against Fox News

Liar, Liar, Network on Fire: The Legal Case Against Fox News

Ep. 227 Final Transcript

Jon: Boy, you know, when you’ve spent your life screaming at Fox News in bars and hotels and your house. And, and then the emails finally come out [JON LAUGHS] that say, “Oh yeah, everything you thought about them is worse than you thought.” Uh, we’re gonna be talking about Dominion Voting System versus Fox News. The defamation trial that shows you, in the words of the great Dennis Green. They are what we thought they are, which is the worst.

[INTRO MUSIC]

Jon: Hey everybody, welcome to this week’s podcast. The Problem with me, Jon Stewart, you know me as, the problem. Don’t forget to watch the Apple TV+ show, more episodes are coming. Uh, we’re gonna catch up this week on, this Dominion lawsuit against Fox News. The computer company, I guess, that runs a lot of these voting machines. And, the right was pointing at them as being, I think at first Sidney Powell was suggesting that it started in Venezuela and that the Italians, were in, in Italy they were changing the votes through a Chinese satellite. I mean, the whole thing was just utterly bizarre, that it had been created to sway things. Fox News Corp let these folks come on the air and run with this monstrosity of a lie. And that was the genesis I think of the suit. We’re also gonna talk to Jay Jurden and Robby Slowik. Our writers.

Robby: Hey everybody!

Jon: What is up kids?

Jay: Nothing much. Kind of dealing with the fall out of what you just described and looking at Twitter after that.

Jon: Looking at Twitter after the Fox case.

Jay: Yes. And seeing if they’re gonna talk about it at all. I come through Fox News and Tucker Carlson’s tweets, and I do wanna say up top, I didn’t see a single Happy Black History Month tweet. [ROBBY LAUGHS]

Jon: Are you serious, Jay?

Jay: Not a one.

Jon: Let me tell you something. It’s an oversight and here’s why. Because he believes every month is Black History Month. And he believes that why separate it out when that’s how he lives his credo.

Jay: Yeah.

Robby: Behind the scenes, all the producers are talking about Black History Month.

Jon: You know what, Happy Black History Year. [JAY LAUGHS] You know, you’re gonna, you’re gonna get the emails he’s sending to Hannity. “Why the f*** are you not talking about Black History, Hannity? We’re gonna lose our audience.” [LAUGHTER]

Jon: “They’re gonna shift over to BET, this is serious, look at our stock price. This is terrible.” [JAY LAUGHS]

Jay: It is funny to see what he has promoted in the sense, there was like, he had like seven days ago where he was talking about the balloon, and now it’s just all his upcoming Fox Nation special on the death of comedy.

Jon: Yes.

Jay: And two days ago… right back to gender.

Jon: Yes.

Jay: Right back to gender.

Jon: Well, they’re gonna go right back to what they do, which is send the emails about we’re gonna use gender as a wedge issue. I mean, what it reveals is the thing that we have been screaming about for two decades, which is this is a purposeful strategy to divide the country and gain political power through fear and lies and whatever the f*** else it would take.

Jon: Uh, we’ve known about this. Listen, man, I sat in Roger Ailes’ office. For an hour.

Jay: Well Jon, I wanna know how he short was your skirt…

Jon: Oh, it was a short baby.

Jay: OK. [ROBBY LAUGHS]

Jon: He said, “Uh, just, just turned around there. [LAUGHTER] Oh, oh, oh, oh. You are circumcised. All right, fair enough.” Uh, and this is what the argument was for a year, which is you are a cynical bastard, who is doing everything he can to destroy any legitimate criticism that might be leveled against Republicans or conservatives.

Jon: Not in an effort to win a debate, but to destroy any obstacles that are in your way to consolidate power. And that is it. Full stop.

Jay: It’s just wild to watch. Cause terrible, terrible journalism. Amazing Netflix series. You know what I mean? That’s what this feels like. 

Jon: It’s narratives. It’s narratives.

Jay: Yes! This is truly a soap opera.

Jon: Right, right.

Robby: Yeah. And the level of projection around them every single day around all of this type of stuff, the fact that they dedicate hours of airtime to, you know, “George Soros is a foreign billionaire trying to influence our politics,” [LAUGHTER] and then their inbox is flooded with emails from a foreign billionaire being like, “You need to do a better job influencing our politics.”

Jon: Yes. That’s, well, that’s the key. He’s not, their problem with Soros is how ineffective he is. But by the way, it’s not just media. This is part of a multi-pronged strategy. If you notice what happened on the right is any of the institutions in America, and by the way, this is not to say that there is an unbelievably legitimate criticisms of colleges, media, newspapers. There is absolutely, huge swaths where those institutions fall down, fail, need to be improved. But their strategy was we will devalue them, we will de authorize them, and then we will build parallel structures, parallel college institutions, parallel think tanks, parallel news organizations. And rather than use them to properly promote a conservative versus liberal debate, we will skew reality and create and, it’s “The Last of Us.” Let’s create an army of zombies and —

Robby: Mm-hmm.

Jon: — and the cordyceps is the fear and disinformation and misinformation. I mean, it’s, it’s f***ing amazing.

Robby: It’s just so deeply effective as well. I mean, they’ve really, like everyone is fighting for a very small sliver of the population where they get to create whatever reality they want with that sliver of the population.

Jon: Well, what you hope is, and this is my only hope, is that finally other institutions that are meant to, earn authority by being correct or being smart will finally go, “Oh, f*** off.” And will no longer say, “Oh, we’re not getting the Right’s viewpoint enough on our network anymore.” When they realize that that’s not the Right’s viewpoint, that’s the strategic viewpoint that they employ to gain power. It has nothing to do with right or wrong. It has nothing to do with conservative versus liberal. It has everything to do with consolidating power by any means necessary, and they have so worked the refs in the media atmosphere that they’re scared s***less. People at, you know, the networks and the other cable networks are scared s***less. Listen to the nonsense they spew. “We want to get back to objective news reporting and call it balls and strikes and all that.” Shut the f*** up and tell us what’s going on for real and be confident about it and don’t back off, because you’re getting calls from Rupert Murdoch, or that there is a giant audience of Fox News zombies that are calling you out for not putting lies on the air. Have some f***ing balls!

Jay: That’s the biggest thing that changed over the past seven, eight years, is you saw CNN and, and ABC and NBC have to be like, “Well I —, well, I guess. We have to talk about this.”

Jon: Mm-hmm

Jay: And everyone was like, “You don’t have to.” And they’re like, “No, we have to give a couple of hours. We have to let Rick Santorum be like, ‘This is why gay people are icky.’” Like it was — there was just so many moments where I’d be like watching, “I’d be like, y’all don’t have to do this.”

Jon: Right.

Jay: You want to.

Jon: Right.

Robby: And they’ve so effectively crafted that narrative that every people just say the liberal New York Times in their head.

Jon: Mm-hmm. [JAY LAUGHS]

Robby: And then you flip through the New York Times, it’s like, “Do we need four more wars in the Middle East?”

Jon: Right

Robby: “Are trans people human beings?” And you’re like —

Jon: Right, right.

