Lachlan Murdoch was never much of an inspirational figure in the pantheon of news publishing, having secured his place at the helm of Fox News by a process of primogeniture. His defamation action against Crikey, a relatively modest but worthwhile online subscription news and commentary service, reveals much – about ego, the drift of American politics and media, and defamation law itself.
It seems incongruous that the chief executive of the most watched cable network in the US and co-chairman of News Corp, with its global stable of newspapers, would be so troubled by an opinion piece published down under.
Succour has been added to the calls for an inquiry into the influence in this country of the Murdochs and the concentration of mainstream media voices. The process of pretrial discovery could produce hitherto unknown information about the operations of Fox News that, at the least, prove embarrassing to the proprietors and further fuel a backlash against their corporate interests.
There is a sense among those who have watched the evolving litigation at 10 paces that here is someone whose own very skewed and shouty media organisation can dish it out with impunity, but he can’t take it if a minnow does the same.
It’s not an attractive quality, not that unattractive qualities necessarily tip the balance in a defamation court.
The Crikey article written in June by journalist Bernard Keane has long been forgotten by its readers, which is not to say that it wasn’t well crafted. It discussed the evidence of former White House aide Cassidy Hutchinson to the January 6 House select committee, and in the process Keane made comparisons between presidents Trump and Nixon.
It ended with this paragraph: “If Trump ends up in the dock for a variety of crimes committed as president, as he should be, not all his co-conspirators will be there with him. Nixon was famously the ‘unindicted co-conspirator’ in Watergate. The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
Lawyers for Lachlan Murdoch say the article and related social media posts convey “highly defamatory and false imputations about him”, attributing 14 separate meanings to those words, including: that he illegally conspired with Donald Trump to overturn the 2020 presidential election; illegally conspired with Trump to incite an armed mob with murderous intent to march on the Capitol; was aware of how heavily armed many of the attendees of the rally actually were; has conspired with Trump to commit the offence of treason against the United States; and so on.
Some of these will fall by the wayside as the case progresses, if it does progress, and Crikey will produce some of its own meanings and other defences – including the new and as-yet-untested 2021 defence of public interest reporting.
Despite the reassurance about an improved legal landscape for publishers, there are still plenty of tripwires in the legislation on which a good media case can founder.
Quite apart from a federal court predisposition, which media respondents detect as “chilly”, there is growing judicial impatience with time and resources squandered by cases such as Clive Palmer v Mark McGowan, where “the game has not been worth the candle”.
Peter Bartlett, a seasoned defamation lawyer who has acted for Crikey for many years (although lawyer Michael Bradley is reportedly representing the company in this case), has said that much worse has been published by the Washington Post, the New York Times and the ABC about Fox News propagating Trump’s “big lie”.
So how much damage has Crikey really caused the media heir and beneficiary?
Crikey has mounted a plucky “bring it on” campaign, with advertisements and other articles about Fox News’ “existential threat to US democracy”.
The broadcasting leviathan is going through a difficult readjustment at the moment and this may account for some of the local sensitivity. The network has been backing away from Trump and Lachlan Murdoch has distanced himself from the former president.
While Trump may be on hold, the network still embraces Trumpism – which is its cash cow.
Fox is also confronting billion-dollar US lawsuits over election fraud claims from voting machine technology companies Smartmatic and Dominion. The companies allege Fox News amplified false claims that they had rigged the election so as to deprive Trump of victory at the 2020 presidential election.
Murdochs senior and junior are expected to appear at a deposition hearing this month as part of the applicants’ discovery process.
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It is already well known that Tucker Carlson, the network’s star peddler of false or debunked claims , had been undermining the work of the House January 6 committee – and by that process he implicitly sugarcoats the mob’s violent attempt to overturn the election result.
While Fox Business aired early public hearings of the committee, Fox News refused, instead relying on Carlson’s unfounded claims that federal agents stoked the violence.
The New York Times wrote of Carlson’s Trumpist advocacy: “He has aggressively defended the insurrectionists who stormed the Capitol on 6 January – an attack that Mr Carlson, borrowing the former president’s ‘deep state’ canards, has portrayed as a false-flag operation masterminded by the Federal Bureau of Investigation.”
And: “[Carlson] forged a relationship with Lachlan Murdoch, the Murdoch family’s heir apparent, who would become his most public supporter at Fox.”
Given the astonishing list of Carlson’s false or debunked claims, it is awkward in the extreme for Lachlan Murdoch to keep TV host on his payroll while at the same time claiming himself to be a victim of falsehoods.
At first blush there seems to be plenty of material to mount a strong defence to Murdoch’s claim. And it will be interesting to see how the applicant, hypersensitive as he appears to be, fares under sustained cross-examination.
Quite possibly, this case might lie alongside Wilde v Queensberry, Porter v ABC, Streisand v Adelman – misconceived adventures in reputation repair.
In the meantime, Crikey is not wasting a good defamation case. A campaign sees new subscriptions pouring in and the till filling with fresh cash for the fight ahead.