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Opinion Why won’t Fox News apologize to DeRay Mckesson?

A segment of powerful race-baiting on “Fox & Friends” is headed to the courthouse.

Back in September, Fox News’s Jeanine Pirro accused Black Lives Matter activist DeRay Mckesson of “directing” violence at a July 2016 protest against police in Baton Rouge following the slaying of Alton Sterling. “In this particular case, DeRay Mckesson, the organizer, actually was directing people, directing the violence,” said Pirro in a chat with “Fox & Friends” hosts who couldn’t muster a dissenting word.

As explained in this post, the comments from Pirro rested on a wobbly foundation. A Baton Rouge police officer had sued Black Lives Matter and Mckesson over an injury he’d sustained in that protest, but a federal judge ruled that the movement couldn’t be sued and cited a lack of evidence that Mckesson had engaged in the alleged activities. “Plaintiff does not state in his Complaint how Mckesson allegedly incited violence or what orders he allegedly was giving,” wrote Louisiana federal judge Brian A. Jackson in his ruling.

After Pirro sidestepped those findings and blasted Mckesson, the activist tweeted:

As this blog reported at the time, Mckesson was checking into his legal options, which started by seeking a retraction from Fox News. That didn’t work, so on Tuesday he sued Pirro and Fox News for damages to be determined at trial. The suit is lodged in the New York State Supreme Court. The gist of the complaint is straightforward. “These false statements were also extremely dangerous and continue to endanger Mr. McKesson,” reads the suit, filed by attorney Matthew D. Melewski. “Mr. McKesson [sic] is a black civil rights activist who regularly makes public appearances. Falsely stating that Mr. McKesson assaults police officers has seriously endangered Mr. McKesson’s physical safety.”

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In response to the suit, Fox News issued a statement: “We informed Mr. McKesson‘s [sic] counsel that our commentary was fully protected under the First Amendment and the privilege for reports of judicial proceedings. We will defend this case vigorously.”

When this blog in September asked Fox News to respond to Mckesson’s objections, Pirro issued this statement: “Based on 32 years in law enforcement, you can only be found not guilty after a trial. McKesson was not tried. I was quoting paragraph 17 and 19 from court documents.” That defense appears to be a reference to the original complaint from the anonymous Baton Rouge officer, which blames Mckesson for his injuries. It’s that complaint that was dismissed by Jackson.

The translation: Pirro appears to believe an anonymous police officer over the ruling of a federal judge and the word of Mckesson himself. Fox News’s assertion of a “privilege” for judicial proceedings relies on this provision of New York state law, according to Melewski: “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”

Bolding added to highlight the need for accuracy, which is often in short supply on “Fox & Friends.” “Journalists have a privilege to report defamatory allegations made in official government documents and proceedings,” says University of Florida professor Clay Calvert, a First Amendment expert commonly quoted in this space, “but only if the journalists’ report is both fair and accurate, as well as directly attributed or sourced to the documents or proceedings. Fair means if someone denies it, then you have to report it.”

In this case, Fox News faced a choice — make amends right after it slimed Mckesson on air, or wait to do so as part of a lawsuit. It chose the hard way. “In the initial letter to Fox,” Mckesson tells the Erik Wemple Blog in a DM, “we asked for a retraction. If they had, I would not have needed to file a lawsuit.”