Robby: —there’s nothing liberal about this paper.

Jay: That is the most fun I’ve been having. Is that like what, five years ago Donald Trump would’ve been like, “The New York Times is a s*** rag.” And now today all of my friends with septum piercings are like, “We agree.” [JON LAUGHS] “We agree. Thank you Don, for standing up for them.”

Jon: No question. And it is that, because the weird thing is on the Right, they have the confidence of their convictions, what they believe is the worldview. And in some ways it’s why they’ve aligned themselves with Russia and Putin, which is western civilization, is under attack. And, America is weakening itself by being diverse and not being Christian enough. And so they’ve devised this strategy that they employ in all other areas. And it is a strategy and it is purposeful and it is, absolutely, in no way a truthful, it’s just creating these sort of Potemkin institutions that exist not to create information that helps their cause, but to create strategies that rile up their audiences.

Jon: They’re looking for followers.

Jay: It’s so funny because two days ago Tucker Carlson and was like, “Joe Biden hates straight white men.” And I was like, “You mean that old straight white man hates old straight white people? I don’t think that’s the case.” We’re like, “Nah, cuz you know who pulling the strings.” They said diversity. They had a picture of Susan Rice up there. It’s just so weird to see them go, “So we have an argument, how do we find the science and the numbers to justify this cultural argument?”

Jon: They don’t need to. And all they’ll do is say that, you know, liberal media is facing a credibility crisis. I honestly, my biggest hope here is that they can no longer look you in the eye when they’re saying they’re bulls***. I still think they will, because —

Robby: Oh yeah.

Jon: — one of their greatest strengths is lack of shame. And that lack of shame allows them to continue this charade. I mean it’s, it’s, imagine it’s like this. You’re in the Wizard of Oz. You’ve gone through all the trials, the monkeys have flown through. You’ve finally gotten to the wizard, and they look behind the curtain and they find the wizard. The wizard — you finally realize this whole thing is being orchestrated and you bust him on it, and then he turns and goes, “Uh, no, no, no. That’s not, that wasn’t me. That’s not —” That’s what they’ll do there. There will be no self-awareness. There will be no, you got me. There will be a doubling down that, “Oh no. Uh, this is out of context and we’re not lying and there’s not anything.” You pull back the curtain and the wizard just goes like, “Yeah, who was saying all that s***?” That’s, that’s you. [JAY LAUGHS] Here’s your problem. You don’t have a heart and you don’t have a brain and you don’t have courage.

Jay: Whoa. Okay.

Robby: We have a collection of these busted moments already. You know, when they said in court that no reasonable person would believe that Tucker Carlson is stating facts as a defense, which would be a good defense if there was a law in this country that you had to be a reasonable person to vote. But that’s not the rules, you know?

Jay: How can the legal argument be the same as your worst friend from college? “Whoa. Okay. You’d have to be stupid to actually think that. You’d have to be dumb.” 

Jon: What if they just — What if they just go into court and they go like, “Uh, your Honor, I’m sorry, my news organization was really drunk.” [LAUGHTER]

Robby: Yeah.

Jon: “My, my news organization didn’t mean anything by that. And listen, hey, let’s just all go peacefully here. I’m telling you, man, it’ll never happen again. I got ’em. I’m gonna drive him home.”

Jay: Yeah, yeah, yeah.

Jon: “You don’t have to worry about this news organization ever again.”

Robby: “Your Honor. I can’t for the fans. I can’t break Kayfabe. You know, I’ve gotta —” [JAY LAUGHS]

Jon: That’s what it is…

Robby: “— I have to stay in character all the time.”

Jon: By the way. That is boy, you couldn’t be dead on. For those who are fans of wrestling, that is exactly what it is. It is, a nudge, wink, wink, little world that they’ve created where they all had to hold onto it. But, our next guest actually has the less emotional, more legal, arguments about this case.

Jon: So I’m gonna go to her, right now. She’s the Lee E. Teitelbaum Professor of Law at the University of Utah and an affiliated fellow at the Yale Law School Information Society Project. Professor RonNell Andersen Jones is gonna be joining us.

[TRANSITION MUSIC]

Interview with RonNell Andersen Jones Begins

Jon: So to give us, lay folk — that’s what you call the, those that are not in the professional realm here, about what is going on with the, not just the cynical nature of this, organization that claims to be a news organization, but the legal ramifications if there are any legal ramifications. We’re going to welcome an expert in this, RonNell Andersen Jones. Thank you so much for joining us today, to discuss this Dominion lawsuit, against Fox News.

RonNell: Sure. Happy to be here.

Jon: Now I am not a big city lawyer. I’m just a simple man, but, it seems to me that if you purposefully lie consistently, and you understand that you are lying. Now, I don’t know, the legal term, malice of forethought or, malicious or any of those things. There should be some ramifications to purposeful lying. 

RonNell: There are, and, not withstanding your lack of big city lawyer status, it turns out that you’ve summarized it pretty well. 

Jon: Yes!

RonNell: Uh, we, we have, purposefully importantly for Constitutional reasons, very high bar in this situation. Uh, we don’t want it to be particularly easy to sue for defamation, particularly on matters of public concern. And when, the folks that are bringing the suit are public figures or public officials. And in fact, I and others who work in this space spent a lot of the Trump era, emphasizing this. You might remember that then candidate Trump in 2015, um —

Jon: Mm-hmm.

RonNell: —famously said he wanted to sort of, his words were “open up” libel law, make it really easy, for folks like him to be able to threaten and bring suit—

Jon: Mmm-hmm.

RonNell: —um, against critics.

Jon: Wait, wait, wait. Are you suggesting that the right in this country is being hoisted on their own petard? [RONNELL LAUGHS] 

RonNell: There is—

Jon: And that they’re wearing petards? Is that what you are suggesting?

RonNell: —there is definitely a gap between what Trump has advocated should be the ease with which somebody can bring a defamation suit and the ease with which Fox would like there to be a defamation suit in this setting. And we, we do know that, Constitutionally, the Supreme Court has made clear in a case called New York Times v. Sullivan, that for First Amendment purposes, for purposes of, preserving vibrant, open debate on matters of public concern, and also for democracy preservation purposes, making clear that public officials, and public figures can’t weaponize defamation law to try to silence their critics or tamp down dissent. We want it to be really, really hard to bring these sorts of suits. And so the standard is a standard called the actual malice standard.

Jon: Actual, actual malice…

RonNell: Actual malice, yes.

Jon: Not just sort of malice…

RoNell: Actual.

Jon: Actual malice.

RonNell: It’s really a funny term to use because it doesn’t, it means neither actual nor malice.

Jon: What?!

RonNell: Uh, it means, It means knowing falsity. Or at least reckless disregard for the truth. And the idea is that journalists and other speakers and commentators are sometimes going to talk about matters of public concern in ways that aren’t perfectly careful, that are a little bit sloppy, that lies, and falsehoods are sometimes going to make their way into public discourse. And we’re gonna counter them in a wide variety of ways.

Jon: But it may be inadvertent, it may be —

 RonNell: That’s right.

