Lawrence Schnapf

@Leslie Sharp- To be fair, EVERYONE dropped the ball after Trump postponed release of the records not once but twice. No one in the research community took any action to resist Trump's postponements. There may have been some whiny articles complaining about the postponements but no effort to fight the postponements. As a result, the Trump postponements were basically a one or two day news cycle event. You cant blame Tucker for not devoting time on his show for the Trump postponements when the research community did not make this a newsworthy item. In contrast, I organized my legal group in early 2021 in anticipation of Biden's October 2021 memo. we began an orchestrated campaign starting with an oversight request to congress, outreach to the PIDB and a group letter to Biden. After his October 2021 memo, I filed my FOIA lawsuit to understand what went on behind the scenes for the Trump and Biden postponements. Then in 2022, we continued our orchestrated campaign including filing our MFF lawsuit and a press conference at the National Press Club. Our MFF group engaged in sustained media outreach so that Biden's December memo a controversial news event item. Only Tucker and, to lesser extent, Kennedy on the Fox Business Network picked up on the Biden action ( I appeared on her show after we filed our lawsuit). No other evening programs devoted any real time to the postponement much less leading with this topic despite a protracted effort. You have no idea how many conversations we had with producers and researchers of shows nor the hours spent feeding the teams with materials If you had put in the amount of time and effort we put into trying to engage all major media outlets, you might feel the gratitude I feel towards Tucker for taking up the issue. I hope you can now organize yourselves and get the attention of the progressive media and Democratic Senators. Take all the energy you are devoting trashing him on this thread and re-direct it towards the shows you watch to convince them to carry a segment on this issue.

Joe Bauer- are you including me in the category of "Tucker Carlson defenders"? Just to be clear, I have not "defended" him. I have applauded him for giving airtime to the JFK Records issue (which my all my encounters with his staff appears to be genuine interest) in contrast to the hosts on competing progressive cable or broadcasts. I understand your head explodes when any person gives any credit to TC. I have also posted excerpts from the Fox briefs to illustrate the steep legal mountain that Dominion has to climb. It should not be construed as my endorsing the Fox broadcasts.

Alex Jones was a unique situation both because he was individual and his performance on the witness stand essentially asked the jury to find him quilty. This is a very important first amendment case and Dominion has very heavy lifting especially since the demand resembles a punitive penalty. they still have to prove damages which I have yet to see. they already had to reduce their demand by 1/2 billion dollars. That will no doubt be further reduced. how would you feel if the jury found Fox guilty but awared $1 in damages?

And here is Fox News recitation of NY defamation law. as you see, they play on the chilling effect such a verdict would create for all news organizations, not just Fox: "According to Dominion, a media organization acts with the requisite actual malice so long as anyone in the “chain of command”—from line-level producers to the CEO to the highest executives at the publication’s parent company—did not believe something someone on one of the organization’s shows said, even if that person played no role in drafting, editing, or publishing that statement or even knew that it existed. Thus, in Dominion’s view, Fox News acted with actual malice if Lachlan Murdoch did not believe something he never knew Sidney Powell said on Lou Dobbs’ show." "That theory fails as a matter of law, and the law could not be clearer: Actual malice must be brought home to someone who actually played a role in crafting, editing, or publishing the particular statement at hand, not just to someone on the corporate organizational chart. There is no such thing as defamation by omission, and the Supreme Court of the United States squarely rejected a “collective knowledge” theory of actual malice more than half a century ago." "This unprecedented effort to punish the press for covering and commenting on the most newsworthy story of the day has no basis in law or fact. Indeed, Dominion has even been forced to quietly slash its damages demand by more than half a billion dollars after its own experts debunked its implausible claims." "In Dominion’s view, the press is liable for reporting such allegations so long as someone in the “chain of command”—from line-level producers to the highest executives at a publication’s parent company—suspects that the allegations are specious and fails to stop the publication from covering on them. On top of that, the press is not only liable for reporting such allegations, but on the hook for punitive damages too so long as someone within the news organization knew that the allegations would harm the accused." "By Dominion’s telling, if the President falsely accused the Vice President of plotting to assassinate him, the press would be duty-bound to suppress that unquestionably newsworthy allegation so long as someone in the newsroom thought it was ludicrous. The New York Times would be liable for reporting allegations in the Steele Dossier that “the Kremlin had recordings” documenting extraordinary accusations against President Trump so long as even one editor at the Times doubted that claim" The Washington Post would be liable for reporting President Trump’s allegation that President Obama was born in Kenya since several of its editors believed the claim to be bogus. CNN could be liable for reporting former Governor Andrew Cuomo’s denials and counter-allegations that his accusers were XXXXX since some CNN executives undoubtedly believed the Governor’s accusers. And all of those publications would be on the hook for punitive damages so long as someone within the organization viewed the allegations as “extremely damaging” to the accused." Dominion could sue CSPAN tomorrow, as recordings of Rudy Giuliani’s and Sidney Powell’s November 19 news conference and their allegations about Dominion, as well as President Trump’s December 2 press conference featuring the same allegations about Dominion, remain on its website to this day. And it would not stop there; Dominion could sue anyone who tweeted, posted, texted, emailed, or even just spoke about the allegations too." "the New York Court of Appeals has made clear that reporting such allegations receives substantial protection, in the context of allegations of election interference no less: So long as a reasonable viewer, when viewing a statement in the “over-all context in which the assertions were made,” would understand the statements “as mere allegations to be investigated rather than as facts,” reporting the allegation is not defamatory, but is instead affirmatively protected by the First Amendment"

