Fox News may yet be held to account for promoting a right-wing conspiracy linking the death of Democratic National Committee (DNC) staffer Seth Rich to the release of stolen DNC emails on Wikileaks during the 2016 campaign.
A federal appeals court today (Sept. 13) reinstated a lawsuit filed by Rich’s parents, Joel and Mary Rich, claiming Fox News “exploited” their son’s murder to push the right-wing conspiracy theory.
The lawsuit seeks damages for “emotional distress” caused by Fox News’s promotion of the baseless right-wing smear attempt.
Rich, 27, was shot and killed in July 2016 while out for a walk near his home in Washington, D.C. An extensive police investigation determined that his murder resulted from a botched robbery.
But right-wing conspiracy mongers, egged on by Fox News talking head Sean Hannity and others, tried to link Rich’s death to the theft of emails from the DNC.
The emails were published by Wikleaks during the presidential campaign and widely cited by Donald Trump at campaign rallies.
Rich’s death was used to deflect intelligence agency findings that the DNC servers were hacked by Russian operatives and leaked to aid the Trump campaign.
On May 16, 2017, Fox News broadcast the report claiming a possible link between Rich and WikiLeaks’ publication of stolen DNC emails. The story remained posted on the Fox News Web site for six days while commentators, including Hannity, Steve Doocy, Newt Gingrich and others, vigorously promoted the idea on air.
After a firestorm of criticism, Fox removed the story from its site and retracted it. Hannity continued to promote it on his show, claiming he had sources with evidence. They never materialized.
“I am not Fox.com or FoxNews.com. I retracted nothing,” Hannity proclaimed on air.
In fact, no credible evidence has ever surfaced linking his death to the leaked DNC emails.
In August, Rod Wheeler, a former Washington D.C. police homicide detective and paid Fox News crime analyst, sued Fox News and Ed Butowsky of Chapwood Investment Management in Texas for fabricating quotes attributed to him in the May 16 Fox broadcast.
Significantly, Wheeler asserted they’d purposely “embellished” the story to undermine allegations that the Trump campaign had cooperated with Russia.
Butowsky, who had hired Wheeler privately to investigate the conspiracy, and Fox News “investigative reporter” Malia Zimmerman were also named as defendants in the Rich lawsuit.
The same month, David Folkenflik, a National Public Radio reporter, weighed in with a radio report titled “Behind Fox News’ Baseless Seth Rich Story: The Untold Tale.”
Based largely on Wheeler’s lawsuit, the story fingered Butowsky as a key figure in the fiasco, claiming he “worked in concert under the watchful eye of the White House to concoct” a “fake” and “defective” story.
On Aug. 16, Folkenflik followed up with a second story, “The Man Behind The Scenes In Fox News’ Discredited Seth Rich Story,” which zeroed in on Butowsky.
“No parent should ever have to live through what we have been forced to endure,” Rich’s parents said in a statement when they filed the original lawsuit last year in U.S. Federal District Court.
“The pain and anguish that comes from seeing your murdered son’s life and legacy treated as a mere political football is beyond comprehension,” they said.
The lawsuit suffered a setback last year when U.S. District Judge George Daniels ruled the claims were not “sufficiently outrageous” and “fail to adequately allege essential elements of the causes of action asserted.”
“It is understandable that Plaintiffs might feel that their grief and personal loss were taken advantage of, and that the tragic death of their son was exploited for political purposes,” the judge stated.
“However, a general allegation that Defendants had an ‘agreement to collaborate against’ Plaintiffs cannot form the basis of an [intentional infliction of emotional distress] claim.”
Daniels also dismissed Wheeler’s lawsuit against Fox. No word on the fate of that case.
But the Rich’s appealed the ruling and a a panel of federal appeals court judges in New York ruled that Daniels erred in dismissing the suit.
“The Riches’ complaint plausibly alleges enough facts to state a claim for intentional infliction of emotional distress — for extreme and outrageous conduct by [Fox News],” the judges wrote in their ruling.
“We have no trouble concluding that — taking their allegations as true — the Rich’s plausibly alleged what amounted to a campaign of emotional torture.”
The court’s ruling clears the way for the Riches to began legal discovery, a process that will force Fox News to provide testimony and evidence regarding the claims.
The station stepped gingerly around the ruling in a statement that was deferential to the Rich’s.
“While we extend the Rich family our deepest condolences for their loss, we believe that discovery will demonstrate that FOX News did not engage in conduct that will support the Riches’ claims. We will be evaluating our next legal steps,” it said in the statement.
At some point, following discovery, Fox News will likely seek to have the suit dismissed once again, for lack of evidence. If the Rich’s clear that legal hurdle the case will be cleared to go to trial.
Whatever the outcome, the lawsuit should serve notice that the news media can not promote baseless conspiracy theories as “news” without evidence.
The practice had become widespread among right-wing news sites like Gateway Pundit and commentators like Alex Jones, who is also being sued from promoting baseless conspiracy theories.
Jones has already been banned from social media.
In April 2018, the BBC broadcast the documentary, “Conspiracy Files: Murder in Washington” examining the death of Rich and subsequent theories about the death.
This past July, a Yahoo News investigation revealed that Russian intelligence agents secretly planted the fake report claiming Rich was involved in a conspiracy involving Hilary Clinton and the DNC emails.