Jon: —something that occurs, but is not necessarily, done with a forethought because I’m, I’m gonna start using legalese forethought, which is like a forethought with the letter A in front of it. Uh, now so this standard of actual malice, this is what’s been established by New York Times v. Sullivan, and the actual malice is that, you have to knowingly be repeating or allowing falsehoods. Uh, and so if I’m reading the text messages, they’re saying, there are many from the Fox News hosts, which say things like, “these people that we are putting on the air are f***ing crazy. They are lying.” Uh, the one Fox News reporter, believe her name is Jacqui Henrich, she reported that these election lies were not true, and they were texting back and forth, “you must fire this person.”

RonNell: Yes.

Jon: Again, in terms of the types of things you’ve seen in your long history studying these types. How blatant is the disregard for truth and standards in this case?

RonNell: So this is far and away the most, evidentiary supported claim of actual malice that I’ve seen in a major media case. we should note that these cases almost never get to this stage. Uh, they —

Jon: They settle, usually.

RonNell: They settle and in fact they often settle, because they are so hard, to prove, right. Uh, the actual malice standard is so, so difficult to achieve. when it is proven —

Jon: Mm-hmm.

RonNell: It’s often not knowing falsity. Instead, it’s this sort of, body of circumstantial evidence of, you know, that they should have known, right? Uh, they sh— they had a high degree of subjective —

Jon: I see.

RonNell: — uh, sort of probable awareness. So we’re piecing together in a lot of those cases.

Jon: This is not that.

RonNell: But this is not that. This is direct evidence of knowing falsity. There’s a famous case that I teach to my students where the Supreme Court says, essentially, “it will almost never be the case that you’ll be able to prove this up, sort of out of the horse’s mouth,” right? Uh, the likelihood that you will find evidence of them saying, “we know this is a lie and we would like to move forward with it anyway,” is, is deeply unlikely. And, here, there is, this filing contains just this trove of evidence of, emails and text messages and —

Jon: Mm-hmm.

RonNell: Internal memos. Both, it’s rare both as to the volume of the evidence, and as to the directness of the evidence, and also as to the sort of, sub current, the narrative of the motivation of, of, this gravitational pull that we seem to see.

Jon: This even gives motivation though. This is when you talk about the explicitness, when you’ve got Rupert Murdoch, who is the owner, head de facto emperor of Fox News Corp, explicitly stating to the president of Fox News, “we must do what we can to help Republicans,” and this is later “gain control of the Senate”, we’re in such different area here as far as, forget about even just the actual malice of allowing the lies on the air. We have a propaganda arm for a political movement that is operating with impunity. I mean, I don’t even know where to start with this.

RonNell: I mean, I think one of the things that’s really interesting about this filing is that sort of a very important part of the narrative arc of dominions filing here.

Jon: Mm-hmm.

RonNell: Is this, sort of sub current about the deep interrelationship between, Fox News and the Trump administration and the sort of key players in both spaces advising, seeking feedback from fearing, um —

Jon: Mm-hmm.

RonNell: —wanting —

Jon: Mm-hmm.

RonNell: — uh, to coordinate with. And, the narrative that has been woven in this filing is really interesting because, a piece of what the lawyers for Dominion are essentially suggesting is that a lot of what Fox News and the Trump administration have been saying in their sort of “enemy of the people” framing right. Uh, their, um —

Jon: Mm-hmm.

RonNell: — uh, fairly consistent attacks. on the mainstream media as being, elites, who engage as political operatives and, um,

Jon: That’s right.

RonNell: mouth pieces of a political party.

Jon: The very thing that they are doing

RonNell: And the filing here strongly suggests that that’s the sort of dominant model at Fox News. And they tie this in, to, make their case about actual malice, to suggest that they were motivated to sort of keep this audience share that was gravitating at Trump’s suggestion.

Jon: Mm-hmm.

RonNell: Uh, to Newsmax and other organizations that were more willing to engage these election denialism, claims, and sort of wanting to preserve them.

Jon: They got primaried, they got, they got primaried by the right, [RONNELL LAUGHS] by trying to hold to a certain amount of truth. But these feel like two separate issues here. One is, you know, we can deal with this from the Trump administration aspect of it and the fact that, Fox News is nervous about their business model. But there was a larger point here. Which is, Roger Ailes began this network as a way to deflect criticism and any kind of, factual attacks on the conservative movement. This was, this was created purposefully not to engage in a fact-based, more conservative worldview that would seek to, illuminate and articulate various points of view from the more, William Buckley side of, of the aisle. This was done explicitly with the purpose of devaluing legitimate criticism, attacking any kind of threat that the conservative right may have found. This is not in any way, something that, that, I mean, legally, I don’t know that you could ever do anything about it other than this part about, you know, actual malice and knowing that they were lying. But they’ve known they were lying from the get-go, from jump, from the minute they came on the air they’ve known. It’s not, it’s the feature of the network. Not only do they understand that they’re lying, they have to lie because they have to lie not just to keep the audience, but to keep this movement in power. And that’s the larger question.

RonNell: That’s right. And I think it’s the complexity that we see about, the use of defamation law as a tool to remedy, large scale, societal falsehoods, right? Which is, what we’re trying to do here and what, um —

Jon: A propaganda outfit.

RonNell: This is not the only defamation case surrounding the so-called Big Lie, right? Oh, there are, there’s another voting machine company, that is, bringing a defamation suit. There are separate defamation claims against Sidney Powell and against Rudy Giuliani. And one big question that we have here, I mean, defamation law is designed to do a smattering of things. I mean, one thing that it is definitely designed to do is sort of pay damages for harm done, right?

Jon: Mm-hmm.

RonNell: Dominion here says, “You ruined our reputation and you owe us for that.” But another goal that Defamation Law has is a sort of broader remedial goal, which is to sort of fix the lie in the public space, where sort of set the record straight and have a judicial declaration of the truth.

Jon: Mm-hmm.

RonNell: And one thing that is, sort of getting much less attention than sort of, Fox knew, and when it knew it, is the sort of portion of this brief that Dominion has to prove falsity. And so there’s a huge segment of this brief that sort of, makes its way carefully through, disabusing, some of the falsehoods that we’re told here, really, declaring a judicial record about what really is the truth about these voting companies and about the election, um —

Jon: Oh wow, ok.

RonNell: — integrity. And so, we have this sort of separate thing happening here, but one of the pieces that’s tricky about it is that that remedial role really presupposes truth seekers on the other side of it. And so if what we have are media consumers in America who are consuming media not to seek truth, but rather to sort of reaffirm their own cultural —

Jon: Mm-hmm.

RONELL: —or political identities —

Jon: Right.

RonNell: —or, to stay in a comfort zone that doesn’t require them to credit any facts that conflict with their preconceived notions of the world.

Jon: Mm-hmm.

RonNell: Then it’s harder to think about the capacity of defamation law to dislodge those falsehoods.

