What Fox News Can Teach You About Defamation Law

I’m very excited about this post.

It’s not every day that I get to mention Fox News in order to make a point here on the California Defamation Law Blog. So here we go.

Seven individuals sued Fox News, Inc. over alleged defamatory statements made on the Hannity & Colmes show. The main beef was a caption at the bottom of the screen which read "Manhunt at the Border," which was displayed throughout the segment.  That, taken in conjunction with a poster that read "wanted," depicting the plaintiffs was enough for them to file suit.

Plaintiffs interpreted the statement "Manhunt at the Border" to mean that law enforcement was engaged in a manhunt.

Fox News filed an anti-SLAPP motion and asserted numerous defenses and arguments including: (1) that it was a matter of public interest because the issues were being considered by the police; (2) the statement were not "of and concerning" plaintiffs; (3) the statements were true or substantially true; (4) the statements were privileged as a "fair and true report" under Civil Code section 47, subdivision (d); and the statement were protected hyperbole, and opinion.

The trial court determined that the statement in question was privileged as fair and true report and fair comment, opinion, and hyperbole.  Taken in context, the court decided, it was unlikely a viewer would have understood that "Manhunt at the Border" referred to a law enforcement manhunt. Instead, a viewer probably would have understood the statement as hyperbole, a vigorous epithet, or loose and figurative language.

The California Court of Appeal, Fourth District, reviewed the case de novo

Given the context of the program, the court determined that no reasonable person could have concluded that the word "manhunt" could have referred to a law enforcement "manhunt."

"Instead, viewed in context, the Manhunt caption was an attention-grabbing or colorful way of referring to Monti’s attempts to bring to justice the alleged perpretrators of the attack against him."

But the court didn’t stop there. They emphasized that:

"an owner of a cable television news program has broad First Amendment rights to present information in the manner it chooses. The use of captions and graphics has become a popular method for television stations to enhance their news programs and thus to increase viewer audiences. In this case, plaintiffs seeks to isolate a four-word caption from the rest of the story to create a legal basis for their defamation claim. If we were to uphold this approach, it is likely the courts would be faced with a plethora of new claims from viewers dissatisfied with how a particular television caption or graphic has accurately summarized or represented the essence of the news story."

Why I appreciate the majority’s clear concern to uphold the First Amendment and afford great protection to cable news providers, their analysis is deeply flawed.

Their argument that no reasonable person viewing the show could have interpreted the "Manhunt at the border" as a manhunt being conducted by law enforcement is totally unsupported. As the dissent correctly points out:

  1. Fox News’ own definition of "manhunt" refers to a search conducted by a group of individuals
  2. California courts have routinely used the word "manhunt" to refer to a search conducted by law enforcement.
  3. This interpretation of the word "manhunt" is the most common/reasonable interpretation.

The court simply got it wrong in this case.

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