Fox News' Retracted Seth Rich Conspiracy Theory Story Unlikely to Spark Lawsuit

Speculation about the DNC staffer's death has prompted not only a retraction, but also calls for advertiser boycotts and an op-ed by his parents.
Courtesy of the Democratic National Convention

When a man dies, the right to take someone to court for defamation of his character dies with him — leaving little recourse for families like that of Seth Rich. 

Rich was shot in the back in D.C. last July, while employed by the Democratic National Committee. On May 16, Fox News ran a story alleging that the staffer had leaked thousands of internal DNC emails to WikiLeaks. The story doesn't explicitly link Rich's murder to the allegation that he was the source of a leak appearing to show that party officials were conspiring against Bernie Sanders — but it does note that the "botched robbery theory" hasn't panned out and whoever shot Rich didn't take his wallet, cellphone or other valuables. 

The Washington Post on May 23 published an op-ed written by Rich's parents, who asked the conservative media to "stop politicizing" their son's death. "We have seen no evidence, by any person at any time, that Seth’s murder had any connection to his job at the Democratic National Committee or his life in politics," it says. "Anyone who claims to have such evidence is either concealing it from us or lying."

That same day, Fox retracted its article saying it "was not initially subjected to the high degree of editorial scrutiny we require." The network's host Sean Hannity, however, indicated he's not going to drop the subject forever. "Out of respect for the family's wishes, for now, I am not discussing this matter at this time," he told his viewers Tuesday evening. Hannity also wrote on Twitter that he's "working harder than ever to get to the truth the family wants and deserves." The anchor is currently on vacation, amid calls from advocacy groups for advertisers to boycott his show. 

While public backlash has been swift, experts say there probably won't be any legal ramifications in response to Fox's story about Rich. 

After all, there's one glaring, insurmountable legal hurdle. "The right of defamation dies with the individual," says litigator Neville Johnson. "The person’s family doesn’t really have any right of defamation."

Trying an end-run with claims like invasion of privacy or infliction of emotional distress likely wouldn't work, either.

Johnson says few have tried to sue on behalf of departed loved ones since Errol Flynn's daughters took biographer Charles Higham to court in the '80s over his claims that their dad was a Nazi spy. Both the trial and appellate courts sided with Higham. 

"The courts have uniformly said you can’t get around that rule by pleading it in a different way," says Jeremiah Reynolds of Kinsella Weitzman. "I don’t really know how [the Riches] could come up with a claim. It’s a shame because it’s really a pretty egregious case." 

It would make an effective media law class hypothetical, according to Fox Rothschild litigator Lincoln Bandlow, who teaches at USC and says the network's decision to retract the story was likely rooted in journalistic integrity and not fear of legal liability. "In a post-Rolling Stone verdict environment, you don’t want to be a news organization that looks like it’s standing by questionable or disputed sources," he says, referencing the 2016 jury who found the magazine liable for defamation after it retracted a story about an alleged gang rape at a University of Virginia fraternity. 

News outlets, or individual personalities like Hannity, that intend to keep pursuing this story would be wise to leave the staffer's family out the picture, though. 

"If there’s a statement that somehow references the family itself, that’s the key," says Bandlow. "If the story veers into 'the family knows this was a DNC murder hit and they’re keeping it covered up,' then you’re going to have a problem."