Jon: Are you suggesting in some ways, professor, that the Fox News viewer might be a snowflake? Are you suggesting that they are so fragile that if they were to be presented with facts that are counter to the worldview, the conspiratorial worldview that they have about power elites seeking to keep the conservative, and right wing movement down, that they would fall apart or at the very least go to OAN? I mean, what it brings up is the entire worldview that they broadcast is utterly upside down. It reminds me of, you know, years ago I had a friend of mine who was a journalist who was arrested in Iran and he was sent to Evin Prison. And the charge was that he was a spy and that he was through his, through the auspices of working at Newsweek, was actually sent to destabilize the Iranian regime and he was held in solitary confinement in Evin Prison. What he explained to me was, the reason that that comes so easily to them is their reporters are, they are spies. And so what it says to me is this comes easily to Fox News because they are an organization that is sent here to lie and destabilize the American government and the American democracy. How is this not in some ways espionage? How is this not, utterly, it’s such a much larger issue. And how is Rupert Murdoch, you know, he can’t have these organizations in other countries that have tougher libel laws. He can’t get away with it. How is there not a RICO case against Murdoch? How is there not a class action lawsuit by the founders against an organization that is explicitly lying to destabilize our democracy? I mean, this is mind blowing. Lachlan Murdoch is suing an agency in Australia right now called Crikey, which is like a tiny publication for defamation. I mean, the hypocrisies are legion, but shouldn’t there be more peril here?

RonNell: Two points, I guess one point is that defamation law, is b is sort of by definition a limited tool, right? Um, tort law has its boundaries and, and in fact this, it has, it has really significant boundaries because you can’t actually bring a defamation suit purely for purposes of combating a lie. It has to be a reputation harming lie, right? There has to be somebody on the other end of it who was defamed. So there are huge swaths of conspiracy theories and, falsehoods that are, propagated, in the media and on social media —

Jon: Mm-hmm.

RonNell: —that aren’t really, you know, defamation law can’t be the vehicle by which we legally challenge them. We have to have somebody like Dominion on the other end, ah, saying “you told a false and defamatory statement.”

Jon: Right.

RonNell: “And it caused harm to us.” 

Jon: Someone has to have standing.

RonNell: Yeah and broad claims. In fact, some of the most da arguably most dangerous, sort of widespread societal lies of recent years. Um, something just, a broad-based statement like “the election was stolen.” Uh, or, you know, vaccines contain , you know, magnets —

Jon: Microchips.

RonNell: —codes or microchips. Um, without there being someone who is the defamed party on the other end, defamation law isn’t the tool that we can use. And so defamation law has to be part of a wider, sort of complex array of tools that are used to tackle disinformation, both, sort of on the supply end and on the demand end. And I think we really sit at a moment of sort of complexity of trying to think about how we tackle conspiratorial thinking and lies that are appealing to people. And so spread with, such virality.

Jon: And designed to do so. And strategize to do so.

RonNell: That’s right. A big piece of this claim is that.

Jon: Right.

RonNell: A big piece of the claim in this case is that there was a strategic decision. There’s a memo. It’s not getting a lot of attention, but there’s a, there’s a memo that’s in the evidence in this particular file, where someone at Fox says, “this kind of conspiratorial reporting sort of seems to be what the Fox News viewers, are craving” and they’re making reference to what’s happening over on Newsmax. And it’s a sort of, um, appetite, acknowledgement, right?

Jon: Mm-hmm.

RonNell: There is an appetite for this, and we fear, and particularly the way that the briefing is set up. Uh, it’s designed to show this story arc after Fox News called the election for Biden in Arizona. And that there was a great deal of upset and folks sort of gravitated over to other organizations that were more willing to platform Sidney Powell and Giuliani and others who were spreading this information about Dominion. And so thinking about the nature of the audience, thinking on the sort of supply side, is a really complicated question, the filing sort of suggests that Fox was stuck with a problem of its own making. That is, that it had, set folks up, to be so loyal and to see this interconnection between, Fox and the Trump administration and the broader conservative movement that when, Trump himself, came out and said, “everybody abandoned Fox and head over to Newsmax to get more of this election denialism,” they did so, and then Fox was left in a panic.

Jon: Mm-hmm. And you’re suggesting that in the way that, let’s say Dr. Frankenstein may have an issue with, when the monster turns and says, “I’m, I think maybe I’d like to take your head off.” And then there’s something that they have to do there, and everybody always thinks they can be smarter at that. But is there anything to, so let’s look at maybe some of the defamation cases that were in the popular culture over the last couple years. the main one I can think of is that kid, Nicholas Sandman from Covington High School.

RonNell: Mm-hmm.

Jon: Right. And he sued a bunch of outlets for defamation of his character. And I don’t know if he won the cases. I believe they were settled. 

RonNell: They were, yes.

Jon: But imagine if in discovery, the emails from CNN hosts said, “I know this kid is okay and that he didn’t do anything wrong, but we are going to keep sticking it to him because our audience doesn’t like him. And this flatters their prejudice and we’re just gonna keep coming at him cuz it’s good for our business.”

RonNell: Yes, that’s, that’s actually a very, it’s an excellent example of, the dynamic that we seem to have here. And it also, to be truthful, right? I teach in this area. I teach law students these cases, and I have to write exams where I test their ability to make these sorts of arguments and to work on behalf of clients in this space. Uh, and in some respects, the kind of fact pattern that is, set forth in the filing from Dominion that’s just been made public.

Jon: Mm-hmm.

RonNell: Is too easy. That is, it’s too, too direct. [JON LAUGHS] It wouldn’t be a good enough case. 

Jon: It’d be – you’d be teaching a remedial class. If this were to line up like this, they would say, “my God, this would never happen. It’s too on the nose.” So you can’t teach it in a law school class because it’s such a slam dunk.

RonNell: Yes. Uh, I haven’t ever written an exam that had —

Jon: Oh dear Lord.

RonNell: —direct evidence —

Jon: Wow.

RonNell: —of knowing falsity because it doesn’t happen with any real frequency. We should also note, it might be of interest. There are huge portions of this filing that are still redacted.

Jon: Why would they be redacted?

RonNell: Like a nerd, I read all, almost pages of it. Um, there are portions that Fox has fought, um, to keep from public view for a variety of reasons. Um, probably, arguing, reporters’ privilege or confidentiality or internal rules. And there are, it’s being litigated.

Jon: There are things in here that are worse than what we are seeing. The things that we are seeing are the things that Fox News thought “All right, we can let that go,” but there is more underneath that.I mean, this is a criminal enterprise.

RonNell: Either they thought that they could let it go or they thought, or they lost in, in an effort to redact it. But there are portions that I’m really quite eager to see as a defamation scholar. There are portions where it says something like, “Key people, involved in the stories involving Dominion, squarely acknowledged that it was false and that they were moving forward, for these reasons.” And then there’ll be a full page of, blacked out language. And then the lawyers in the aftermath of that say “exactly,” as if, out of the mouths of — 

Jon: Oh my Lord. 

RonNell: —Fox News. Someone at Fox News has made their case for them, is the suggestion. So contextually, there’s some suggestion that there is evidence that we’ve not yet seen that further promotes their argument about actual malice. It’s also the case that Rupert Murdoch was deposed after this, this brief was filed. And so there’s additional evidence that might have come from the deposition of Rupert Murdoch that hasn’t been included in this.

