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Ex-Biden official's lawsuit against Fox echoes case that led to big settlement

Nina Jankowicz alleges Fox stars and guests defamed her by viciously mischaracterizing her brief tenure leading the federal Disinformation Governance Board. Her case requires overcoming robust protections for free speech about public officials and politics.
Nina Jankowicz alleges Fox stars and guests defamed her by viciously mischaracterizing her brief tenure leading the federal Disinformation Governance Board. Her case requires overcoming robust protections for free speech about public officials and politics.

Fox News paid $787 million in April to settle a defamation lawsuit over its false claims of fraud in the 2020 presidential elections. The payment was meant to put the matter in the rear view mirror.

Yet it continues to reverberate.

A former Biden administration official's defamation suit against Fox, filed in May, is percolating in a federal court in Delaware. Nina Jankowicz argues the network's stars and commentators repeatedly lied about her, even after being told their claims were false.

Jankowicz was a scholar who focused on the harmful effects of misinformation. She was named to head a new advisory body last year called the Disinformation Governance Board under the Department of Homeland Security, but the board was dissolved soon after in a cloud of controversy. Jankowicz says the ensuing abuse from people misinformed about her actions hounded her out of public service.

In fresh court papers filed late Thursday afternoon, she and members of her legal team draw on the case that Fox settled for inspiration.

The Jankowicz case is likely to test - and be tested by - the muscular federal protections for free political speech about public officials, especially opinion, even when it is distortive or untrue. The standard stems from a 1964 U.S. Supreme Court decision. For Fox to be held liable for defamation, the statements have to be found to be false and damaging, and a jury will have to conclude either Fox knew those statements were false or it had reason to know they were.

"The courts generally recognize the difference between political hyperbole and actually making an objective, factual statement," Rutgers University law professor Ronald Chen says. "She has to show that they were making some objective statement about her that would injure her personal reputation." And because she was being criticized and mocked over matters related to her work, he says, it'll be an uphill legal climb.

Fox has relied in significant part on free speech protections in arguing that the case be dismissed.

"Hosts and guests on Fox exercised their First Amendment rights to join the public debate and voiced their opinions and predictions that the Board and Plaintiff would police speech, be arbiters of truth, and thereby censor speech," Fox's legal team wrote in a motion to have the case dismissed. "In criticizing the government's Disinformation Board and Plaintiff's appointment while warning about censorship, Fox speakers were engaging in core political speech."

Fox let its hosts lie on air even when told of the truth, Jackowicz alleges

Jankowicz's tenure as executive director of the Disinformation Governance Board was brief: all of two months in spring 2022. It ran aground on free speech concerns and right-wing attacks that mischaracterized her position on how to counter misinformation and disinformation, among other things. Her job, she says, was "herding cats" - seeking to enable federal agencies to coordinate a response to harmful and untruthful information. She has previously written that she believes censorship is a wrong and ineffective approach.

Jankowicz's attorneys say the network's stars and commentators repeatedly lied about her, saying she would police what people say and act as the nation's chief censor, even after being told their claims were false. The suit points to Homeland Security Secretary Alejandro Mayorkas's statements in an interview with Fox political anchor Bret Baier and his sworn testimony, as well as then White House press secretary Jen Psaki's remarks to questions from Fox reporter Peter Doocy.

"I do think it's incumbent on news organizations to report facts and not just wild speculation. And that is what Fox did," Jankowicz tells NPR. "Tucker Carlson said things like that I was going to send men with guns to individual Americans' homes when they said things that I didn't agree with."

That was, she says, "not something that was in the purview of the board, was not something I could have done, was not something anybody with anything to do with the board could have done. But this was the sort of fear-mongering that started within 24 hours of the board being announced."

According to the suit, Fox stars and commentators referred to her in dystopian terms as the Minister of Truth, a censor as well as a scold, in 300 segments over the course of eight months last year that lasted well past her government tenure. Jankowicz alleges the network made her the face of its objections to the Biden administration's plans to combat misinformation. And they say it wrongly presented her as having been fired, when in fact she resigned.

Death threats and a stalker

In the new legal filing, Jankowicz's lawyers' are spelling out the chronological connections between the Fox broadcasts and the abuse she received off the air. She received ugly death wishes, a stalker. She and her husband hired private security and a team of lawyers to handle restraining orders. Jankowicz says she decided to leave government because of the grueling pressure and stresses that created.

Her case draws from Dominion, highlighting emails and texts that came to light in that litigation. Carlson and Fox star Maria Bartiromo played prominent roles in that case too. Carlson was stripped of his role as a host little more than a week after the massive Dominion Voting Systems settlement was announced.

In that case, Fox executives and hosts were shown to have broadcast claims about the election that they believed to be false and put on people they did not find credible in order to win back viewers who admired then President Donald Trump. Jankowicz's attorneys also note the Delaware judge presiding over the Dominion case repeatedly questioned Fox's credibility in its legal representations. She has hired one of the local law firms that Dominion relied upon to serve as part of her team.

Fox hires heavy hitter lawyers

Fox successfully had the case shifted from the same state court in Delaware that heard the Dominion case to a federal court there. The network has not commented publicly about her suit, though it rejected her arguments in its court filings. Fox does not accept that her positions or those of the Biden administration were misrepresented, calling them matters of opinion.

As part of its outside legal team, Fox hired heavy hitters, including Trump's former White House counsel and deputy White House counsel. They are leaning heavily on Jankowicz's role, however brief, as a public official, which makes it easier to defend against statements that are hyperbolic or false.

Prior to the Dominion case, a federal judge tossed out a slander suit against Fox and Carlson because "the 'general tenor' of the show should then inform a viewer that [Carlson] is not 'stating actual facts' about the topics he discusses."

One of Jankowicz's attorneys says she will meet that high bar if she is allowed by the federal judge hearing the case to proceed to discovery, the fact-finding part of the litigation that precedes a jury trial.

"When heated coverage goes over the line into false statements, and those false statements of fact have significant consequences who they are about, there are no other constraints that are stopping that kind of publication," says Max Rodriguez, an attorney with the law firm Pollock Cohen that is handling the case. "Defamation [law] is essential where it is appropriate to have guardrails on ensuring those sorts of malicious false statements of fact are not part of our discourse."

Copyright 2023 NPR. To see more, visit https://www.npr.org.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.
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