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You Can Safely Bet That Hannity Won’t Sue the New York Times. If He Does, He’ll Lose.

LAS VEGAS, NV - SEPTEMBER 20: Fox News Channel and radio talk show host Sean Hannity reacts to attendees before a Donald Trump campaign rally at the Las Vegas Convention Center on September 20, 2018 in Las Vegas, Nevada. Trump is in town to support the re-election campaign for U.S. Sen. Dean Heller (R-NV) as well as Nevada Attorney General and Republican gubernatorial candidate Adam Laxalt and candidate for Nevada's 3rd House District Danny Tarkanian and 4th House District Cresent Hardy. (Photo by Ethan Miller/Getty Images)

Since we’re all talking about Sean Hannity’s non-lawsuit (to date) against the New York Times (not to mention the two-sentence responsorial burn), I’d like to point out that this whole thing looks like nothing more than Hannity’s attempt to cover his own rear end by developing a garbage PR narrative. His damage control is, in my opinion, completely unnecessary. Fox News is fairly being criticized for its coronavirus coverage; however, it’s pretty unlikely that Hannity is going to end up on the wrong side of a court judgment over his broadcasts. Still, though, like many a person accused of public wrongs, Hannity seems hell-bent on deflecting negative attention by accusing the Times of victimizing him.

We’ve all got some extra time while on quarantine, so let’s dissect this a bit.

First, the backdrop

Fox News is defending itself against a lawsuit filed by an activist group that blames the network for minimizing the public health risks of the coronavirus in its coverage. Dangerous, in my opinion, as Fox’s COVID misinformation campaign has been, the lawsuit shouldn’t be all that worrisome for the media giant. As my colleague Aaron Keller discussed in late March, it’s very difficult to wage a lawsuit against a news entity. People’s own actions generally constitute “superseding events” which break any causal chain between broadcasters’ misdeeds and any damage sustained as a result of having tuned in. That’s why idiots who are injecting themselves with Lysol wouldn’t have a case against the president even if he weren’t immune.

That is the legal landscape. I can only assume that Fox’s PR department is looking at coronavirus-related criticisms as danger zones, despite the fact that the law weighs largely in the network’s favor; Hannity’s threat letter to the Times seems like just the kind of thing Fox’s crisis-control publicists would suggest as damage control.

The Times Story

On April 18, the Times published a story entitled “A Beloved Bar Owner Was Skeptical About the Virus. Then He Took A Cruise.” It told the tale of Joe Joyce, an otherwise healthy 74-year-old man who discounted the advice of his adult children to take coronavirus seriously based — allegedly, at least in part — on having watched Fox’s coverage. Believing there was nothing to fear, Joyce cruised to Spain, contracted coronavirus, and died from the virus. According to the article, Joyce’s family contends that he might have taken warnings more seriously if not for Fox’s minimization of the public health risks.

Hannity’s Demand and the Times Response

The Times piece must have made Sean Hannity squirm a bit, because he hired Charles Harder (of Gawker and Trump fame) to threaten the Times with a lawsuit unless it retracted and apologized for the Joyce story.

Over the course of 12 pages, Harder, on behalf of Sean Hannity individually, whined about the Times‘ inaccurate reporting of the order of events in its piece about Joe Joyce. Hannity hadn’t been wrong on coronavirus, Joyce hadn’t based his decision to travel on anything Hannity said, and whatever Fox did, CNN, WaPo, and Nancy Pelosi had already done first. The letter argued that the New York Times got the timeline wrong: a statement made by Hannity downplaying the crisis, which was included in the Times piece, was broadcast after Joyce left on the cruise.

On Monday, Hannity discussed the matter on his show by saying the New York Times was “accusing the president and even yours truly pretty much of murder — killing people who passed away from the coronavirus — when nothing could be further from the truth.”

Hannity went on to explain that he’d hired Harder. He said of the Times:

“What they wrote was false, it is provably false and rather than do the ethical, honest, journalistic thing, which would be correct and then that’s to retract and apologize, what they do, they secretly stealth-edited their mistake. To me, an admission of guilt. And the stealth addition, by the way, rendered their phony headline false. More evidence of wrongdoing.

But let’s be clear, there is no lie the mob and the media won’t tell, no slander they won’t spread, no hoax too insane to pass off as actual news.

When I said journalism is dead and buried in 2007, I thought I was right. I had no idea how right I was.”

The Times was completely nonplussed by Hannity’s blustery demands. It responded with a comically-brief refusal to retract its story.

Speaking of “inaccurate reporting,” though, Hannity’s own website at one point characterized his demand letter as proof he’d actually sued the Times. To date, there’s still no record of any lawsuit, nor has Charles Harder responded to Law&Crime’s inquiry as to whether he will actually be filing a lawsuit in light of the Times’ hard “no” on retraction and apology.