Jon: Professor, is there a difference if, if the Fox hosts are saying, “We are doing this because our business model depends on it,” or, “We’re doing this to keep the right in power.” Does it make a difference legally what their justification is for this actual malice?

RonNell: No. In fact, this is the reason why actual malice is such a sort of inappropriate term here. The law doesn’t really care about Fox’s relationship with its viewers or Fox’s relationship with the Trump administration. The law cares about Fox’s relationship with the truth and so—

Jon: Whoa, they have a relationship with the — Uh, well, right now I think they’re, you know, not even friends with benefits. [JON LAUGHS] Their relationship with the truth is as cold as ice. They are exes that haven’t seen each other in maybe twenty years.

RonNell: Right, so if the defamation, plaintiffs here can demonstrate that they have no relationship with the truth or that more to the point that their relationship with the truth is that they knew that what they were saying was false and they said it anyway. Or they acted with reckless disregard for the truth. Then, what caused them to act with reckless disregard for the truth isn’t particularly pertinent, although you can see how it’s helpful. The filing itself, weaves this narrative arc that is suggesting, that it sort of makes sense in terms of both the kinds of statements that they’re making about, knowing falsity, but also the sets of statements that they’re being made about what might draw them, to want to continue to discuss things in this way.

Jon: Mm-hmm.

RonNell: All really powerful evidence to present before a jury, if they move forward with trial. That suggests that the actual malice standard can be met. We should note that, I mean, part of what Fox is saying here, we haven’t seen, the full response, from Fox here.

Jon: Well, we’ve seen their PR department, which says, “You’re cherry picking.” You’re taking only the things where we state explicitly that we know we are lying. I mean, what about the times when we don’t say that? What about the times when I didn’t stab the person. [JON LAUGHS]

RonNell: Sure. And then we’re not, of course, the absence of, that’s not the absence of actual malice, that’s just the absence of more actual malice. But it is, it is of course the case, that the foundational First Amendment arguments here, broadly speaking about what we want to have, be permissible in conversations in our society are true. 

Jon: Mm-hmm

RonNell: I mean, I feel quite strongly that a sitting president challenging the validity of an ongoing election is nothing if not objectively newsworthy, right? Conversations about that —

Jon: No question. And by the way, can be legitimate.

RonNell: Of course. And, election denialism was of course getting coverage, at lots of other news outlets, across the country at the time —

Jon: Of course.

RonNell: And so, you’re gonna see, of course the, the Fox briefing is gonna lean into this, right? It’s going to emphasize there were some —

Jon: Right.

RonNell: Some folks internally who, were hopeful that these, claims about Dominion were true and others who were skeptical of it, and that it was a mixed bag, and that they were just, asking questions and answering questions. 

Jon: Clearly they weren’t. 

RonNell: The briefing here is pretty powerful in this regard. There’s a line here in, Dominion’s, mo motion for summary judgment that says, “You know, we’ve been at this for something like eight months of discovery. We’ve deposed everybody top to bottom, from the head of the, corporate parent, to the producers on the show. And no person that we’ve deposed under oath has said, that they believed anything that was being said about Dominion.” And that struck me as a pretty powerful takeaway from that filing, if that’s the case.

Jon: Well, I think the larger, the larger point is not even so much that they were saying, “oh, we knew they were lying. We put ’em on the air anyway,” it really is Rupert Murdoch’s email to the head of Fox News saying, “do whatever you can to help Trump. Let’s focus on Georgia. Let’s make sure that we help— what it speaks to is all these other actions are under the rubric of something larger, which is, “We are a political propaganda arm.” And I guess ultimately legally them knowing they’re lying and you can do defamation, but is there a larger point to truth in advertising? Is this something as simple as, do they have to remove the news from their name? And then cuz listen, in, in the old days they argued, I think there was another defamation case against Tucker Carlson. And and I think Fox argued their legal brief was, “Look, he’s evil, he’s an evil person. We don’t like him. Uh, we feel that, he’s a terrible person, so don’t take note.” I think their argument was, “no reasonable person would believe what he says.” Uh, and they argue it persuasively. Is this as simple as Fox just going like, “Hey man, take the news, take the name ‘news’ out of our name and everything we do is fine.”

RonNell: Well, so, two separate points on that. I mean, the first in a key one is the New York Times v. Sullivan Standard, doesn’t apply just to protect, news organizations or journalists. 

Jon: Oh!

RonNell: It’s a First Amendment standard that applies, I was going to say to regular people like you and me. To regular people like me um —

Jon: And me! I’m not news.

RonNell: But you speak and comment on matters of public concern for a living.

Jon: No question and I rely on satire law. I rely on First Amendment, fair use and satire, and all those, different things. But I never suggest that we are, a journalism outfit or that we are news or that we are fair and balanced. We are very clearly – we are what we are.

RonNell: Yes. And there’s an interesting dynamic that’s in play here in all of the moving parts on the different defamation suits that are floating out there. So, there, there have been arguments in one of the cases, directly against Sidney Powell. So, Powell, and Giuliani and some individual Fox hosts are themselves, the defendants in, suits so Smartmatic and Dominion have sued them directly in addition to this suit against Fox News. Uh, and at one point, Sidney Powell’s lawyers argued essentially that, no reasonable person would’ve thought these to be, real assertions of fact. That they were simply, a sort of rhetorical hyperbole and, not meant to be taken as factually true.

Jon: I thought they would argue the opposite. I thought they would argue, I thought they would argue the Costanza standard, which is, it’s not a lie if you believe it. And I would’ve thought that Sidney Powell would be arguing, “Oh no, she’s not defaming you. She’s nuts.”

RonNell: It certainly is a little tricky. We actually see, some information about Sidney Powell’s own sources in this filing. Um, the Dominion case against Fox—

Jon: Yes.

RonNell: —Included within its discovery information about what Fox News knew, were, Sidney Powell’s sources of information.

Jon: Which was apparently a time traveler.

RonNell: Yes. Uh, well, either a time traveler, a person who characterized themselves as a time traveler who was potentially also a ghost, who said that they received messages from the wind, and that they, had, experienced, a partial internal decapitation that gave them special powers.

Jon: Sure, no. That’s in the brief, that’s in the brief.

RonNell: That’s actually the kind of, information that you sometimes see in these sorts of defamation suits trying to prove actual malice.

Jon: Right.

RonNell: It’s that it was so implausible, right, that the sourcing was so poor that no reasonable journalistic outlet would have believed it. But of course, not acting as a reasonable journalistic outlet doesn’t reach the standard. Uh, you can engage in sloppy journalism and not meet the actual malice standard. Rather you have to get to a place where there’s this clear and convincing evidence that you had knowing falsity.

Jon: Do you think that this is a case of, an organization, a propaganda arm of a political movement knowingly exploiting – you know, in some ways it’s, they hate our freedoms, and so they’re going to exploit the cracks in a system that believes in the First Amendment. They’re gonna exploit that and leverage that to gain their own political power. Aren’t they gaming a system designed to give journalists broad leeway in trying to expose truth by basically reverse engineering it to create falsehoods, and then exploit those falsehoods which appeal to the basis instincts of their audience. Keep that fear going, keep that divisiveness going. They’re the ones who are culturally cleaving this nation. They are the ones exploiting those loopholes to continue to divide us in ways that are, leading to an increase in violence and all kinds of other issues. How do you then attack it through?