Bob Ness- their are dueling material facts that will likely prohibit summary judgement. On the law, it is very difficult to hold a parent liable for defamation of the subsidiary. See: ("Dominion now claims that Fox Corporation is on the hook for statements published by its subsidiary simply because it did not intervene to stop them from airing. That theory has no basis in defamation law and would vitiate bedrock corporate separateness rules. This Court should reject Dominion’s latest attempt to end-run around basic corporate-law principles."); ("This Court observed from the very start of Dominion’s lawsuit against Fox Corporation that Dominion’s “pleadings come close to contravening the ‘fundamental [rule] that a parent is considered a legally separate entity from its subsidiary and cannot be held liable for the subsidiary’s action based solely on its ownership of a controlling interest in the subsidiary") Murdoch did a good job of insulating Fox Corp from Fox News (" Neither Rupert Murdoch, nor Lachlan Murdoch, nor anyone else at Fox Corporation played any role in creating or publishing any of the statements Dominion challenges. Revealingly, after running into one dead-end after another in questioning Fox News witnesses, Dominion did not even bother to ask the two Fox Corporation executives at the heart of its allegations whether either of them discussed Dominion with any Fox News hosts. Nevertheless, on redirect, Rupert Murdoch confirmed under oath that he never even discussed Dominion with any of the Fox News hosts whose programming Dominion has challenged." And Fox News begins its analysis with the following: "when it comes to allegations that are newsworthy regardless of whether they are true or false, the New York Court of Appeals has squarely held—in the context of allegations of election interference, no less—that so long as a reasonable viewer, when considering a statement in the “over-all context in which the assertions were made,” would understand the statement “as mere allegations to be investigated rather than as facts,” reporting the allegation is not defamation" "And so long as the press makes clear that the allegations are just allegations, it is free to offer its opinion that the allegations are “credible” and merit investigation (as some Fox News hosts and other networks did, just as it is free to offer its opinion that the allegations are implausible (as other Fox News hosts and other networks did. and perhaps the heart of its defense Dominion does not even try to argue that a reasonable viewer would fail to understand that the vast majority of the statements it challenges were “mere allegations” made by the President and his lawyers, not proven facts about Dominion. Nor could it. After all, the reasonable-viewer test assumes a reasonable viewer, and when a host says, “Coming up, Rudy Giuliani and Sidney Powell make the President’s case right here,” as Maria Bartiromo did on November 8, or “the President’s lawyers come forward alleging…,” as Jeanine Pirro did on November 21, any sensible person understands that what they are hearing are allegations that need to proven in court, not facts reported for their truth [emphasis added] I do not provide the above as my defense of Fox but to give you a flavor of what Dominion is going to have to overcome. this is not a breach of contract or negligence case. It is a defamation case where the plaintiff has to prove malice- very difficult with corporate news organizations.

