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Notes -
That assumes Epps isn’t a fed or fed informant. Something the FBI hasn’t been willing to say under oath.
Regardless of the truth of the matter, there is a lot of oddness related to Epps. Maybe it’s all a coincidence but there is enough smoke there that it isn’t absurd to (1) believe there is more than meets the eye and (2) not accept Epps claim to the contrary.
If all you need for libel is that the Facts are X, a reasonable person could think it is not X, but it turns out they were mistaken then the media will go out of business.
Now maybe you think it is patently absurd to think Epps is a fed. That seems silly especially given what we already know (feds infiltrate these right wing protests all of the time, police presence did egg on protestors at this event, Epps was curiously dropped from the most wanted despite considerable video evidence of him actively and imminently furthering the whole thing, Epps lied to the Jan 6 committee and they didn’t say boo, Epps has been turned into a martyr by the same people who claim people like Epps are insurrectionists). If it isn’t just beyond the realm of possibility and there was no actual knowledge it is untrue, then Fox is in the clear for the actual malice standard.
It depends. If they say “look we don’t know it’s true, but he is threatening to sue us so knock it off” that seems fine. It gets dicier if they say “we think it’s untrue so knock it off.”
But even then, the problem with Dominion settlement is that it suggests there is no editorial independence. That is, if the bosses think X then they have a duty to prohibit pundit from saying not X. That strikes me as problematic but seemingly the standard most are adopting post dominion law suit.
Yes vicarious liability is a thing. But can you present one case where pundit genuinely thinks X, his editors believe Not X, and there was a successful law suit on the theory that the editor should have prevented the generally independent pundit from speaking on X, especially when the facts stated by pundit are not themselves wrong (only the conclusion drawn from it potentially wrong). That is new to my knowledge but if you can point to a case I’d of course be open to being corrected.
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