RonNell: So I think in the coming weeks and months as we, not just this, defamation suit, but a series of others that are, sort of brought on the same premise, right? Uh, that, a lie was told that harmed an individual reputation, but that also caused wider societal harm, that these were sort of major democracy harming lies. The tension that we’re gonna see here – you’re gonna see folks on the one hand, expressing concern about the weaponization of defamation law, as we described, right? Uh, the risks that are involved in making it too easy to sue for defamation and allowing powerful folks, to be able to sort of, hold out the possibility of crippling damages for, sort of minor error, uh —

Jon: Mm-hmm.

RonNell: — and stifling debate. So the weaponization of defamation law on the one hand, and we’re gonna see that contrasted with the very real risks of the weaponization of First Amendment protection and the concerns that might exist if, we can, in the name of, broad construction of free speech law, sort of enable lies that, harm not just individuals and organizations, but harm, the public writ large.

Jon: Right.

RonNell: And that kind of tension between those two spaces is really, the sort of. the core thing that we have on deck coming forward. And we haven’t really had to tussle with it in, significant ways in quite a long time, in part because, we haven’t had any defamation suits that have teed up, issues of this caliber.

Jon: Right.

RonNell: And we also haven’t had any that have proceeded to this stage where we’ve had this kind of evidentiary record built.

Jon: This kind of discovery.

RonNell: Yes.

Jon: And the irony here is you know if this is now a question of, finally, the court system helping to, sort out and put into explicit terms, the strategies that are employed by a propaganda unit. And what’s so kind of ironic here is that Clarence Thomas, Neil Gorsuch, these are folks that are seeking to weaken Sullivan, that are seeking to broaden the ability for defamation. They are, once again – and I hate to bring up the petard– but there is a serious petard. They have a petard issue. And I wonder if, you know, the courts have proven themselves throughout this to be an incredibly resilient guardrail on these shenanigans. Truly, and I think what it shows is when you look at an organization that seeks to weaponize the First Amendment, I’m sure they’re going to seek to undercut the courts as well and weaponize the courts and, appoint people who won’t hold to these kinds of standards and won’t, you know, will rule in their favor, which we’ve already seen them try to do. I wonder if something like this– if Fox loses– they take this to the Supreme Court, I would assume, and I would imagine this puts Clarence Thomas and Neil Gorsuch and the others who seek to weaken defamation laws in a very strange position. Which is, this is everything that I have said, I’m trying to fight against, but it’s my political movement and I’m actually a tool in that propaganda machine. How do I deal with that?

RonNell: It’s a truly complex moment for the New York Times v. Sullivan Standard. And, and you’re right that, there’s an exceptional tension here in, in what we think of as, if we were gonna try to label it the conservative position, on this question of free speech. Gorsuch and, Thomas have both, now chimed in, separately and together in a series of cases where libel cases have come to the Supreme Court. And the Supreme Court hasn’t taken them, but these folks have, these justices have, have chimed in separately to say, we should have taken this case.

Jon: Right.

RonNell: And we should have taken this case as a mechanism for unwinding the protections of Sullivan. Scaling back and making it easier for folks who are, public figures or public officials, to do so. And interestingly, the position, at least Gorsuch – Justice Thomas’s position on this is an originalist one. He says, “The founders would’ve allowed these sorts of suits and we should, we should interpret the Constitution the way that something happened in.”

Jon: Yes. Because they speak to him through time travel because he was a, had a decapitation. And he and Sidney Powell talk to the founders all the time, and they explain very, very clearly, you should take that suit and also give everyone an AR-15. That’s what the founders would say explicitly.

RonNell:The originalist view is a little idiosyncratic. He’s the only justice on the court who holds it. But, Gorsuch, Gorsuch has chimed in to say he agrees, but for different reasons. And interestingly, his reasons are the reasons that you and I have been discussing today. That is he thinks that the standard might be enabling a system of disinformation the spread of disinformation in ways that are problematic. And in particular, he is concerned about the new media landscape, the ways in which, through social media, lies can sort of take flight and, become viral. And there are no meaningful consequences for them doing so. And so, in his mind, adjusting the defamation standard, the constitutional protections in that setting is the right sort of tool to ratchet. For all the reasons that I’ve described, right, that, defamation suits have all sorts of limitations and only work when we have a lie that actually directly harms the reputation. I’m not sure that that’s a good tradeoff to make.

Jon: No, but the accountability in for a news organization has always been that they would regulate so that they could protect their reputation as honest brokers or truth tellers. The anomaly here for Fox is they argue a standard that they themselves would never uphold. There’s an accountability in most news organizations. If they find that there is a prejudice or some, somebody has made a decision to air a false or purposefully, or has tried to twist something purely for a partisan. Generally there will be some sort of recrimination, some sort of penalty. When it comes to Fox, there is none because the truth is this helps them as they say in the primary, maybe not in the general, but it helps ’em in the primary. It’s rewarded and they never hold their host to account. I can’t tell you the s*** they gave me when it was “revealed” that I met with Obama twice over eight years. By the way, not revealed. It was in the visitor logs. And it wasn’t to discuss how I could help the Obamas, it was him sort of saying to me like, “I think you’re making young people cynical.” You know, and it was his concern about that. Meanwhile, Sean Hannity and those people are literally strategizing with presidents and people on the phone. There is no accountability on that side, and that is what they rely on. They rely on working the refs and holding these other groups to a standard that they would never comply with. And by using that, it is a strategy to neuter what you consider to be opposition that could hurt your political movement. It’s Orwellian, it is unbelievably, antithetical to what we supposedly believe is a free country.

RonNell: Yeah, the concern about the role of the courts in all of this and the power of the courts in all of this, I think is a really interesting and complicated one. And particularly when we take into account what the social science data suggests to us about, the difficulty of dislodging views that are deeply ingrained within a space, which is a, a prominent theme, that you see in the filing in this case. Right? The sort of, the prominent theme here is that, Fox, got anxious because folks didn’t want to receive the truth about, this election denialism and we’re gravitating elsewhere, to places that would continue to tell the lie about Dominion.

Jon: But it’s the whole truth for everything they do. They don’t, they don’t wanna receive the truth about black people in this country. They don’t wanna receive the truth about gender care. They don’t wanna receive – they don’t want to receive the truth about a variety of issues. There is a difference between viewpoints that don’t align and weaponizing issues to create cultural fault lines. And that’s what I’m suggesting is that their business model is weaponizing cultural fault lines.

RonNell: Yes.

Jon: And how do we get to that larger point?

RonNell: A piece of, what might concern us about the, the sort of ingrained nature of, these media models is that do we get to a place in which the outcome of defamation laws can’t serve that remedial purpose that we described. So one place in which I’ve been following this closely in the last six months or so is, Alex Jones, who has also been, involved in a prominent defamation suit—

Jon: Yes.

