Yet there he was last Thursday night on “The O’Reilly Factor,” piecing together a pity narrative for himself and other rich and famous people. The starting point was that actor Ellen Barkin had apparently said something about O’Reilly that the popular cable host claims is a “flat-out lie.”
As O’Reilly’s monologue progresses, he dismisses the spat with Barkin as trivial. However:
The bigger issue is the tremendous decline in the American media. It’s now totally acceptable in many precincts to print or broadcast flat-out falsehoods, not even to bother confirming anything.
One of those precincts, of course, is Fox News, which reported that the Washington Monument was “tilting” following the August earthquake, a startling report that it never bothered checking with the National Park Service. The landmark today remains 100 percent upright.
The media’s falsehoods, continues O’Reilly, “just don’t affect controversial guys like me. All politicians and famous people are targets. Any accusation becomes a front-page headline. And you wonder why good people don’t run for office.”
Then he belted out a rallying cry, one that promotes his victimhood, threatens press freedoms and highlights contradictions in his past statements. It’s one hell of a package:
It’s long past time for we the people to stop ignoring the tremendous decline in the American media. We have garbage 24-7 on television. We have outrageously harmful things on the Internet. And we have a system whereby famous people cannot sue because they are public figures. That is harming our country dramatically.
The premises about TV and the Internet have been conventional wisdom dating back to the debut of both media. The part about suing, though, is another matter.
Contrary to what O’Reilly says, “famous people” and “public figures” may indeed sue, and they often do. It’s just that when they want to bring a libel case, they have to meet a more stringent judicial test than the rest of us. In 1964, the Supreme Court ruled in New York Times Co. v. Sullivan that in order for public figures — think O’Reilly or President Obama or D.C. Police Chief Cathy Lanier — to prevail in such cases, they have to prove not only that false and damaging information was published about them but also that it was published with knowledge or “reckless disregard” of its falsehood.
That O’Reilly would lash out against this bedrock case law is great fun. After all, New York Times v Sullivan is the jurisprudential pass card for the slams and distortions that Fox News broadcasts each day and night.
Example No. 1: Fox last week blasted President Obama for “essentially saying that Americans are lazy.” That was false.
Example No. 2: Fox several weeks ago reported that President Obama was planning to apologize to the Japanese for Hiroshima. That was false, as Fox later acknowledged.
Example No. 3: Fox News personality Sean Hannity said back in October that the president claimed to have grown up in Kenya. That was false.
Had Obama been just a regular ol’ guy under the law — as O’Reilly appears to want — he might have considered consulting a libel lawyer. A good attorney would have a ball with the trend line: A pattern of false statements broadcast by Fox News has done irreparable and irreversible harm to Mr. Obama’s political prospects and his standing in the professional world.
In other words, Fox is lucky that “famous people cannot sue,” to borrow O’Reilly’s phrasing. “For a network that makes so many false and misleading charges against progressives, clearly they stand behind the First Amendment” in such cases, says Ari Rabin-Havt of Media Matters for America, a nonprofit that watchdogs Fox and other right-leaning outfits.
O’Reilly’s attack against this aspect of the legal system amounts to an attack on the people he and all of Fox News purport to revere. That would be the Founding Fathers. The Supreme Court opinion in the New York Times case cites a bit of wisdom scribbled by James Madison: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” The opinion also mentions this awesome thought from a judge in a libel case:
Whatever is added to the field of libel is taken from the field of free debate.
O’Reilly’s intent to squeeze the field of free debate, too, grinds against his own proclamations. Just a few months ago, for instance, O’Reilly announced that he was for “tort reform,” a movement to limit access to the courtroom. On another program, he said, “It’s a good thing, tort reform.”
Asked Monday about his views on the matter, O’Reilly wrote in an e-mail: “The USA should move toward a civil litigation system where the loser of the case pays all court costs unless the judge rules otherwise.”
O’Reilly’s drum beating for tort reform and against New York Times v. Sullivan tees up a timely juxtaposition. Just when the Occupy Wall Street movement is highlighting income equality, O’Reilly is advocating legal welfare for rich people like himself and legal deprivation for just about everyone else.