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After Seth Rich, a staffer at the Democratic National Committee, was murdered in July 2016, Fox News published an article that suggested that he was responsible for leaking DNC emails to WikiLeaks. It became a popular conspiracy theory on the right. If Rich did it, then perhaps the Russians played no role, and everyone could put notions of Trump campaign collusion to rest once and for all.
The story didn’t hold up, and Fox News is facing a pair of lawsuits over its reporting about Rich. One piece of litigation involves Rod Wheeler, a former homicide detective who investigated Rich’s murder. Another lawsuit comes from Rich’s parents, who in March, alleged that the cable news network “exploited” their son’s death and caused them emotional distress. On Monday, Fox News asked a New York court to reject the latter case.
In requesting dismissal, the cable news network trots out standard arguments in cases like this: One can’t defame a dead person. Plaintiffs can’t circumvent this axiomatic principal by framing their cause of action under the guise of emotional distress. Others have tried, but prior courts have put a stop to such efforts because even if statements are false, family members can’t demonstrate such statements were directed at them.
No surprise there, and if there’s anything particularly provocative in the Fox News brief, it’s how the lawsuit should be dismissed for the independent reason that Rich’s parents can’t establish extreme or outrageous conduct.
“Although Plaintiffs assert that the Fox News article caused them pain, other readers might well consider their son to be a hero,” states the motion. “Far from condemning Seth Rich for the purported leak, the Fox News article portrayed him as a whistleblower who released the DNC emails to expose that ‘top party officials conspired to stop Sen. Bernie Sanders of Vermont from becoming the party’s presidential nominee.’ Emphasizing the point, the article contained a photo of Rich in an American flag ensemble above the cutline: ‘Rich was fiercely patriotic, say family members.’ That readers could take markedly different views of Rich’s alleged leak underscores that Plaintiffs cannot satisfy the outrageousness element as a matter of law.”
Rich’s parents are certainly the underdog in this lawsuit as prior attempts to creatively plead around defamation limitations have failed. But there’s a secondary claim being made by Rich’s parents that deserves some attention. Specifically, it was the Riches who hired Wheeler to investigate their son’s death — and their agreement allegedly had a confidentiality clause. Rich’s parents allege that Fox News tortiously interfered with this agreement by pushing Wheeler to divulge information about his investigation to its reporter.
Fox News responds.
“The First Amendment protects not only the right to publish the news, but also the right to gather it in the first place,” writes Fox News attorney Kevin Baine. “News reporting frequently involves the publication of information that one or more parties wish to maintain as secret, and oftentimes reporters encounter sources who are under some obligation of confidentiality. Both the common law and the First Amendment reflect these realities. Thus, as explained below, the mere invocation of a private confidentiality agreement does not make the publication of information a tort. Nor does the existence of a confidentiality provision make it a tort to encourage a private party to reveal information on a matter of public interest. The common law only prohibits inducing the breach of a contract ‘without reasonable justification’ and ‘for the sole purpose of harming the plaintiff.’ It does not prohibit a reporter from ‘seeking confidential information’ on a matter of public interest, or from seeking to persuade individuals who possess such information ‘to make media appearances.'”
Watch the judge’s ruling on this aspect of the lawsuit. In the meantime, here’s the full brief.
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