RonNell: —involving Sandy Hook parents, suggesting that they were, sort of paid actors who pretended that their children had been the victims of mass murder. And the, you know, we have, defamation damages running in the millions and there’s still, some, very strong suggestion that this moved the needle not at all in terms of the beliefs of the listening audience.

Jon: But that’s not, that should never be the standard. The standard can never be what we put out there will move the needle and I’ll go you one further. Alex Jones is a far less pernicious influence on this country than Fox News, by far. People know what that cat is, you know, they know if it looks like a duck, sounds like a duck, walks like a duck, like, they know what that is. Now, that doesn’t mean he doesn’t have influence, and that doesn’t mean that he didn’t defame those parents, cause he did, and he caused them grave damage. But as a cultural, pathogen, Fox News is far more powerful, far more devious, far more pernicious, and has created far more damage than Alex Jones ever will. And at least Alex Jones gives you supplements to help offset the damage. I mean, that’s the beautiful part about what he does. Now, if Fox would give you supplements… but do, do you understand what I’m saying? They are, there is no way. Alex Jones is a wolf in wolf’s clothing. Fox News is the opposite.

RonNell: Yes. But if the evidence that is brought forth in this filing, this most recent filing about Fox News is to be credited. And if it is the case that, the gravitational pull of the audience demand, right? Uh, that sort of symbiotic relationship between folks who crave, information, that supports that worldview and Fox’s, tailoring, sort of tacking in that direction in order to continue to feed that.

Jon: Mm-hmm.

RonNell: Then this, a similar problem exists, which is, we could have, we could have a judgment in this case. Let’s imagine that actual malice is proven that a jury and a judge agree that there was knowing falsity, reckless disregard for the truth in this dynamic, and that the claims that were made are objectively not true. That is that the election was not rigged, and the company did not design itself for Hugo Chavez, and there is no algorithm that can change a vote that was cast in one direction and siphon it off for another. They declare that to be judicially determined truth, and they further declare that Fox News knew this. That the corporate parent or the key actors in the dynamic were aware of knowing falsity and moved forward, to perpetuate a knowing lie. The question is how will Fox News viewers, come to know this information. Fox News itself is not, going to be inclined to do a story about it, to cover that information, they didn’t share those details.

Jon: They didn’t, they’ve got a media critic, a guy named Howard Kurtz, he’s their media critic. He got on the air on Sunday and ran through the Don Lemon s*** and all kinds of other stuff, and didn’t even bring it up. Didn’t even mention it. Just it’s not happening because in that, in the bubble that they’ve created that, that can’t get in there. But isn’t the point that it doesn’t matter. Look, Gawker was put out of business for far less than what is going on here, and we really don’t have mechanisms to hold that to account. And I’ve got my problems with CNN and MSNBC and news media writ large, but there is nothing like this, man. This is a totally different animal.

RonNell: So the, the key mechanism maybe here is the sort of preventative deterrent value of staggering damages, which is something that we’ve not touched on, but that I think might be important. Uh, Dominion is seeking $1.6 billion with a B dollars here.

Jon: Oh so like 25% of, you know, Fox’s cash on hand.

RonNell: Yes.

Jon: Like, it’s nothing, it’s nothing.

RonNell: Well, and, Smartmatic is seeking $2.7 billion and some of these will be adjudicated facts that will then also bleed over into suits against individual hosts and sort of dollars at hand at some point… I mean, we do know that there is a deterrent value that comes about from these sorts of, large compensatory damage claims. 

Jon: You think that can change behavior to some extent?

RonNell: I think we have at least some evidence that it – and I should note that as a First Amendment scholar, I have nervousness about celebrating the deterrent value. Well, I don’t wish to celebrate the chilling effect on speech, but I don’t have any problem with celebrating the adjudication of knowing lies and the awarding of damages in those situations that sort of sends a message about social norms and the breach of those social norms. And here we do have at least some evidence that behavior is altered by this. So, I mean, the very best example may be Lou Dobbs, who is the highest rated program on Fox Business, and within something like hours after the bringing of the Smartmatic suit in this case, was canceled, lost his show. There is lots of evidence over at Newsmax where they were even less well resourced.

Jon: Yeah. The head of Fox News said Lou Dobbs does a less nuanced show than they do in North Korea. 

RonNell: That was, that was a real gem from this filing.

Jon: Yes, they know. And here’s the truth of it. If they change their behavior, they do lose their audience because they’ve created – if a crack dealer decides, “you know what, we can’t make crack anymore cause now the police are coming and now we can only sell, you know, an herbal, you know, five-hour energy drink.” They’re gonna lose their audience because they’re the ones who’ve accustomed their audience to this lie, to this crack. They’ve been selling crack to their audience for years and they’re hooked and they draw in more people and if they pull back from that they understand someone will try and fill that void. So they actually can’t change. Cause if they do, they’re done.

RonNell: Yeah, there are memos and emails in this motion for summary judgment that are described that essentially make the argument that you’ve just described: producers to Tucker Carlson saying, “All that our viewers want to hear tonight is —

Jon: Mm-hmm.

RonNell: this election denialism.”

Jon: That’s right.

RonNell: Tucker Carlson himself, texting other hosts within the space to say things like, “If we counter this right, the reporter who is fact checking it right is damaging the brand.” And that kind of material from discovery, I think is gonna be powerful. It has been powerful. It’s had a powerful sort of aftershock, not just as to this case, but as to the wider dialogue that folks are having about the role of Fox News and the motivation of it, in this space.

Jon: Absolutely, and imagine this a news organization in America putting in a filing that truth will damage our brand. Truth. F***. Amazing. 

Jon: Professor, thank you.

RonNell: Thank you.

Jon: We’ve been talking to RonNell Andersen Jones – Absolutely fantastic information. Really appreciate you being with us.

RonNell: Thanks so much. Take care. Bye!

Jon: Alright! 

Interview with RonNell Andersen Jones Ends

[TRANSITION MUSIC]

Jon: The law! [JAY LAUGHS] That was, I just like, I like the argument where they’re like, “F*** these guys. These guys are assholes. They’re doing this on purpose.” And she’s like, “In the case of the New York Times v. Sullivan…” [LAUGHTER]

Jay: Yeah. When you said legalese, I was back here like, “OK, well Ipso, facto, ergo, habeas corpus.”

Jon: Heretofore.

Robby: I felt like I could keep up cuz she’s like, this is too easy to teach in class. [JAY LAUGHS]

Jon: Wasn’t that – that was, I think, my favorite moment. She’s like, “I couldn’t give that as a problem because it’s, this is such a slam dunk.”

Jay: “I would never put this on an exam.”

Jon: I do wonder that, you know, when you talk about defamation, so it’s honestly, it’s just going to be money. The truth is when you’re an organization that has a loyal audience, you really can’t be beat. Now, I could see somehow legally them saying, “You can no longer have the word news in your title.”

Jay: Or you have to make it very little.

Robby: Yes —

Jon: How little would the logo have to be Jay?

Jay: The tiniest script.

Robby: When I’ll tell you a little romantic, short, romantic story. When I first moved to New York City —

Jon: Yes. Robby, please. Please.

