Fox News Beats Lawsuit From Seth Rich's Family

Seth Rich - Publicity - H 2017
Courtesy of the Democratic National Convention

The parents of slain Democratic National Committee staffer Seth Rich have found it no easier to sue over a false story about a deceased loved one than those who have previously tried. On Thursday, a New York federal judge granted Fox News' motion to dismiss the lawsuit brought in March by Joel and Mary Rich.

After Seth Rich was fatally shot in July 2016 in what police said was a mugging that turned deadly, conspiracy theorists suggest that he was the one responsible for leaking DNC emails to WikiLeaks. This conspiracy has proved irresistible to some Trump supporters because if Rich did it, then it wasn't the Russians, and there was no collusion.

In May 2017, Fox News ran a story about Rich based on the family's hired investigator, Rod Wheeler, who supposedly had a source at the FBI saying emails were sent by Rich to WikiLeaks. After the story came out, the Rich family issued a statement condemning the article. Fox News retracted the article and promised an investigation but never apologized.

In their lawsuit, the Riches say they experienced post-traumatic stress disorder because of the reports and attempted to hold the network, its reporter Malia Zimmerman and contributor Ed Butowsky liable for intentional infliction of emotional distress (IIED), tortious interference with the Riches' contract with Wheeler, and negligent supervision.

"Plaintiffs' allegations fall short of stating a claim for IIED," writes U.S. District Court Judge George B. Daniels. "It is understandable that Plaintiffs might feel that their grief and personal loss were taken advantage of, and that the tragic death of their son was exploited for political purposes. However, a general allegation that Defendants had an 'agreement to collaborate against' Plaintiffs cannot form the basis for an IIED claim; rather, specific instances of each individual's conduct are required."

The judge adds in the order (read in full here) that even if statements in the article about the FBI report were false, such false statements "do not rise to the level of extreme and outrageous conduct."

Most important, at least in terms of legal analysis, Daniels echoes the point made in the past by numerous other courts that one can't defame a dead individual. He says that the "crux" of conduct attributed to Fox News is defamation and that Rich's parents cannot "circumvent the restrictions on defamation claims by styling their defamation claim as one for IIED. Moreover, the statements Plaintiffs identify concern Seth Rich, not Plaintiffs, and it is well settled that under New York law, 'libel or slander upon … a deceased person which makes no direct reflection upon his relatives gives them no cause of action for defamation.'"

As for the tortious interference claim and the assertion that Wheeler was pushed into breaking confidentiality obligations, the judge notes how the Riches allege in the complaint that Wheeler was treating Fox News as his client rather than the family.

"Thus, from the very beginning of his relationship with [the Rich family], Wheeler lacked a good faith intention to carry out [his] material obligations in his agreement with them," the judge writes. "Accordingly, Plaintiffs' tortious interference claim must be dismissed."

In a separate decision today, Daniels rejected a defamation lawsuit brought by Wheeler against Fox News. The judge doesn't see anything specifically attributed to Wheeler that's capable of being proved false. Even if the statements in the story were untrue, adds the judge, it's not defamatory because all that is stated in the article was what Wheeler's "investigation shows."

Nevertheless, the judge did take a shot at the investigator.

"In this case, [Wheeler] and [Fox News] embarked on a collective effort to support a sensational claim regarding Seth Rich's murder," he writes. "Plaintiff cannot now seek to avoid the consequences of his own complicity and coordinated assistance in perpetuating a politically motivated story not having any basis in fact."