Fox News filed a motion in federal court on Wednesday asking a federal judge to keep one of their reporters from being deposed in an ongoing civil lawsuit that stems from the octopus-like legal fallout from the network’s retraction of a story about Seth Rich.
A Fox News executive told Law&Crime that this is a First Amendment issue that all news organizations should care about.
“The court’s decision goes into constitutional territory that is significant to all news organizations, and therefore needs to be vindicated for important reasons well beyond the confines of the specific case,” the executive said.
The story here begins with a conspiracy theory pushed by far-right elements that Rich, who worked for the Democratic National Committee (DNC), was gunned down at the age of 27 in Washington D.C. over his alleged but never substantiated connection to the 2016 DNC email scandal.
On May 17, 2017, Fox News breathed life into the conspiracy theory when journalist Malia Zimmerman penned a story headlined, “Seth Rich, slain DNC staffer, had contact with WikiLeaks, say multiple sources.”
The first paragraph of Zimmerman’s piece laid out the thesis:
The Democratic National Committee staffer who was gunned down on July 10 on a Washington, D.C., street just steps from his home had leaked thousands of internal emails to WikiLeaks, law enforcement sources told Fox News.
On May 23, 2017, Fox News retracted the story and issued a statement which noted that Zimmerman’s piece “was not initially subjected to the high degree of editorial scrutiny we require for all our reporting” and had “since been removed.”
A flurry of legal filings followed that retraction and the various parties’ various legal positions eventually snowballed into the current issue before the U.S. District Court for the District of Columbia.
Two weeks ago, conservative U.S. District Judge Richard Leon refused to stop Zimmerman from being deposed in a lawsuit filed by Seth Rich’s brother Aaron Rich against conservative activist and media proprietor Matthew Couch, his outlet America First Media, and frequent Fox News contributor Ed Butowsky.
Aaron Rich is suing Butowsky and Couch for statements suggesting that he was “the technological know-how behind, and financial beneficiary of” the fantasized Rich-WikiLeaks collaboration.
Butowsky is a GOP donor. He’s also the person who allegedly pushed the network to lend their name to the conspiracy theory in the first place. And, he’s definitely the person behind former homicide detective Rod Wheeler offering his services to the Rich family in order to investigate the DNC staffer’s untimely death.
Aaron Rich wants Zimmerman to testify about what she and Butowsky discussed before and after publication–and retraction–of her discredited WikiLeaks-Seth Rich article. Specifically, Rich wants to know what “Butowsky communicated to or from third parties regarding Mr. Rich, but also to determine whether Butowsky acted intentionally or recklessly…when he shifted his narrative to focus on [Aaron Rich] subsequent to the retraction of” Zimmerman’s article.
Butowsky and Couch have both thrown Zimmerman under the bus and stated in court filings that she has “knowledge about her investigation of and the article she wrote” about the murder.
Fox News moved for a protective order that would have barred Zimmerman from being deposed on the basis of the First Amendment and New York State law protecting journalists.
Judge Leon denied the request on the basis that the privilege doesn’t really apply to the issues involved in the case; that Zimmerman had largely waived any such privilege that she might have been entitled to by virtue of her discussions with Butowsky, who is “neither a journalist nor a news source,” according to the judge; and because “Rich has overcome the newsgathering privilege as to certain topics that arguably go to the heart of his claims.”
In a Wednesday filing, Fox News asked for Leon to overrule himself out of concern for the constitutional issues at stake in compelling a journalist to give testimony.
“Reconsideration is warranted because the Court’s opinion adopts an unduly narrow view of what constitutes protected newsgathering and editorial activity that is inconsistent with established precedent regarding the First Amendment privilege and the New York Press Shield Law,” the filing argues. “The Court’s ruling simultaneously takes too broad a view of the bases on which a litigant may overcome these strict privileges, allowing testimony that does not go to the heart of Mr. Rich’s claims or that is available from alternative sources.”
The network and Zimmerman also offered Leon an additional way out by way of a compromise, which would essentially accede to the court’s desire to force Zimmerman to testify as long as he vacates the findings that push First Amendment boundaries. Again the filing, at length:
In the alternative, Fox News and Ms. Zimmerman respectfully request that the Court vacate its ruling on the first two issues—both of which implicate the scope of constitutional protections for newsgathering—and leave them undecided. The Court’s determination that Mr. Rich has overcome the privilege as to certain topics is sufficient by itself to resolve the motion for a protective order. In the event it decides to leave its denial of the protective order intact, the Court should rest its decision on that third and narrowest ground, without determining whether Fox News’s retraction decision is privileged at all or whether Ms. Zimmerman’s communications with Mr. Butowsky constitute a waiver. Those questions concerning scope and waiver of the privilege have constitutional dimension, as well as implications for journalists beyond the confines of this dispute, and they should not be decided unless it is necessary for the Court to do so.
You can read Fox News’s full filing below.
[image via Spencer Platt/Getty Images]
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