Robby: — with Casey Balsham, who’s my wife now. When she moved here, we were just friends.

Jon: She is your wife!

Robby: She is my wife, but we were just friends when we moved here and then we slept together the first night. That’s an aside. We don’t need that detail. But —

Jon: Was that, was that based on the size of the apartment you moved here?

Robby: Yeah, Jon. It really was. It truly was. [JAY LAUGHS] To celebrate our moving, we went and got a bottle of wine from a bodega. So we open up this bottle of wine and it is like a rancid sweet, grape juice. It’s disgusting.

Jon: I believe it’s Manischewitz. They call it Manischewitz, right?

Robby: Basically. So I look at this bottle and I learned in a New York City lesson, you can only buy wine at liquor stores in New York, bodegas can’t sell wine. But what they do is they sell a fake product they can fool you with once called “wine product.” It looks like wine. The bottle looks like wine. They make you think it’s wine. And fox news is news product. It looks like news. You think it’s news?

Jay: Mm-hmm.

Robby: But it’s not.

Jon: Right.

Robby: It’s a facade.

Jon: But here’s the difference. it would be the same if in that bottle of wine was heroin and that heroin addicted you and all you wanted was more.

Robby: Yes.

Jon: To the point where if you saw a different news channel on in an airport it would make you mad. It would make you mad that this other network would be allowed to broadcast because they live in the upside down. An upside down that was created to flatter their fears and prejudices. And, this wine product that you speak of is now the largest semi-alcoholic brand of wine in the country and it’s killing —

Robby: Yeah.

Jon: — all of our grandparents.

Jay: I like the wine analogy because if you drink enough Fox News, you will say, “Oh, so I can’t say it, but they can say it in songs?” [LAUGHTER] “OK. Alright. I’m just repeating the lyrics.”

Jon: This is, for me, I feel like if Buzz Aldrin, if you just looked at his emails and it said like, “Yeah, we faked it.” If you were one of those guys, [LAUGHTER] like years you’ve been, you’ve been going like, “I’m telling you they weren’t there. It’s, it’s a green screen. You’ve gotta believe me.” And then finally you got to look at the emails and you’re like, “We weren’t there.”

Robby: Uh-huh

Jon: “You’re right.”

Jay: I think the other thing that I noticed when Robby described it as wrestling, it is such character work. It’s such a strong like, acting gig for them.

Jon: Yeah.

Robby: That the minute they pulled back the curtain at all, it’s like, “Well, she’s f***ing crazy. I’m not gonna say that. Oh my God, how am I gonna get away with this? Oh, I can’t.”

Jon: That’s right.

Jay: It’s so funny. And I guess illuminating to see the amount of vitriol that they have for each other behind the scenes, because everyone’s trying to be the most famous person. Everyone wants to have the highest rated hour. Everyone wants to be closer to the king maker. It’s so poisonous. Robby: I feel like we are in the steroid era of news, you know, where it’s like, “Yeah, there’s an asterisk —

Robby: but it’s fun to watch.”

Jon: You’re saying they might not get into the Hall of Fame.

Robby: I’m saying they might not get into the Hall of Fame.

Jon: Yeah. It’s, it’s interesting, you know, when they discovered the steroid era, it, it became less obvious. That there was cheating in baseball.

Jon: Like you didn’t see any of the people. There were no more baseball players that looked like Simpson’s drawings of baseball players. like the giant head.

Robby: Yes.

Jon: And the little body like that changed, but I don’t think they’ll back down an iota, I don’t think — Cuz there’s no drug test for lying.

Robby: Mm-hmm.

Jon: There’s no, you know, here’s the change that’s going to be made at Fox News. Stop emailing and texting people.

Jay: Ooh.

Jon: It’s just gonna run like the mafia now.

Robby: Right.

Jon: When you have something to say, you’re gonna go outside to the corner where the phone booth used to be and you’re gonna whisper it, but they’re not gonna, they’re not gonna leave a paper trail. They’re not gonna leave the evidence that they left, that this is collusion and this is a strategy and this is cynical. That will be the only change because they will not change their goal or what they’re trying to do.

Jay: I do think Brian Kilmeade is gonna be the one who’s like, “I’m so happy I didn’t put this in paper, in it’s email.”

Robby: Kilmeade and Ducey, you’re gonna take that place down.

Jon: I’m telling you, man, Ducey is the one who comes out smelling like rose in all this. But they will double down. And Tucker is, you know, his whole persona now is this vitriolic character. I mean, I don’t even know if it’s character. I mean, maybe he is just an honestly terrible person. It may be.

Robby: He’s so aggrieved and everything has gone right for him. Alway — he grew up rich.

Jon: But it doesn’t matter that, that he grew up rich. It’s what he chooses to do with his. With his power. Listen.

Robby: Yes.

Jon: Here’s what he is. He’s Hunter Biden without a crack habit. He’s the same s***. that’s why he called him to say, “Help my son get into Georgetown.”

Robby: Yeah.

Jon: And do all that. I gotta Tucker cross. I swear to f***ing, if, if a date rape drug had a face, it would be his. Yes, he is. He he is, he is that guy.

Jay: He is the angriest looking boat shoe I’ve ever seen.

Robby: He is more charcuterie board than man. Yeah.

Jon: All he is a man looking for justifications for the evil that is in his heart.

Robby: Mm-hmm.

Jon: And his whole life is dedicated to that.

Jay: I do think we are being a bit negative though, because once again, this is my favorite genre of high prestige TV. This is “Succession.”

Jon: Alright.

Robby: Yeah.

Jay: This is “White Lotus.” This is messy white people behind the scenes, billions of dollars at stake. This is gripping television.

Jay: Horrible news, great tv.

Robby: Can I say that my favorite revelation from all this is that Tucker Ingram, Hannity group text thread exists. That I, that just probably looks like collection of the angriest Yelp reviews you’ve ever seen going back

Jay: Robby….

Robby: and forth.

Jay: I’m gonna go one step further and say, I gotta see the media tab

Robby: Uh-huh

Jay: — on that group chat.

Robby: Oh, I know what it is It’s Laura Ingram sharing some of the memorabilia she collects, you know? [JON LAUGHS]

Jon: “This is a luga. It’s a gun that I found!”

Robby: It’s a photo obba group in Fuhrer uniform intact…

Jay: Oh my god.

Jay: — and them showing vacation photos in Argentina.

Jon: The whole thing is, is disappointing. It’d be like finding out that the friends weren’t really friends. That Joey really didn’t want to know, “How you doing?” That’s what’s upset.

Robby: Heartbreaking stuff.

Jon: Uh, guys. Wow. What a day, what a life. Show’s coming back soon. The Apple TV+ show. Wanna thank, the professor! Boy, she knew what she was talking about. My God. Professor RonNell Andersen Jones. Uh, Robby, Jay, see you guys in the office.

Jay: Bye

Robby: See ya Jon. Bye everybody.

[OUTRO MUSIC]

Jon: “The Problem with Jon Stewart Podcast” is an Apple TV+ podcast and a joint Busboy Production.