Can Litigation Help Deradicalize Right-Wing Media?

A little more than a year ago, after I testified about then-President Trump’s misconduct on Ukraine before the House impeachment inquiry, Trump and his allies targeted me and my family for retribution. He questioned my loyalty. He tweeted threats. He suggested to his loyalists that action should be taken against me—a career federal government employee. Trump proxies amplified these themes on television news, internet news, and social media, resulting in risks to my life and my reputation as a public servant.

I’m afraid I did not respond forcefully to the threats and defamation. While the former president was likely immune from civil suit, I should have sued those who amplified his campaign of defamation. Holding those who defamed me accountable could have deterred further attacks against me and subsequent targets. Thankfully, now that the former president is no longer in office and his social media accounts have been suspended or outright banned, he can no longer effectively defame people and reach an audience of millions.

Recent events have made the need for accountability more pressing than ever. Should anyone be surprised that viewers of right-wing media are radicalized when media personalities themselves promote radical ideas based on lies? As the most recent impeachment trial illustrated, when thousands of Trump supporters were roused to insurrection and attacked the Capitol on Jan. 6, their rage was fueled by the Big Lie of “stolen elections” and “evil Democrats.” And the House managers rightfully sought to hold Trump accountable for inciting the mob to disrupt the peaceful transition of power. Even Senate Minority Leader Mitch McConnell has recognized that “[t]he mob was fed lies” and “[t]hey were provoked by the [former] president and other powerful people.” After voting to acquit the former president, McConnell further acknowledged that the rioters’ belief that “they were acting on the wishes and instructions of their President” was “a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.” Shortly thereafter, in an op-ed for the Wall Street Journal, McConnell wrote that “[t]here is no question former President Trump bears moral responsibility.”

But while the rioters are being held accountable through the criminal justice system—and Congress at least had a chance to hold the former president accountable through the impeachment process—how can Americans hold the right-wing media responsible for its role in the attack? The mob that attacked the Capitol was born of hatred fomented by the right-wing media. These insurrectionists were raised for years on a steady diet of disinformation and half-truths, which produced the fertile fields for radicalization.

Accountability of the media is required, lest they sow the seeds of future insurrection. It is clear that both the political enablers and the right-wing media are now trapped in a vicious cycle in which their followers demand that their enablers dole out more outrageous lies. As historian Timothy Snyder noted in “The American Abyss,” the accumulation of little lies has manifested the Big Lie, and the right-wing media continues to feed the beast they helped create.

The First Amendment gravely limits the available tools to seek accountability for the right-wing media. Policymakers cannot, after all, tell media organizations what to say. Except in the most extreme situations, which are unlikely ever to arise, prosecutors also cannot accuse them of incitement. Unlike with Trump in the impeachment trial, the First Amendment clearly does apply here, and it has a very high standard for incitement under Brandenburg v. Ohio.

Nevertheless, there are ways to dismantle the right-wing ecosystem of disinformation, an ecosystem that does not begin with insurrection but with more mundane lies. Like the many political elites driving insurrection to advance their political aims, the right-wing media is also motivated by a bottom-line calculation: viewers, market share and advertising dollars. Similar to the yellow journalism that flourished in the late 19th century, the right-wing media today is driven by the promise of profit. So why not hold the media accountable for the heinous insurrection where it hurts them most? By design, defamation law makes intentional, malicious lying an expensive habit, but this works only if people are willing to bring civil cases against the peddlers of disinformation.

