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Did Fox News defame Nina Jankowicz? Lead counsel Upper Seven Law's Rylee Sommers-Flanagan explains the lawsuit
Sommers-Flanagan is the founder and executive director of the Helena-based non-profit firm.
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Although the non-profit firm Upper Seven Law in Helena may soon challenge some of the bills passed during the 2023 Montana Legislature, they’ve got a separate, wider-reaching case on their hands as well: on Wednesday, May 10, the firm announced that they will serve as lead counsel in a new defamation suit against Fox News.
Less than a month after Fox News settled a defamation lawsuit with Dominion Voting System for $787 million, Nina Jankowicz—the researcher and former head of the short-lived Disinformation Governance Board within the Department of Homeland Security (DHS)—has filed a separate lawsuit against Fox.
The lawsuit alleges three major falsehoods pushed by Fox: 1) that Jankowicz “intended to censor Americans’ speech,” 2) that she was fired from her position with the federal government (as opposed to resigning) and 3) that she “wanted to give verified Twitter users, including herself, the power to edit others’ tweets.”
Upper Seven will work with local counsel in Delaware, where Fox is incorporated, as well as the New York-based firm Pollock Cohen.
Defamation is a high bar to clear, and the case addresses a question central to journalism itself: where does mean-spirited coverage end, and defamation begin?
I’m so thrilled that Rylee Sommers-Flanagan, the founder and executive director of Upper Seven, was up for a chat to offer her perspective on the case.
Read on to learn more about the team’s evidence against Fox, the alleged role of Russian bots in the case and why Rylee views Fox hosts’ actions in the case as a “fundamental attack on democracy.”
** Look out for a separate interview with Rylee coming this week, focused on Upper Seven’s plans to challenge bills passed by the 2023 Montana Legislature. **
Max: So how did Upper Seven become involved in this case?
Rylee Sommers-Flanagan: We were connected with Nina through a network of people who know that we have been doing some research on potential claims against Fox News, generally. It was our honor to be introduced to her.
She’s done incredible work against disinformation. Nina is a disinformation expert, she's a Russian disinformation expert. And in a lot of ways what we saw—and we'll see how it unfolds over time—[was that] Nina was the target of a disinformation campaign that I think in a lot of ways is a fundamental attack on democracy.
She is somebody who is helping the public sphere figure out ways to respond to the efforts of nations like Russia and other adverse people in the world. They have disinformation machines. Nina’s job within the US government was to help coordinate responses to that type of disinformation that was coming from adversarial nation states.
I think that the way in which Fox News went after her parroted a lot of talking points that were coming straight out of Russia. While it may be the case that [certain employees of Fox] are simply useful idiots who really did the bidding of the Russian media because it was beneficial to them, the sort of ultimate effect is the same, which is that the Russian disinformation machine was able to oust a person who would've…potentially held their feet to the fire in thoughtful ways.
From our perspective, Nina Jankowicz has a great defamation claim against Fox News. The basics of a defamation claim are that you say things that are untrue about someone that are damaging to them. And when you have a person like Nina who is a public figure, those statements need to not only be false and damaging, but the intent behind them needs to have what's called actual malice [in other words, that the defendant knew they were spreading false and damaging statements or demonstrated a reckless disregard for the truth].
Breaking down the alleged falsehoods in the complaint
There are three categories of lies that we have highlighted in our complaint.
One is saying that she was censoring American speech and saying that that's what she had been hired to do. They repeated it so many times, over and over again.
And then there's a related claim, which [involves] a manipulated video. It was very obviously manipulated. An anonymous Twitter user had posted a video of a Georgia librarians’ Zoom meeting. It was a 90-minute video. And at one point in the 90-minute video, Nina is asked about a new feature on Twitter [which was] called Birdwatch at the time and now is called Community Notes.
And the question [someone asked Nina] was essentially, how does this work? What is this? Nina's answer was pretty darn clear. It was like, “Here's what it is. I'm skeptical about whether that's an effective way to manage these things,” and then moving on.
And so what happened was, the Twitter user truncated the video pretty significantly, and made it look like Nina was advocating for Birdwatch, that it was her idea, and that she was hoping to use it to censor people's tweets, to edit their tweets specifically. [Note: that’s the second alleged category of falsehoods.]