While it’s still possible that Hannity could file a lawsuit against the Times, such a move would be ill-advised at best. A defamation lawsuit over the Joyce story would be nearly impossible to win, and lawyers are legally prohibited from filing frivolous lawsuits.

What Hannity Would Need to Prove

A defamation claim requires a “false statement of fact” which caused Hannity “actual damages.” Plus, because Hannity is clearly a public figure, he would need to prove that the Times acted with “actual malice” when publishing those false statements – which is a high legal bar. Hannity would need to prove that the Times actually knew that the Joe Joyce piece contained falsehoods and that it published the piece with reckless disregard for the truth or falsity of those statements.

None of that is actually going to happen, no matter how loudly Charles Harder yells “Gawker!”

For starters, the Times piece mentions Sean Hannity solely to say that Joe Joyce watched Hannity’s coverage of coronavirus on Fox and was influenced by that coverage. Hannity’s characterization that the Times accused him of “murder” is hyperbolic. Hannity’s broadcasts speak for themselves; while Harder may have accused the Times of mischaracterizing Hannity’s coverage, the only time Hannity is even mentioned in the Times piece is when he was directly quoted. None of that even has potential to count as a false statement of fact about Hannity.

Joyce’s family may believe he was influenced by what he saw on television, and Hannity may believe otherwise. Those are “questions of fact” that would need to be resolved by a jury after weighing all the evidence. However, those facts go to the issue of causation — whether something Hannity said caused Joyce to contract coronavirus. As I said earlier, causation in that context would be nearly impossible to prove.

The bigger problem here is that defamation claims require a specific statement of purported fact about Hannity that is false. Hannity alleges that the Times‘ timeline is false, and that the broadcast in question didn’t occur until after Joyce decided to board a cruise.  Again, that would be relevant to the already-weak case for legal causation. However, the case would never get that far, because there simply was no false statement of fact about Hannity published by the Times. The timeline — what Joyce watched, and how it influenced him — is about Joyce — not about Hannity.

Harder’s letter to the Times alleges that Hannity spoke to the Times before publication to set the record straight about the timeline. (Here’s Hannity’s version, straight from his own mouth.) If Hannity’s version is true, I get why he’s miffed. But not every misdeed — not even every falsehood — amounts to defamation. If Hannity is going to cast himself as a tort victim, he’s going to need to prove that a false statement was made about him — not about what another person did.

Furthermore, to support a defamation claim, the falsehood must be one that is objectively negative and thereby causes the victim financial damages. Suggesting that Hannity downplayed the seriousness of coronavirus fails on both fronts. For starters, there are plenty of viewers who still believe coronavirus to be an overblown liberal media hoax; those folks have likely loved every bit of Hannity’s coronavirus coverage. Those fans matter. The more people like something, the less likely that thing counts as objectively negative.

On the issue of damages, Hannity would need to prove that he lost money because of the Times article. This would require him to invent a hypothetical world in which a loyal Fox viewer read the Times piece, believed Hannity to be responsible for Joyce’s death, and on that basis, stopped watching Hannity’s program. I think we can safely file that under this folder: “not likely.”

So why, if a defamation case is so appallingly weak, would Hannity boast about having filed one?

This appears to be the go-to Fox News crisis-management strategy (which is also a playbook shared by Donald Trump): when revealed to have done wrong, scream defamation. That’s what former Fox anchor Eric Bolling did when he “filed” a lawsuit against journalist Yashar Ali for reporting that Bolling sent unsolicited ‘dick pics’ to coworkers. It’s also what former Fox anchor Bill O’Reilly did when he was accused of harassing one of his producers. Neither of those lawsuits amounted to much more than headlines – which of course, was likely the point in the first place.

Hannity’s attorney, Charles Harder, has really honed the defamation-accusation-as-PR-maneuver in recent years. Harder, who counts President Trump as a repeat client, has sent many a laughable threat letter to those who vocally disagree with the president – including yours truly.

Moreover, Harder may choose to see just how far Hannity v. Times might get. After all, if provable, it wouldn’t look great that the Times erroneously reported the timeline of events after speaking with Hannity. That wrongdoing might be enough to help a case get past the pleading stage. Almost certainly, it would fail thereafter for the reasons I’ve discussed above. In other words, even if there is actual malice (legally, that means the reporters disregarded truth), there likely will be neither provable damages nor false statements of fact that are directly about Hannity.

Hannity, though, appears utterly unperturbed by the obvious weaknesses in his imagined lawsuit. In fact, in his mind, he appears to have already won.

Editor’s Note: This piece has been updated for purposes of clarification.

[Photo by Theo Wargo/Getty Images.]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos