I’ve been contemplating further on the Dominion Voting Systems’ (Dominion’s) defamation lawsuit against Fox Corp. (Fox), which led to revelations that Fox knowingly spread falsehoods about Dominion’s voting systems which, by extension, lent credence to former President Donald Trump’s and his acolytes’ unfounded claims that that the presidential election had been stolen from Mr. Trump. My reflections have landed upon the same conclusion as I’ve expressed in earlier posts about what I now consider the greatest threat to our democracy. It actually isn’t Mr. Trump, Fox, or alt-right media.
First, a seeming aside, but not: on April 20, Barron’s stated that Philip Morris International narrowly missed analysts’ projections for its first quarter 2023 revenue – a mere $8 billion instead of $8.1 billion – but reported, “[Chief Financial Officer Emmanuel Babeau] argues its long-term smoke-free goals remain on track.” Then: “[Philip Morris] is aiming to make a majority of its sales from smoke free products by 2025. Its heat sticks are in the process of getting approval, and the company plans to relaunch IQOS, a heated tobacco product, in the U.S. next year.” Later: “Babeau notes that … the longer-term outlook remains robust, given broad-based adoption of its smoke-free products, like IQOS, as well as the company’s ability to maintain market share in the traditional cigarette market, even as it recedes in importance for the business. Although combustible tobacco revenue was lower, that was offset by price increases of more than 7%, demonstrating, he says, that ‘consumers are ready to accept price increases because of inflation.’ On the growing smoke-free side of the business, IQOS users increased by nearly one million since the end of 2022, while its Zyn nicotine pouches ‘are absolutely flying,’ the CFO says, with nearly 47% growth in U.S. shipments. … Philip Morris’s sales show ‘remarkable numbers in terms of growth,’ Babeau says.” In other words: Philip Morris’ shareholders should be reassured of the company’s future profits.
Contrast this with statements from the Centers for Disease Control (CDC): “Research suggests that heated [i.e., smoke-free] tobacco products and their emissions contain many of the same harmful ingredients as regular cigarettes, as well as other harmful ingredients not present in regular cigarettes.” The CDC classifies nicotine pouches – placed in the mouth, although containing no tobacco — with “tobacco products,” which the CDC says can lead to nicotine addiction and may lead to oral cancers. Those of us who know baseball history remember the stories of the old time major league tobacco chewers who ultimately suffered and succumbed to mouth cancer.
Philip Morris is selling and stoking addiction. It is perhaps but a slight exaggeration to suggest that everybody over the age of 7 in this country with any sense knows that tobacco and nicotine, no matter the form, are harmful. Philip Morris’ customers choose to ignore the risk. They even defy inflation for the privilege of consuming products that will kill them.
Now to Fox. Amid the torrent of commentary attending the Dominion – Fox settlement, a talking head mentioned something I had forgotten: that for a period after the 2020 presidential election, Fox did attempt to back away from the Trump cohort’s claims that the election had been stolen – and that the channel immediately began losing ratings to tiny outfits One American News (OAN) and Newsmax, which were entirely committed to promoting the hoax. In other words, an apparently notable segment of Fox viewers didn’t want to hear facts – they were determined to believe what they wanted to believe. They had become addicted to the information opiate that Fox and the rest of the alt-right media had been selling them in ever-more-powerful doses over the preceding 25 years. When Fox tried to provide them alternate weaker stuff, they went looking for another dealer. Fox saw that its profits were going to suffer. If the Murdochs, Fox management and Fox hosts didn’t know it before, they knew it then: once Fox had led its viewers; now Fox is their captive. Notwithstanding its recent dismissal of Tucker Carlson, its virulent dissimulation will continue because, aside from rare hiccups like the Dominion lawsuit, such is necessary for Fox to maintain its profits.
Philip Morris and Fox are publicly traded companies. Some would hold that it is actually their duty – in order to maximize their shareholders’ returns – to create and cater to poisonous addiction.
Who’s really responsible for the damage these companies cause? We have adopted, and anyone with a conscience fully supports, a regulatory scheme to limit certain tobacco company actions – perhaps most crucially, restrictions on their malign attempts to hook impressionable youth (we can thank the Almighty that the Second Amendment doesn’t include the right of a well-regulated militia to keep and bear tobacco 😉 )– but ultimately individuals make their own decisions and, even if they at first make bad choices, can choose to rid themselves of nicotine addiction; but despite the oceans of data available to acquaint anyone able to see or hear about the dangers of Philip Morris’ products, the fact remains that Philip Morris is projecting “remarkable numbers in terms of growth” because millions of Americans willingly consume its products knowing the dangers.
Fox is obviously a more difficult case; it operates at the crossroads of free speech and American capitalism. On April 21, during MSNBC’s Morning Joe broadcast, Washington Post Associate Editor Eugene Robinson asked Andrew Weissmann, formerly a lead prosecutor in Robert Mueller’s Special Counsel’s Office among other impressive offices and currently a professor at New York University Law School, whether an adverse ruling to Fox if the Dominion defamation suit case gone to trial “ … might have had an impact on the governing Supreme Court decision … that gives wide latitude to reputable news organizations ….”
Mr. Weissmann responded: “I think that the key word that you used, Eugene, is the word, ‘reputable.’ If I were at a reputable news organization, I don’t know that I’d be particularly worried [about potential expanding defamation liability] at what we saw at the National Enquirer, which was completely colluding with the Trump campaign, or at what we saw at Fox News. If you talk to any reputable journalist, [what the National Enquirer and Fox News did] is so far beyond the pale in terms of what news is supposed to be; you’re not just colluding with one political campaign. So I don’t think … you need to worry …. The [interest of the private companies bringing defamation suits against Fox News] is not to get a public apology, to defend American democracy, or to protect the information flow. They’re trying to get the damages to their clients. And so that’s where you really think the [the Federal Election Commission], which did impose a small fine on the National Enquirer, needs to step in, and it can’t be a small fine. … Is there going to be some regulatory damage that’s going to deter [the promulgation of lies] so we don’t have the repetition. Because it’s really easy [for a media company with a business model like Fox News’] to just simply avoid denigrating a company so you won’t get sued and still promulgate a big lie. So you need to have the government step in to have some kind of regulation of that kind of conduct. [Emphasis Added].”
Mr. Weissmann has an august legal background while I’m just a retired lawyer who worked for a Midwest-based company, but I was appalled by his answer. What’s a “reputable” news organization is in the eye of the beholder. I wouldn’t like to have a regulatory apparatus run by Mr. Trump or FL Gov. Ron DeSantis determine who was a “reputable” news organization, or what speech should be regulated. Mr. Weissmann, I, and all lawyers of our generation were taught the 1919 words of Supreme Court Justice Oliver Wendell Holmes, Jr.: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic [Justice Holmes’ Emphasis].” Although one might argue that Fox’ lies amounted to falsely shouting “fire” in the theater of American public opinion, I would counter that unlike an actual theater occupant, who would have no way of easily ascertaining if the shout was false, any American citizen who wishes to discern the validity of any political media assertion has the ready means to do so.
I am accordingly opposed to any regulation of Fox or other alt-right outlets, no matter what venom they spew. Any American who wants to see beyond their misrepresentations, can. We – and I suspect all reading this note – have beloved family members and friends in the alt-right vortex, who, politics aside, would do anything for you. One continues to have the same affection for them, as one would continue to have for a family member or friend who smokes or is in the grip of an opioid addiction. Even so, Barry Goldwater and Ronald Reagan – actual Republicans – preached and believed in personal responsibility. I would submit that the greatest danger to our republic today isn’t blackguard politicians or unscrupulous media, although their message enables the disease to metastasize; it’s our citizens who willingly choose to stay hooked on their own poisonous alternate reality.