6:38am PT by Eriq Gardner
Fox News Says No Defamation in Story Alleged to Include Made-Up Quotes
Fox News and its parent, 21st Century Fox, have responded in court to a defamation lawsuit that alleges they rushed to publish a story misattributing quotes to Rod Wheeler, a former Washington, D.C., homicide detective.
The story in question, written by Malia Zimmerman and now retracted, touted a connection between DNC staffer Seth Rich and WikiLeaks and suggested that Democrats in and outside government may have been obstructing an investigation into Rich's July 10, 2016, murder. According to the suit filed in New York federal court from Wheeler, a Fox News contributor, Donald Trump got an advance look at the story and pushed its publication on the basis it would show the Russians weren't behind the hacked DNC emails published by WikiLeaks.
The Fox defendants are now looking to compel arbitration or have Wheeler's complaint dismissed for failure to state a claim.
A memorandum in support (read here in full) argues that Wheeler has failed to plead special damages as there was nothing contained in those quotes or the articles that they say exposed him to contempt, ridicule, aversion, or disgrace.
Furthermore, Fox argues that other statements Wheeler made on television foreclose a defamation claim.
"Even if Wheeler could otherwise state a claim for defamation, he cannot claim that the alleged misquotations falsely defamed him when he made essentially the same statements, both before and after the publication of the story at issue, on a number of television and radio programs," states the memorandum.
For example, Wheeler is quoted as responding to a Fox 5 reporter's question about whether FBI sources have information that could link Rich to Wikileaks by saying, "Absolutely, yeah, and that's confirmed."
While Fox argues that his contributor's agreement includes a provision that mandates arbitration, another co-defendant in the case, Ed Butowsky, has separately moved to dismiss on grounds of jurisdictional deficiencies and more.
Butowsky, a Dallas-based financial adviser with connections to the White House, worked with Wheeler to investigate Rich's death. On May 14, Wheeler says Butowsky texted him, "Not to add any more pressure but the president just read the article. He wants the article out immediately. It's now all up to you. But don't feel the pressure."
In his dismissal papers, Butowsky says the complaint is riddled with "sensationalistic allegations that have nothing whatsoever to do with this cause of action."
Butowsky also presents omissions like Wheeler's supposed conclusion from a meeting with a D.C. detective that the Rich-WikiLeaks theory of murder couldn't be ruled out. The defendant also says Zimmerman sent Wheeler versions of the story for approval before it ran, and that those versions included the alleged misattributed quotes. Wheeler is said to have texted Zimmerman, "Reading it now. Malia you can add that I do strongly believe that the answers to who murdered Seth sits on his computer on a shelf at the D.C. Police or FBI headquarters!"
Wheeler hasn't sufficiently pled harm from the story, adds Butowsky, while contending that there's no allegation that Butowsky made the defamatory statements. He additionally argues that Wheeler consented to the publication, the statements constitute opinions, and there's no allegation of actual malice.
At 6:30 a.m. this morning, a Fox News spokesperson circulated a copy of Butowsky's dismissal motion with a lengthy statement that echoed many of the points his lawyers had made. She probably meant to include Fox's. Many reporters seemingly assumed this was Fox's own motion, and in a case about misattributed quotes, these reporters then misattributed the motion in tweets and stories. An hour later, at 7:27 a.m., the spokesperson sent out a second email with the Fox News brief. Apparently that wasn't sufficient to settle the confusion, because an hour later, at 8:24 a.m., she sent a third message to reporters that issued clarification and guidance.