Fox News notches ignominious court victory over Seth Rich conspiracy story

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Mary Rich and her husband, Joel Rich, hold a photo of their son in their home in Omaha in January 2017. (Matt Miller/The Washington Post)
August 3 at 3:23 PM

Fox News hosts commonly praise the United States for its extraordinary freedoms. In light of a Thursday federal court ruling in the company’s favor, they have fresh cause to exult.

Judge George B. Daniels dismissed a lawsuit brought by the parents of Seth Rich, the Democratic National Committee staffer who was killed in July 2016, apparently the victim of a botched robbery attempt. Conspiracists, however, slapped together a narrative that Rich was killed in connection with his role in transferring all those DNC emails to WikiLeaks. In an execrable May 2017 story, Fox News fanned this very fantasy, prompting Joel and Mary Rich, the parents of Seth Rich, to sue over intentional infliction of emotional distress, among other wrongs.

No dice, ruled Daniels, pointing out that a claim for emotional distress needs to clear one heck of a hurdle. In fact, the offending behavior must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society,” notes a 1999 legal precedent cited by Daniels. Fox News’s activities in the Rich case, argued the judge, didn’t meet that standard.


To review: The Rich parents lost their son to a tragedy. The theory that he had somehow betrayed his employer, his party and his country was a nasty and fringy phenomenon. Then, along came Fox News investigative reporter Malia Zimmerman, who collaborated with financial adviser Ed Butowsky and retired D.C. police detective Rod Wheeler (whose separate defamation claim against Fox News was also dismissed Thursday) to produce a “story” on the whole theory. It collapsed within minutes, and Fox News was forced into the rare extreme of having to retract it. “They published, republished, and publicized the sham story — which they knew would be covered again and again, and republished, here and around the world — painting Joel and Mary’s son as a criminal and a traitor to the United States,” notes the complaint from the Riches.

Apparently all that wasn’t sufficiently “outrageous in character” and “extreme in degree.” Which is to say: The Fox News article was outrageous and extreme in the eyes of all except for the law.

In the network’s response to the Riches’ lawsuit, lawyer Kevin Baine of Williams & Connolly LLP wrote, “Even accepting as true the allegation that the Fox News article was a ‘sham,’ … publication of a knowingly or recklessly false and defamatory statement of fact is neither extreme nor outrageous as a matter of New York law.” In his ruling, Daniels affirmed that very contention, citing case law that bars recovery of damages for intentional infliction of emotional distress “absent a deliberate and malicious campaign of harassment or intimidation.” To have prevailed in this case, ruled Daniels, the Riches would have had to lay out just how each defendant in this case — Fox News, Zimmerman and Butowsky — behaved in “extreme and outrageous” ways.

The real problem with the Riches’ suit, suggested Daniels, is misdirection. Its “crux,” wrote the judge, is defamation. “Plaintiffs cannot ‘circumvent the restrictions on defamation claims’ by styling their defamation claim as one for [intentional infliction of emotional distress],” wrote Daniels, who noted that libeling a deceased individual without making a “direct reflection upon his relatives gives them no cause of action for defamation.”

What a wonderful world for Fox News.

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