I've never done that before because I have client info in the cloud. would i share the link in a thread here?

Ben- i was simply asking how to post the briefs in the Dominion v Fox Corp case. I have reviewed the Trump cases that are relevant to the MFF case. No interest in the others.

is there a way I can share the pdfs of the briefs supporting motions for summary judgement filed by Dominion, Fox News Corp and Fox Corp? They are interesting to me as a lawyer but I think you may find them interesting as well.

Here is a NYT piece discussing how the selective transcripts may never get into court. I'm in the process of obtaining the briefs filed by both sides. the trial is supposed to start on april 17th. https://www.nytimes.com/2023/03/12/business/media/fox-news-dominion-lawsuit-evidence.html

Bob Ness- you making broad general statements about potential liability of news organizationsm and the viability of parties bringing lawsuits that resembles magical thinking which is ok- just recognize it . This case will turn on specific allegations that the plaintiffs must prove along with their damages. I have already explained how Fox can try to defend this case. read the preceding discussions. This case is far from a slam dunk. All we have so far is the complaint and the selective leaks from deposition testimony. You havent even heard Fox's side of the story yet. They have very good lawyers. this will become very muddled after Fox tells its story.

if there was any verdict against Fox, i doubt it would be in the billion dollar range. Dominion is going to be hard pressed to show damages exceeding anything approaching the amount from what I have seen so far. And any damages approaching that amount would likely be overturned by the Supreme Court based on its recent jurisprudence.

Joe Bauer- you're engaging in wishful thinking. they've only been knocked down in the eyes of the bubble that already does not view Fox favorably. There will not be any appreciable impact in the other bubble. Fox wont lose eyeballs. There will only be real impact if this causese advertisers to leave the network. the revealations will have no impact on viewership. I'm not sure why you dont get it.

Office of Information Policy issues guidance to implement AG 2022 FOIA Guidelines which emphasized the requirement that an agency may only withhold information if: (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law. See id. § 552(a)(8)(A)(i). More importantly, the OIP guidance emphasizes that even where an exemption would otherwise apply, agencies may withhold information only when (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law. See 5 U.S.C. § 552(a)(8)(A)(i). To meet this burden, agencies must “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld. https://www.justice.gov/oip/blog/oip-issues-guidance-presumption-openness-and-foreseeable-harm-standard

The Dominion complaint only cites one example for Tucker and Hannity. There is more examples for Lou Dobbs and Maria Bartiromo. However, Fox has countered with its other news programming that it asserts balances the "opinion journalism" episodes. I'm not even sure that any of the exerpted testimony that has been the subject of coverage and this thread will ever get in front of the jury. That may be one reason it was leaked to "pollute" the potential jury pool.

Leslie- I'll ask Rex. Thanks!

Leslie Sharp- that would be great. it could become a tool to help with our lawsuit. I also just want to be clear that in explaning the burdens of proving a defamation case, I was not defending Fox. I was simply responding to some posts who seemed to suggest Domination had a slam dunk case based on the selective desposition leaks. and I once urge those who watch the more progressive cable news programs to try to organize and apply pressure on them to follow the JFK Records case. the one lesson from the Dominion defamation case is that a cable network feels pressure when its audience is unhappy and is beginning to drift to other stations. If you guys can make it clear to the other stations that they need to cover the illegal withholding of assassination records, then we wont have to rely on Tucker to break news on this topic. Finally, if any of you have good contacts at any of the good government/open government/transparency nonprofits, please let me know. we'd love to have them file amici briefs opposing the governments motion to dismiss. You all can help with this important lawsuit.

Leslie- why dont you state a separate thread not only on records not are not in the collection but also for researchers to document their communications with NARA or agencies to obtain these records. we may want to add some further examples of how NARA has mishandled or failed to comply with these requests.

