Precedence
The law is really all about stories of the past. The decisions made by jurists long dead still influence our law today. The origins of the American legal system goes all the way back to the English Courts of Assizes, the first circuit judges in the 12th Century whose decisions set precedence that still carry weight in the English legal system, and even here in the United States.
In the 1980’s I spent a brief sojourn at the University of Cincinnati’s Law School where I made it through “Torts” class. “Torts” are damages committed by a person against another. Today it is the basis for many of our civil law suits. On the first day we learned this “story”. In the 13th century, two boys on a hill found almost identical rocks. Being boys, they determined to simultaneously throw their rocks over the crest of the hill. (As a teacher and coach, I found that throwing rocks was a genetic predisposition of boys, not unlike spitting off of bridges, cliffs and overhangs).
So the rocks were launched, soon followed by a cry of pain. The boys raced to the top of the hill to see a man on the other side with blood streaming down his face. A rock struck him in the eye, putting it out.
Neither boy knew whose rock hit the man. Neither did the man himself. But he still took the boys to Court, as it was clear that one of the boys launched the rock that took his eye. And the judge wisely determined that the boys acted with such reckless disregard for the danger of their actions they were BOTH responsible, and the man needed to be compensated for his loss. Each boy’s father had to give the man a pig. There is no record of how the fathers punished their sons.
And there it was: not an “eye for an eye”, but two pigs for one.
Cold, Hard, Cash
The second story is more recent. In a car accident, a young man was paralyzed from the waist down. It wasn’t his fault, but for the rest of his life, he would require special care, including hospitalizations and procedures, to deal with his paralysis. In addition, he would never stand to be married, or “walk his potential daughter” down the aisle. In fact, his ability to create that daughter would be especially arduous.
So there was all the costs of his care, plus all the costs of his suffering. And then then there were limits on how much he could earn. He was seventeen, with a life expectancy of seventy-two years. Add all of those care, suffering, and loss of income together – and those were the damages that his lawyer would ask in court. It was more than two pigs.
What If
Law School is all about “what if”. Alter the facts of a case slightly, and then figure out the impact of the change. So, alter this “equation” just slightly, and make the young man a Division I Football prospect, already signed to a major university. Now his earnings potentials are much greater, and so are the prospective damages. It might not be “fair” to the person who caused the accident – he didn’t “intend” to hit a football star. But he acted in the same “reckless disregard” as the two medieval boys with rocks. And he (or his insurance company) will pay.
The moral that my Torts professor taught us was this: in civil law, the only punishment is money. Courts can’t make others feel the pain and anguish of paralysis, or the loss of an eye. All Courts can do is try to recompense the injured for their damages. And that’s all calculable, in cold, hard, cash.
Libel
Libel is a special kind of a “tort”, and the law is a bit more complicated. It is defined in the legal “Bible”, Black’s Law Dictionary, as a, “Defamatory statement published through any manner or media.” Libel is a lie, that “defames” someone or something. But libel often runs up against the American “black letter law” of the First Amendment, guaranteeing freedom of the press. So if someone goes on the news and tells lies about someone else, they might be subject to libel, but the news broadcaster might not be.
What if a news broadcaster intentionally lies about someone (or something), and does it with full “knowledge aforethought” and malice (the intent to harm someone). Or maybe they have that same reckless disregard for the truth of the two boys throwing the stones. Then they can be held accountable for their libelous statements. And like the poor one-eyed man, or the paralyzed seventeen year-old athlete, the damages are calculable in cold, hard, cash.
We Know
We now know that Fox News broadcasters intentionally, willfully, and with “full knowledge aforethought” lied about the Dominion voting machines in the 2020 election. They did it, because the lies improved their ratings, kept their viewership, and therefore maintained their profits. They not only lied, but they did it for their own financial benefit.
It wasn’t just about Sidney Powell, Rudy Giuliani, and other the sad Trump lawyers appearing on Fox News and telling their lies over and over again. It’s that the Fox News personnel knew that they were lying, and continued to amplify those lies. We have the texts, even recordings, where Fox New personnel acknowledged the lies, and that they were doing it to continue their profits – “malice aforethought”.
Get What You Need
I know that many of those politically “aligned” with me are disappointed today. We were all hoping for a weeks-long flagellation of Fox News by the Dominion lawyers. But yesterday, as the Court prepared for opening statements, Fox and Dominion settled. There will be no weeks of airing Fox News impropriety, no Tucker Carlson on the stand admitting to his lies. But remember, it’s a civil case. No one, not even Rupert Murdock himself, would ever go to jail from this case. So we should take this “win”.
Fox Corporation is going to “for sure” pay Dominion (and its lawyers) $787.5 MILLION. And they’re going to do it soon, not in a few years, but in months. Sure Dominion asked for $1.6 Billion, and there was the potential for even more in punitive damages. But Dominion has the right to determine the “value” of their “eye”. And if $787.5 MILLION makes them “whole” – then good for them.
Fox News may never admit the lie, but they sure as Hell are paying for it. To quote the Stones, “You can’t always get what you want. But if you try sometimes, you just might find, you get what you need.”
