Tort Liability, Incitement and Fox News

There’s a reason some of us never gave a thought to becoming lawyers. We know a torte is one of those fancy Austrian things made of many thin layers of dense, rich cake, sandwiched together with achingly sweet cream filling between the layers – you listen to Strauss waltzes and stuff your face and all is right with the world. In fact, a torte might be the culinary equivalent of a Strauss waltz. How that Viennese fellow, Freud, managed to deal with tortes, what with his full beard, is a mystery.

But lawyers talk of torts, and a tort is a civil wrong – it involves a breach of a duty owed to someone else, as opposed to criminal wrongdoing which involves a breach of a duty owed to society – wrongdoing like rape, robbery and murder, where it’s the State versus the wrongdoer. So torts are civil wrongs, other than breaches of contract, which is another matter entirely – and tort law is kind of a remainder category of civil wrongs once other specific wrongs are excluded, and has to do with things like auto accidents, false imprisonment, slander and libel, product liability and environmental pollution. That last item is the wonderful world of Toxic Torts. And that’s a great construction. One thinks of dessert of in Vienna of course, when one is not thinking of BP and the Gulf oil spill disaster. All torts, and tortes, are a bit toxic. But in civil law you need a system to cover a wrongful act for which damages can be sought by the injured party. That’s tort law.

At least that seems to be the general idea. So of course Shirley Sherrod says she’ll sue Andrew Breitbart – after all, he posted that severely edited videotape of her speaking to the NAACP to prove she was a racist and the NAACP loved her for being a racist, and that proved our new black-led government was racist too, as she worked for the USDA and that showed that since Obama took office the government is out to screw white folks, and that in turn meant that no one in the Tea Party was racist at all, or something. His message wasn’t that clear, but the tape he was flogging cut off the part that showed she was in the middle of explaining that one can overcome racism, and should – she did, twenty-four years ago, which is what she was talking about. So Fox News ran with the tape wall-to-wall, with all the on-air folks saying something like see, these black folks now in power are out to get all us white folks after all, and here’s the proof. And the other news media couldn’t ignore Fox News – the last thing you want to do is be seen as being too stupid and lazy to cover a major story, one that you missed entirely. So this went wide, as they say.

Of course, every family has its back sheep, and at Fox News that’s Shepard Smith – “We here at Studio B did not run the video and did not reference the story in any way for many reasons, among them: we didn’t know who shot it, we didn’t know when it was shot, we didn’t know the context of the statement, and because of the history of the videos on the site where it was posted, in short we do not and did not trust the source.” Smith pretty much said Breitbart was a dangerous clown and he’d have nothing to do with him – and then the right came down on Shepard Smith hard, as a traitor to the conservative cause.

Shepard Smith has it right of course. This was a hit job. And the USDA forced Shirley Sherrod to resign. And then everyone realized they’d been had – minimal investigation straightened matters out about what she had been saying, and she was offered an apology and a better job, and even Fox News’ Bill O’Reilly apologized on air, saying he hadn’t done his homework – and then went on about how Shirley Sherrod had always been a long-time liberal activist and you don’t want such people working in the government and they’d be crazy to take her back. But it was an apology, of sorts.

But does Shirley Sherrod have a case against Andrew Breitbart? Was what he did a wrongful act for which damages can be sought by the injured party, or just a wrongful act where seeking damages is absurd, as this woman had an uncomfortable day or two but in the end was offered an even better job? What damages can she seek? There were no damages – just fifteen minutes of fame and a chat with the president, where he said nice things to her, and a cool new job offer.

And there is why some of us never gave a thought to becoming lawyers. You cannot use the law to deal with people who lie and tell the world you’re an awful person – and who have a major news organization at their beck and call to make sure all of America hears what you claim – if the attacker, intending massive damage, is exposed as a laughable unhinged lying blowhard. No harm, no foul – and no justice. Fox News will no doubt continue to use Andrew Breitbart for his valuable scoops – scoops that make CNN and the rest seem oblivious to what is really going on in America. They’ll just be a bit more careful for a time – maybe a week or ten days, until the dust from this one settles. Here the law is no help, as justice is not the issue. The law is the issue. Those are two different things.

And thus Andrew Breitbart is quite safe, and will soon once again be Fox News’ go-to guy for what’s really going on out there – the blacks taking over America, or the Muslims, or someone, along with their annual report on the War on Christmas, if not Christ himself. That’s what Fox News does. Breitbart is a source for them on certain matters. And who can sue for damages? What damages?

But there is the matter of incitement – “the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.” But there is no such thing in the law any longer. Incitement is no longer a crime – in October 2008, when Part 2 of the Serious Crime Act 2007 came into force, it was replaced with three new statutory offences of “encouraging or assisting crime.” It got more complicated – the inciter must intend others to engage in the behavior constituting an offense, including any consequences which may result, and must know or believe or suspect that those others will have the relevant nasty intention to do the deed. In short, you can say it would be good for America if some patriot, some Real American, assassinated Obama – or Keith Olbermann or Paris Hilton or LeBron James for that matter – but say you really didn’t intend that anyone really do such a thing. It was just a passing thought, and that’s not incitement – just an opinion – and it’s not your problem if there are crazy people out there. You are not responsible for their mens rea – that’s their problem. And free speech matters. You should be able to say what you think.