Joe Bauer- i'm not going to argue with you about if Tucker et al are opinion hosts. I am just letting you know the legal arguments. you and Matt have knee-jerk reactions which are ok but those are emotional responses that wont influence the outcome. Joe- how about starting a thread asking why the liberal media is not pushing for full disclosure of JFK records and basically and abandoning this issue to what you term the RWNJs? That would be more productive of your time and perhaps actually embarrass them to do something. Their go-to-historian Beschloss needs to grow a pair. he always resorts to the mainstream opinion...

Matt- the disclaimers are unnecessary. it is clear they are opinion hosts just as Rachel Maddow and the others on MSNBC. That is one reason why they were not liable for defamation for misreporting about Trump and Russia.....

W. Niederhut- the first amendment provides a wide birth especially to people who are clearly expressing opinions as opposed to straight news. it's the same first amendment that allowed my generation to burn the american flag and their draft cards when the government was claiming this was enbolding our enemies. its the same first amendment who protected those who wrongly claimed Trump was an agent of the Russians. It is the FIRST amendment because it is so important to our society.

Joe Bauer- for purposes of a lawsuit, this can be a significant difference. I've seen this influence outcomes in the past but we have not seen the complete evidentiary record. You are, of course, predicting the outcome through your subjective lens. I'm sure the jury is going to have members who disagree with your viewpoint. it would be interesting to be a fly on the wall of the jury room.

Matt Allison- With respect to a verdict, this case is far more complicated that the selective disclosures that have so far been released-likely by Dominion's team. we dont know what the rest of the evidence is and we dont know how the plaintff will be able to prove damages. I suspect Dominion's team is trying to try Fox in the court of public opinion because of the difficulty of obtaining a verdict.

Matt Allison- what are RWNJs?

Paul Brancato- In our political binary world, i dont think Fox will suffer much reputational risk to the half of the nation that watches its shows. The other bubble already dismissed Fox so the disclosures have simply reinforced their beliefs. What will be interesting is if Fox suffers a loss of advertisers. I suspect that if Fox does not lose any significant viewership, only a handful of advertisers will walk away. Tucker remains the no. 1 rated show in his timeslot. Also keep in mind that only selective disclosures have been released. I dont think we have not seen the complete deposition transcripts and there may be other testimony that puts things into context. as a independent voter, I find it increasingly burdensome to evaluate news events. I have to review many more news sources to get the complete picture. tuning into CNN, MSNBC or Fox or simply reading the NYT or WaPO just yields biased reporting. even the topics pursued are the result of bias. It is alot of work but essential for me to keep well-informed. I recognize most americans are not as motivated or interested, or dispassionate as I am. It is just too bad that it has become so hard for the average person to get complete info. Then again, the notion of objective journalism was a relatively new and brief concept. Before world war 1, we had "yellow" journalism where the media was basically news organs of the parties. For half a century, we had a media that felt it had an obligation to provide balanced news. Of course, this was also the time when the media did not report on the sexual escapades of JFK, sports or Hollywood figures, and felt it was the arbitrar of what information was worthy of printing. Watergate changed that but it seems that investigative journalism has gone by the wayside in this era of corporate-owned media. -FWIW

Joe Bauer- I understand that your mind is blowing up with both what you perceive as the Tucker as hero and Fox News revelations. Alex Jones is an outlier. he is not a billion dollar news organization with top rated broadcast and TV shows. He does not have a news division. And the plaintiffs were parents of murdered children. very different situation. I know you like to see the world in black and white but that is not how trials or juries work. The only way Fox loses his if the jury is 100% comprised of biased democrats like you--which wont happen. Remember- the other bubble that you do not occupy wanted to hear the stories that were being aired. They were pissed that Fox correctly called Arizona and were moving to other social media outlets. AND Tucker, Hannity and Ingram are opinion shows, not news shows nor part of the news division. These are all factors that should help Fox. Tucker remains an imperfect messenger on the JFK assassination but so far he is the only messenger. It would be great if one of the prime time hoosts of your preferred news outlets would pick up the mantle for full transparency on the JFK assassination but they have not only failed to do so but are complicit in the coverup, affirmatively defending the official government position. I think you outrage should really be directed at those news organizations. i remain puzzled why you give them a pass on the JFK assassination which is afterall the theme of this forum.