June 13, 2013

There are many things for which Fox News deserves blame. General journalistic corruption is one. A prominent platform for Sarah Palin is another. That ridiculous see-though footrest on the set of “America Live w/Megyn Kelly” is another.

One thing for which we shouldn’t blame Fox News, however, is the emotional damage to the family of the man who committed suicide on Fox News on Sept. 28, 2012. The facts of the episode are as tragic as they are familiar: The suicide victim — later identified as JoDon Romero — led authorities on an extended chase, winding up in the desert near Salome, Ariz. Romero stopped his automobile on an unpaved path, got out of the car and staggered through the desert.

A helicopter was shooting the scene for the Fox News affiliate in Phoenix, which fed the video to Fox News Channel. “Studio B,” the afternoon show of prominent Fox News personality Shepard Smith, was carrying the footage. Once Romero got out of his car and exhibited some desperate behavior, however, Smith grew concerned. The Erik Wemple Blog, who watched it unfold in real time, can still hear the host pleading with his production people to “get off it.” Those pleas were for naught, as Fox News captured Romero shooting himself in the head.

The episode prompted a Maricopa County civil complaint from Angela Rodriguez* on behalf of three children identified in as “JoDon R., Jr. (15 years-old), Frank R. (13 years-old), and Noah R. (9 years-old).” They are the biological children of Romero. The suit seeks “[e]xemplary damages to the extent permitted by law” from Fox News (and related defendants) for “intentional” and “negligent” infliction of emotional distress. A wrenching series of details lies beneath the suit.

On the day of Romero’s suicide, the complaint notes, area kids heard right away about the event. In the words of the complaint: “Rumor of a suicide broadcast on live television generated considerable buzz among the students at the school, particularly with respect to the two older boys.” Upon arriving home that afternoon, the older boys checked out YouTube to see what had happened. “As they watched, they realized in horror that they were watching their father.”

The boys’ trauma, says the complaint, is severe:

Neither JoDon, Jr. nor Frank has returned to school since viewing their father’s death on YouTube. An examining psychologist reports that “JoDon and Frank described approximately equivalent symptoms of posttraumatic stress disorder that included flashbacks, repeated thoughts and feelings associated with viewing the video of their father shooting himself in the head, re-experiencing trauma, sleep disturbance, and intrusive thoughts.”

According to the lawsuit, there’s a causal relationship between the conduct of Fox News and the suffering of the boys:

The minor children are the biological children of JoDon Romero.
They were in the zone of danger of viewing inappropriate material broadcast over live television.
As such, Defendants breached their duty of care towards the minor children.
As a direct and proximate result of Defendants’ negligent infliction of emotional distress, the three minor children did, in fact, sustain severe emotional distress and psychological trauma. The children have experienced physical manifestations as a result of this psychological trauma.

It’s right there that the Erik Wemple Blog gets off this logical bus. Fox News made a mistake that afternoon. It should have cut off the feed in time to spare its viewers this horror. For its mistakes, Fox News issued full-throated apologies, both from Smith and from Senior Vice President Michael Clemente. There were no equivocations in either mea culpa, either. They were as sincere and airtight as the mistake was egregious.

Here’s a snippet from Smith’s apology:

We took every precaution we knew how to take to keep from being on TV and I personally apologize to you that happened. Sometimes we see a lot of things that we don’t let get to you, because it’s not time appropriate, it’s insensitive, it’s just wrong. And that was wrong. And that won’t happen again on my watch and I’m sorry. We’ll update you on what happened with that guy and how that went down tonight on The Fox Report. I’m sorry.

That Fox aired something horrible, however, doesn’t mean it should be liable for the emotional damage that it may have caused viewers. And this is where the doctrine of personal viewing responsibility enters the picture. Roger Ailes didn’t fly out to Arizona and force those children to pull up the Fox News video on YouTube. They did it for themselves. That’s not to minimize the trauma that they have undoubtedly suffer or to judge their actions; our sympathies go out to them. The complaint, however, makes perfectly clear that the boys searched the web with the intent of watching a suicide: “After school, the older boys went home and began looking for the suicide on the internet.” It’s possible that the boys would have suffered trauma even if the person in the video hadn’t been their father. Would Fox News have been on the hook for that as well?

Clay Calvert, a University of Florida professor who teaches media law, says that covering car chases “is newsworthy in almost every major television market, at least since Al Cowlings drove O.J. Simpson in the back of the Bronco.” Plus, says Calvert, Fox News couldn’t have known that the chase would end so miserably. The Erik Wemple Blog, a dedicated Fox News watcher, hasn’t seen any car chases on the network since Arizona, and an inquiry to Fox News regarding that matter went unreturned.

A tricky question uncorked by the complaint relates to the roots of the children’s trauma. How much of it stemmed from the footage itself and how much stemmed from the mere fact that their father killed himself with a gun in the middle of the desert? Is that something that a civil proceeding could ever sort out? Calvert says, “Although perhaps callous sounding, the real cause of any emotional distress suffered by the children was the result of their father’s actions. But for his actions, there would be no lawsuit.”

*UPDATE: A previous version of this story identified Rodriguez as the wife of Romero; the complaint identifies her only as the mother of the children.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.