But there can be damages. Consider the Washington Post’s Dana Milbank highlighting Glenn Beck’s obsession with condemning the Tides Foundation – which may have had consequences:

Late on a Saturday night two weeks ago, an unemployed carpenter packed his mother’s Toyota Tundra with guns and set off for San Francisco with a plan to kill progressives.

When California Highway Patrol officers stopped him on an interstate in Oakland for driving erratically, Byron Williams, wearing body armor, fired at police with a 9-mm handgun, a shotgun and a .308-caliber rifle with armor-piercing bullets, Oakland police say. Shot and captured after injuring two officers, Williams, on parole for bank robbery, told investigators that he wanted “to start a revolution” by “killing people of importance at the Tides Foundation and the ACLU,” according to a police affidavit. His mother, Janice, told the San Francisco Chronicle that her son had been watching television news and was upset by “the way Congress was railroading through all these left-wing agenda items.”

To confirm see this and this – and you’ll see this was run-of-the-mill stuff, but for one thing Milbank flags:

But what television news show could have directed the troubled man’s ire toward the obscure Tides Foundation, which sounds as if it’s dedicated to oceanography, or perhaps laundry detergent, but which is in fact a nonprofit that claims to support “sustainability, better education, solutions to the AIDS epidemic and human rights”?

Look at their website – they’re protect-the-environment folks, and a clearing house for grants. They worry about pollution and global warming and think cap-and-trade legislation, or maybe a tax on carbon omissions, might help a bit. They fund scientific studies on such things. This too is run-of-the-mill stuff. And Milbank is right, they are obscure. Or they were obscure, until the San Francisco shoot-out:

A week after the incident, the mystery was solved. “Tides was one of the hardest things that we ever tried to explain, and everyone told us that we couldn’t,” Fox News host Glenn Beck told his radio listeners on Monday. “The reason why the blackboard” – the prop Beck uses on his TV show to trace conspiracies – “really became what the blackboard is… is because I was trying to explain Tides and how all of this worked.”

Beck’s thing is that Tides is the one key element in the ongoing socialist attempt to seize power and destroy capitalism, and he says there’s a full range of enemies of America and capitalism who all have “ties to the Tides Center” – George Soros and William Ayers and so on. He uncovered it all. He’s trying to wake us up to the hidden root of all that is going on to destroy our country. And he said he savored the fact that “no one knew what Tides was until the blackboard.” He was very proud of his work.

And Milbank notes that Beck soon found himself on a roll, even if a somewhat solitary one:

For good measure, Beck went after Tides again on Fox that night. And Tuesday night, Wednesday night and Thursday night. That’s on top of 29 other mentions of Tides on Beck’s Fox show over the past 18 months (two in the week before the shootout) according to a tally by the liberal press watchdog Media Matters. Other than two mentions of Tides on the show of Beck’s Fox colleague Sean Hannity, Media Matters said it was unable to find any other mention of Tides on any news broadcast by any network over that same period. Beck declined comment.

The Media Matters item is here – it’s long, as it offers the date and time and content of all thirty Beck segments on Tides, and the two from Hannity, with links to the original sources. It’s a tedious read, but it certainly happened – and only on Fox News.

And that was the problem. This time the rest of the news media did ignore Fox News scooping them. Maybe the last thing you want to do is be seen as being too stupid and lazy to cover a major story, one that you missed entirely, but maybe you do want to pass on some stories. This seems to be one of the few times Fox News wasn’t able to manufacture A MAJOR BREAKING NEWS STORY! But at least they tried.

But, with the shoot-out, where the guy was headed over to the offices of the Tides Foundation to kill them all, was this incitement, as it has now been redefined? Milbank thinks Beck had dodged the bullet on that charge, so to speak:

It’s not fair to blame Beck for violence committed by people who watch his show. Yet Williams isn’t the only such character with a seeming affinity for the Fox News host. In April 2009, a man allegedly armed with an AK-47, a .22-caliber rifle and a handgun was charged with killing three cops in Pittsburgh. The Anti-Defamation League reported that the accused killer had, as part of a pattern of activities involving far-right conspiracy theories, posted a link on a neo-Nazi Web site to a video of Beck talking about the possibility that the Federal Emergency Management Agency was operating concentration camps in Wyoming. The killings came after Beck told Fox viewers that he “can’t debunk” the notion that FEMA was operating such camps – but before he finally acknowledged that the conspiracy wasn’t real.

Still, it was just free speech. Beck never said go kill all the folks at the Tide Foundation, because they are at the center of the plot to destroy your country. He just said they are at the center of the plot to destroy your country. And he never said anyone in Pittsburgh should kill cops – he just said they were coming to take your guns away, and take you away, to a FEMA concentration camp. Everyone is a free agent. He committed no crimes. He just mentioned what worried him.