Fox News picked up the video directly from this person's Twitter feed. Their Twitter bio says that they are a video editor. [Fox] picks it up, they truncated it even further, and then they proceed to broadcast it repeatedly.
So they would play snippets of it [within] these broadcasts where they were ridiculing her and then insisting that she was out to edit all of our tweets and to silence Americans. In response, she faced an onslaught of egregious death threats and insults. She was doxxed. Threats were made against all of the members of her nuclear family. She was also on the verge of giving birth. She was nine months pregnant.
She resigned from her position on May 18th, 2022. She resigned because of what Fox was doing to her and because the response of people who watched Fox was to go after her so viciously.
[As for the third category of falsehoods, hosts] Jesse Watters and Tucker Carlson said that she had been fired and basically said that she was fired because of how embarrassing her personal video tweets were; she's sort of a musical theater nerd.
They would play [one of those videos] on repeat. And basically Tucker Carlson said that she was so embarrassing that DHS had to fire her. But the truth is that DHS actually offered to keep her on in a different capacity. Nobody wanted to get rid of Nina. She was just being assaulted by Fox and their gang of followers that descended on her.
The firing comments, they're defamation, they're really egregious comments. Tucker Carlson and Jesse Watters were fully aware that she had resigned from that position and they just wanted to say something. They were just twisting the knife, you know?
Nina Jankowicz is a pretty impressive human being and somebody who has been targeted because of her potential to make things more difficult for an entity that would like to attack our democracy. And so they attacked Nina Jankowicz because she had the possibility of weakening them.
To prove actual malice, you have to be able to show that the other party knowingly did something untrue, right? How will you go about finding that evidence?
So the standard is either [that] knowledge or reckless disregard for the truth. So you don't have to actually prove that they one hundred percent knew that what they were saying was wrong.
There is evidence on the air: Jesse Watters acknowledged that she had resigned and not been fired, before he actually said that she had been fired.
The network repeatedly referred to her as having resigned, because that was accurate.
And in these moments when they were really going after her hard, that's when they said these [false] things. It was playing to their extremely vindictive narrative.
The bottom line is, you're not allowed to do that. It's not okay.
[Per the video], I can't imagine a journalist who is adhering to their code of ethics finding a video on Twitter that has been obviously edited by someone who is a self-professed video editor, and taking that and using it as evidence.
This is a moment where I would point to the Dominion filings. We know that Fox has this room called the “brain room.” It's a room where they fact check.
One of the claims in “Dominion” was that the people who work for these correspondents fact-checked nineteen of the twenty-two things that are alleged to have been false actionable statements and said they were false. And then hosts and reporters proceeded to go on the air and say those things despite the fact that their own research team had identified them as false.
I would have a really hard time believing that they did not know that a longer accurate version of that video existed.
One other fact that's kind of wild is the AP actually came out with a fact-checked article and they identified that video as being problematic because it lacked context and it was extremely misleading in the way that it was presented, and Fox proceeded to refer to it at least two more times after that article [was published].
How else will the Dominion case do you think influence this one?
I think the Dominion case is hugely helpful, but there's a difference between a company suing for defamation, and an individual. It's a little bit like comparing apples to oranges, [although] the legal theories are similar, and the truths about what we know now that goes on within Fox, those are gonna be true as well.
They're really helpful pieces of information for us to have because they reveal stuff that I think all of us suspected was going on, but we have a lot more certainty about that now.
I also think that the reality of Nina's case and potentially others that are out there, they were coming anyway because Fox News has been playing fast and loose with the truth in order to improve their own bottom line for a long time.
They have intentionally chosen to pursue false narratives in order to increase their own profits and absolutely at the expense of individuals. And in the case of Nina, they singled her out and they went after her. They talked about her more than 300 times between April and December of 2022.
This is a person who was specifically targeted. My guess is that it's a feedback loop. We don't a hundred percent know, but it looks an awful lot like a feedback loop to Russian bots that make it profitable to say these things, to increase the ratings coming right back to Fox News, who then doubles down because it's really working for them, regardless of what is true.
This conversation has been lightly edited for length and clarity
Thanks so much for being here. We’ll be back with more from Rylee this coming week! In the meantime, you can always reach me via email, the comment section below, or on the Elon Machine, @SavageLevenson.