My friend the historian and foreign policy analyst Max Boot recently suggested that large cable companies or the Federal Communications Commission could hold news companies accountable for spreading false information, but that puts the onus on entities that have thus far failed to do the job. Lessons must be drawn from my own experience. I have been the target of a comprehensive defamation campaign by right-wing media outlets and their pundits. During a segment on Fox News with Laura Ingraham, John Yoo stated that I may have committed “espionage” for simply fulfilling my duties. This slanderous accusation was quickly picked up as a “good point and worth discussing” by the Gateway Pundit’s Jim Hoft, and Raheem Kassam explicitly questioned my loyalty and patriotism over unfounded claims of “backchannels” and “espionage” on a podcast with Steve Bannon. Rudy Giuliani accused me of advising two governments. American Greatness provided a platform for attacking my character, publishing a fabricated tale by Lt. Col. (ret.) Jim Hickman about a verbal reprimanding that never took place and my supposed radical political leanings, distaste for America, and actions as a “political activist in uniform”—all bald-faced lies. American Greatness paired with Hickman again after my departure from the National Security Council, claiming that I should be court-martialed, a threat of punitive action echoed by Trump and his enablers, including in the right-wing media. On multiple occasions, Republican Sen. Marsha Blackburn promulgated lies that I had “leaked” information to the whistleblower, while accusing me of acting as the “whistleblower’s handler.” The Federalist’s Sean Davis took these same malicious falsehoods a step further, insisting that I had lied to Congress. All the while, congresspeople and right-wing media outlets reiterated attacks on me for being an immigrant and somehow not American, seeking to “undermine” Trump and “the chain of command,” feeling “simpatico with the Ukraine,” acting as a member of the “deep state”, and taking part in a “palace coup.”

Still in uniform and hesitant to further inflame an event that would hasten the end of my military career, I did not respond to these slanderous attacks. Even after leaving the Army, I rationalized inaction, thinking that litigation against these media outlets and individuals would paint me as litigious and seeking personal gain. This was a mistake. Now, I propose a different solution: Legal action must be taken to rein in the right-wing media apparatus.

When Fox News stars and more fringe networks like Newsmax and One America News Network make baseless and outrageous claims about “stolen elections,” “communist Democrats,” and “fascist main-stream media,” they are building on lies about individuals. They are galvanizing extremism on the back of defamation. Too many of those defamed individuals, including myself, have allowed extremist claims to go unanswered. Persuaded by notions of freedom of speech or the idea that seeking accountability for harm would be difficult, I may well have missed my opportunity to seek accountability, in effect giving a pass to extremist media. I inadvertently became an enabler for further attacks on individuals and institutions. Had I and others thrown down a litigation marker during the first impeachment, perhaps these media organizations would have thought just a little bit about the risks of desecrating the truth before they spread post-election lies.

The right-wing media and its extremist media personalities have established a foothold and won the attention of millions. Those millions have now grown accustomed to sensationalized content untethered from the truth—often at the expense of individuals. The only means of breaking the cycle is accountability. Civil consequences, rather than governmental restrictions on First Amendment rights, could be a meaningful way to take what are fundamentally money-making ventures and demand truth from them, instill rigor in their reporting, and uphold accountability. Like a tabloid being sued and paying severe penalties, media companies and right-wing media personalities will claim that what’s at stake is freedom of speech. But defamation is not covered by the First Amendment, so this is, by definition, not true. And the generous standards in defamation law for purposes of protecting the press offer a true safe haven for good-faith actors even when they err. Putting companies in fear of the real costs in civil damages for slander, libel, and false claims that can cumulatively incite violence and that can individually harm actual human beings should have a restraining effect on their behavior.

There are some good recent examples of this. In October 2020, Fox News settled with the family of Seth Rich, a young DNC staffer killed by a mugger in 2016, after family members sued for intentional infliction of emotional distress. A Fox News report had earlier suggested without any evidence that Democrats may have been linked to Rich’s murder. More recently, voting technology companies Dominion Voting Systems and Smartmatic have filed billion-dollar defamation lawsuits against Trump lawyers Rudy Giuliani and Sidney Powell, MyPillow CEO Mike Lindell, and Fox News and three of its hosts (Lou Dobbs, Maria Bartiromo and Jeanine Pirro) over their baseless claims of election fraud. Dominion and Smartmatic have proved willing to follow through on their threats of legal action, indicating that more lawsuits may be forthcoming against other purveyors of disinformation like One America News and Newsmax. Both companies’ lawsuits represent vital first steps toward reining in malicious lies and reestablishing the foundations of truth.

I wish I had taken similar action, and I hope others will.