But Milbank suggests something odd is going on here:

Beck has at times spoken against violence, but he more often forecasts it, warning that “it is only a matter of time before an actual crazy person really does something stupid.” Most every broadcast has some violent imagery: “The clock is ticking….The war is just beginning…. Shoot me in the head if you try to change our government…. You have to be prepared to take rocks to the head…. The other side is attacking…. There is a coup going on…. Grab a torch! Drive a stake through the heart of the bloodsuckers…. They are taking you to a place to be slaughtered…. They are putting a gun to America’s head…. Hold these people responsible!”

Beck has prophesied darkly to his millions of followers that we are reaching “a point where the people will have exhausted all their options. When that happens, look out.” One night on Fox, discussing the case of a man who killed ten people, Beck suggested such things were inevitable. “If you’re a conservative, you are called a racist, you want to starve children,” he said. “And every time they do speak out, they are shut down by political correctness. How do you not have those people turn into that guy?”

Here’s one idea: Stop encouraging them.

But Beck seems to know encouraging them is not criminal incitement in its new form. He can say a revolution is underway – patriots all across America are grabbing their guns and shooting liberals and are in the process of overthrowing this illegitimate government – because they have no choice, and he understands their frustration and they are right to do this, and should – but as long as he does not say go join them, he is guilty of nothing. Some may think that is not right – that’s just not just. But justice and the law are two different things.

Steve Benen is just dismayed by the list that has been growing:

Just this year, John Patrick Bedell opened fire at the Pentagon; Joe Stack flew an airplane into a building; Jerry Kane Jr. and his son killed two police officers in Arkansas; and the Hutaree Militia terrorist plot was uncovered. Last year, James von Brunn opened fire at the Holocaust memorial museum; Richard Poplawski gunned down three police officers in Pittsburgh, in part because he feared the non-existent “Obama gun ban”; and Dr. George Tiller was assassinated. In 2008, Jim David Adkisson opened fire in a Unitarian church in Tennessee, in part because of his “hatred of the liberal movement.”

Let there be no doubt: deranged madmen are responsible for their own violent actions. But in the wake of these attacks, I don’t think it’s unreasonable to wish that some of the leading far-right voices would lower the rhetorical temperature a bit, helping to cool the tempers of those who might be inclined to hurt others.

But you cannot legally compel them to do that, although Benen has a suggestion:

Beck, however, shouldn’t say he has no role here. He’s whipping up a confused and easily-misled mob into a rage, lying to them with deranged theories, and pointing them in a direction. The sooner he shows some restraint, and takes some responsibility for dousing a simmering flame with lighter fluid, the safer we’ll be.

Benen should realize Roger Ailes is laughing at him. Ailes runs Fox News, and used to work for Nixon. And the ratings speak for themselves.

But it’s not just Fox News, as Rand Paul, the senate candidate from Kentucky, was dong a bit of fundraising in Manhattan and there’s this:

Tonight, when Paul finally strides up and takes the microphone in the front of the room, he seems relaxed and speaks to the crowd in a soft and steady Southern accent. “People say, ‘Oh those Tea Party people, they’re angry.’ I say: ‘No, they’re concerned and they’re worried.’ They’re worried that we could destroy the currency by adding such a massive debt.” Paul then invoked the Nazis: “In Germany it led to Hitler.”

In the same soothing country doctor drawl, Paul begins to make the kind of argument that’s caused some political commentators to question his sanity. But this time it isn’t about liquidating the Federal Reserve, vanquishing the Department of Labor or new limits on the Civil Rights Act of 1964 – all topics Paul has argued for in the past. Instead, Paul warns that deficit spending will lead to the same kind of chaos that allowed Hitler to rise to power.

“That can happen in a civilized country,” Paul says. He continues on, saying that in order to avoid a similar fate we must stop “spending and spending” and create an alternative future.

The crowd went wild and Benen adds this:

As a substantive matter, Rand Paul is spewing idiocy. Our debt, created by Paul’s Republican friends, is not destroying the currency and won’t lead to American fascism. The very idea is so blisteringly stupid it’s hard to believe anyone arguing this publicly could ever be taken seriously again.

And therein lies the real problem. Paul’s Hitler rhetoric is offensive and disturbing, but it’s also the kind of rhetoric that would have permanently discredited a Senate candidate up until fairly recently. Such radicalism was simply considered beyond the pale of what’s acceptable in the American political mainstream.

Rand Paul, however, remains the frontrunner in Kentucky, no matter how crazy he is.

Well, there’s no law against crazy. You say there ought to be a law? Maybe there ought to be, but that why it’s best that you never gave a thought to going to law school. You’re looking for justice, not law.

But looking for justice is a dangerous business. Everyone has a different idea of what justice is – so we stick to the law. It will have to do.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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2 Responses to Tort Liability, Incitement and Fox News

  1. Don says:

    Nice blog! Intelligent commentary. Keep going. Sorry you’re relatives are right wing fools.

    • justabovesunset says:

      I appreciate the sympathy, but it is misplaced. They are family, and good people. We just disagree. And I will soon delete your comment and this reply, as it seems to be an effort to get my readers to link back to your commercial site. Advertise elsewhere.

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