Donald Trump is now on trial in the Senate for inciting a violent insurrection. But what about his collaborators? Fox “News,” Newsmax, One America News, and other right-wing outlets relentlessly pushed the “Big Lie” that led to this attack. On Jan. 4, for example, Fox News’s Tucker Carlson accused “virtually every power center on Earth” of working “tirelessly … to bypass voters and get Joe Biden to the White House.” “If that’s not rigging an election,” he thundered, “there’s no meaning to that phrase.”
Where is the accountability for right-wing propagandists like Carlson, who recklessly splashed around the lighter fluid that ignited on Jan. 6? There is, alas, little that can be done to punish their egregious lies — or to make them stop inciting hatred and violence in the future.
Under the Supreme Court’s ruling in Brandenburg v. Ohio (1969), the government can only restrict speech that was “inciting or producing imminent lawless action.” Because the Fox News hosts did not say, “Go out and physically attack the Capitol,” they cannot be prosecuted, even though they bear moral responsibility for what happened. As Media Matters for America points out, there is a long pattern of right-wing violence against abortion providers, immigrants, Democrats and other targets “that was egged on by conservative news outlets, which then tried to distance themselves in the aftermath.”
The only legal action that has shown any success against the disseminators of disinformation has been defamation suits. The voting machine company Smartmatic filed a $2.7 billion defamation case last Thursday against Fox News and several of its on-air commentators. This follows a lawsuit filed by Dominion Voting Systems against Trump lawyers Rudolph W. Giuliani and Sidney Powell. Unlike the frivolous suits filed by some Trump allies against mainstream media, these cases have merit — and therefore bite.
It’s not clear why Fox News took Lou Dobbs — one of the biggest spreaders of election lies — off the air, but it is significant that this occurred right after the Smartmatic lawsuit was filed. (Yes, “cancel culture” exists … at Fox News!) Also, last week, nervous Newsmax hosts cut off MyPillow CEO Mike Lindell as he began to launch into a delusional tirade about Dominion voting machines.
These are small victories for the truth. But let’s not exaggerate their impact. Fox News is a giant corporation that presumably pays for libel insurance; it won’t be put out of business by a defamation case. And while Fox has taken Dobbs off the air, it continues to give airtime to Maria Bartiromo and Jeanine Pirro, who were also named in the Smartmatic suit. Indeed, Fox News is reacting to slippage in its ratings by putting more unhinged editorializing on the air. Bartiromo is one of several bloviators who have auditioned for the 7 p.m. time slot once reserved for supposedly straight news.
The most common recourse cited by Fox News critics is advertiser boycotts. There have been many over the years, and many advertisers have dropped various Fox News shows after incendiary comments by the hosts. But there is no evidence that ad boycotts hurt Fox News enough to force it to mend its ways. “The boycotts themselves are not having a financial impact of any significance,” Fox Corp. CEO Lachlan Murdoch said in 2019. Indeed, Fox’s revenue increased 14 percent in the quarter ending Dec. 31. Often Fox is simply able to move an advertiser from one show to another. In any case, advertising is not Fox’s main source of revenue. It gets most of its money from cable system subscriber fees.
I have previously suggested pressuring cable giants like AT&T, Comcast and Charter Spectrum to drop Fox News, Newsmax and OAN if they don’t clean up their act. But the cable systems have shown little willingness to police their offerings, and they can cite fear of the Federal Communications Commission (FCC) for not acting. Because AT&T owns CNN (I’m a CNN analyst) and Comcast owns MSNBC, if they dropped Fox News, they could be accused of giving preferential treatment to their own news outlets.
I also suggested reviving the Fairness Doctrine, which the FCC stopped enforcing in 1987, and I still think it’s a good idea, but it may not be possible. The original Fairness Doctrine only applied to broadcasters based on the rationale that they were using scarce publicly owned airwaves. It would be much harder under the Supreme Court’s precedents to extend it to cable channels even though fiber-optic cables rely on public rights of way. “The odds that the current Court would permit the revival of the Fairness Doctrine or anything like it are extremely low,” constitutional scholar Laurence Tribe told me.
So while Trump is on trial, his media enablers are free to continue lying and inciting hatred — which is likely to result in more violence in the future. (And they are.) There will always be an audience for extremism, and it only takes 1.2 percent of the population (4 million people) watching a cable show to make it into a huge hit. The only real check on the behavior of the right-wing media is a sense of social responsibility on the part of their executives and boards. Which means that there is no check at all.
President Trump’s Senate impeachment trial
The evidence: All of the exhibits presented in the Senate trial
What happens next: A guide to Trump’s impeachment
Graphic: Where Senators stand on impeachment
Stay informed: Read the latest reporting and analysis on impeachment here.