One of the virtues of absolutism is the power to be consistent: If you say there should be no limits to free speech, then anytime you have a case, no matter how complicated it is easy to know the answer.
If Mr. Giuliani appears on your show and you know what he says it is a lie, and you agree with him, "Wow!" you say, "That's awful!" He can say it and you can broadcast it, because speech, even false speech is protected by the First Amendment-- if you are an absolutist, like the ACLU.
There are some problems with this:
1/ Here is the first amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So, if the judicial branch of the government finds a defendant guilty of defamation for lying on public airwaves, that is abridging the right of freedom of speech, his right to say wrong, stupid or knowingly untrue and hurtful things. And if that lie is put forward by the press, then it's doubly protected.
Right? Well, not absolutely.
Famously, as Justice Holmes said, "The first amendment does not give you the right to falsely shout 'Fire' in a crowded theater."
Why? Because there can be consequences to those words, which are an act in themselves and people can be directly and immediately harmed, physically or financially, by that act.
Laws against inciting a riot come down to the Brandenberg decision, in which the test for incitement is proximity to violence, or "imminent lawless action." So someone who says, "Go lynch that darkie!" if that is followed by a lynching, then he is guilty of incitement.
But if he says, "Hang those people who don't look like us, or maybe not. You might want to. I don't know. But I'm with you. If you want to save the country and your wives and daughters, and if you want to be heroes and do the right thing, you have to use force. I'm right behind you," well then, you've got some ambiguity.
He really said "you might want to" not "you really ought to" or "you have to."
But if 10 minutes later a person of color is lynched, most juries would find Brandenberg instructs them.
In other democracies, like Germany, you cannot deny the Holocaust. They decided, after Hitler, an abridgment of free speech was a fair price to pay for squelching the big lie, and yet their democracy thrives.
So some abridgment of free speech can be seen to be necessary.
We need some rules to guide when speech can be abridged.
These rules usually start with something called "the truth."
In America "truth is an absolute defense against a charge of defamation or slander."
But what is a "fact"? and What is "truth"?
2/ To prove something is a lie, you often have to establish the truth.
And how do you prove there are no lasers from outer space causing wild fires or that Democrats do not drink the blood of white Christian children in Satanic rituals or that Hillary Clinton is not even today running a child pornography ring out of the basement of a pizza pallor which has no basement, in Northwest Washington, D.C?
To appreciate what Fox News did in the case of Smartmatic you really have to hear the clips from Fox and that's where the podcast, "The Daily," is so useful.
Listen to this podcast and then come back to this blog post.
(Preview of coming attractions: Rudy Giuliani and Sidney Powell claimed Smartmatics software for elections machines turned elections in Georgia, Pennsylvania and Arizona from Trump to Biden; but the truth is, no Smartmatic software was even in voting machines or used in any way in any of those states.
In fact, Smartmatic was used only in LA county.
That is one of those things you can investigate, document as a "fact."
That Smarmatic was created and is still owned by Venezuela's Hugo Chavez is also easy enough to disprove, and yet Fox apparently never sent a cub reporter to investigate, simply reported what Giuliani and Powell said as true and reacted with, "Wow! We are so eager to hear the rest of your investigation!" )
https://www.nytimes.com/2021/02/05/podcasts/the-daily/smartmatic-fox-news.html
The common tests for defamation and slander are:
1/ The claim is false.
2/ The speaker knew it was false when he made it.
3/ The speaker had "malice aforethought" which is to say, meant to cause harm to the party he slandered.
Listening to this podcast, without doing any more googling, the Smartmatic suit seems to meet all these requirements.
One of few memorable classes I attended in college in which the professor confounded the class by asking us to define what is an incontestable "fact."
We went through all the mathematical arguments: 2+4=4.
But no, that's a definition, not a fact. We agree on that one as a convention.
"We are both sitting in this room together."
"Ah, but how do you know this?"
And on like that--spinning right on to metaphysics, Wittgenstein, Bertrand Russell and onward.
But real life is not metaphysics.
There are "facts" which are clear enough "real" enough and necessary so we can live life and not be harmed by wrong facts: If you are bleeding, we have to stop that so you can not die.
If you do not believe in exsanguination and tourniquets as "facts" then you are not going to survive long enough to exercise no friggin' First Amendment.
If you have been wounded, and your billion dollar company rendered worthless by Fox News in pursuit of a story it wants to be true but should know is not true, then you ought to be able to be made whole by Fox News.
Part of this discussion is tied up in the concept of "platform."
If someone posts a lie on Facebook, is Mark Zuckerberg responsible for the consequences of that lie? So far there is a law, 230c, which says, no, Facebook and Twitter cannot screen or "vet" millions of comments daily and users have to know that.
But not true for news organizations which present themselves as "journalists" or news outlets, whose job, it is commonly understood, involves challenging the assertions made by those they quote and interview, and to investigate the substance of those claims and then, if they report these claims they are responsible for reporting the denials by those affected.
Anyway, those were the rules when newspapers did not have to compete with News "shows" and social media.
FOX News may well argue it is and has not been for years a news organization: It's simply entertainment with blond, leggy young women crossing their gams on white leather couches while flashing white teeth and wearing hot pink dresses cut mid thigh.
But words have consequences, and in this case a multi-billion dollar company, Smartmatics, was executed. And it was a company which did a lot of social good in counting votes quickly and accurately in elections, mostly in countries outside the US.
And it was a company which was not even on the scene when the crimes occurred as alleged by Giuliani, Power and, more indirectly, by FOX. This unholy triumvirate claimed Smartmatics did illegal, nasty, election-stealing things in Pennsylvania and Georgia and Arizona, when, in fact, no Smartmatic software was running in any of those states and was only running in LA county. It's like blaming Mexico for Pearl Harbor.
The motivations of Giuliani and Powell were so clearly manifest, their need to find a dastardly villain capable and eager to steal the election was so visible, there is little doubt about motive, and the motive was clearly not truth seeking.
So we can only hope the courts, and ultimately the Supreme Court (Trump's Court) will do the right thing.
But this is America.
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