This article is part of a series about a legal threat sent to Crikey by Lachlan Murdoch, over an article Crikey published about the January 6 riots in the US. For the series introduction go here, and for the full series go here.
You have to go back more than 100 years to find the essence of what it means to be a Murdoch. You will find it forged amid the horror of the failing Gallipoli campaign of 1915 when a young reporter, Keith Murdoch, became the lone brave voice to tell the truth of the unfolding mayhem.
The legend of Sir Keith Murdoch, founder of a mighty dynasty, was born then and there. Here was a man of rare honour who saw first-hand that the official story of Gallipoli told by governments in the UK and Australia was a lie. Like other journalists, Murdoch had agreed to submit his copy to military censors who would never allow the truth to emerge. He found a way around that by conveying his concerns in a letter that he provided privately to Australian prime minister Andrew Fisher, and also to the UK government.
As grandson Lachlan recalled it, journalists “effectively faced four censors”: the official censor, the intelligence chief, the chief of staff and the commander in chief — with their actions becoming “an exercise of face-saving for the generals in charge”. Sir Keith’s principled deeds, Lachlan surmised, may have saved hundreds of lives and untold misery as the British government changed course on the Gallipoli campaign.
Delivering the Sir Keith Murdoch oration in 2014, the successor to the throne distilled what his grandfather’s life meant: “Keith Murdoch’s Gallipoli letter was Australia’s boldest declaration that our nation had a right to know the truth. Censorship should be resisted in all its insidious forms.”
In his ABC Boyer lectures of 2008, Rupert Murdoch put Sir Keith’s legacy in these terms: “My father was outraged by the mismatch between Australian enthusiasm and British logistical incompetence at Gallipoli. He was outraged too by the censorship that allowed that incompetence to continue to go unpunished.”
So what to make of where we are now, in 2022, when Murdoch’s Fox News is being called to account for promoting the baseless right-wing conspiracy that rigged vote-counting machines robbed Donald Trump of victory in the 2020 US presidential election — an assertion that strikes at the very heart of the democratic process?
Voting corporation Smartmatic is suing Fox for defamation and claiming US$2.7 billion in damages. The case withstood an early challenge from Fox after a New York judge ruled that there was “substantial basis” for the claim that “at a minimum, Fox News turned a blind eye to a litany of outrageous claims about [Smartmatic], unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth”.
Another vote-tallying company, Dominion, is also suing for defamation, alleging that the Fox network had knowingly spread false news about the company’s machines “to improve failing ratings”. Dominion alleges that Fox executives — namely Lachlan and Rupert Murdoch — “exerted direct control over Fox News’ programming decisions”.
Fox is relying on the First Amendment defence — guaranteeing freedom of speech — for both actions, and described the Smartmatic legal case as a “full-blown assault” on the First Amendment that stood “in stark contrast to the highest traditions of American journalism”.
How the Murdochs have managed to find a seamless link between the censorship-busting acts of Sir Keith Murdoch on the blood-soaked fields of Gallipoli more than a century ago and Fox News’ promotion of the Big Lie of 2020 tells us a great deal about the way “freedom of speech” has evolved as a Murdoch business proposition.
What might Sir Keith have made of the next generations’ insistence that Fox occupies the high moral ground when it amplifies the lies of a would-be dictator?
The First Amendment and the business of Fox
The First Amendment states that Congress “shall make no law” abridging the freedom of speech or of the press. Enshrined in the conditions of the late 1700s, the amendment has evolved into a central plank supporting Fox’s form of outrage media.
As well as in the vote-rigging cases, Fox’s lawyers have used the amendment to see off a legal action stemming from its COVID-19 coverage. The Washington League for Increased Transparency and Ethics (WASHLITE) alleged that Fox breached consumer laws when it broadcast commentary downplaying the threat of COVID in the early days of the pandemic when health authorities were struggling to contain the spread of the virus.
WASHLITE sought an order directing Fox to issue retractions and desist from further programming or content that contained misinformation about the coronavirus.
The network argued that its commentary was core political speech on a matter of public concern or importance, the essence of a First Amendment defence.
(Separately the network successfully defended a defamation case brought against its star political commentator Tucker Carlson by arguing that no “reasonable viewer” would take Carlson seriously. The case was brought by a former model who had been paid hush money by interests linked to Donald Trump.)
The First Amendment defence does not give Fox carte blanche to say whatever it wants, but it does permit a great deal. To get past first base in a defamation action, a complainant needs to demonstrate that Fox has acted with malice or a “reckless disregard for the truth”. This is what the court has found in the Smartmatic case.
As a sidebar, it is also worth noting that the US Supreme Court has a role in shaping interpretation of the First Amendment — another reason for Fox to play close attention to the composition of the court.
It is perhaps little wonder then that Lachlan Murdoch finds cause for complaint about the state of freedom of speech in Australia.
In his Sir Keith Murdoch oration, he lamented the position in Australia where there was “no equivalent constitutional protection of freedom of speech or freedom of the press” such as provided by the First Amendment: “Already we have literally hundreds of separate laws and regulations that currently govern the working press. Even a subset of these laws is entirely sufficient to govern how journalists work.”
Earlier this year Lachlan Murdoch invoked Sir Keith’s censorship-busting spirit to justify his media outlets’ COVID coverage during an address to the Institute of Public Affairs. The Victorian-based free-market think tank’s founders included Sir Keith, who was then chairman of the board of the Herald and Weekly Times newspaper group (and the only media representative among the IPA originals).
Murdoch outlets have been criticised for their hounding of Victorian Premier Dan Andrews — led by Sky News and The Australian’s Peta Credlin — as well as commentary from Sky personalities that downplayed the severity of COVID or promoted quack cures.
In defence of his media assets, Lachlan Murdoch cited daily government press conferences “where citizens were scolded and told to dob in their neighbours” and the “surrendering [of] personal liberties” and the acceptance of “government interventions” as some of the sins of government that had been fuelled by the “alarmist language and fearmongering of politicians and much of the media”.
“Much of the media bought into this,” he complained. “News Limited titles nationally campaigned for our readers to get vaccinated. It was extraordinarily and importantly impactful. But when any columnist questioned the efficacy or fairness of vaccine mandates, they were labelled anti-vaxxers.
“Debate is essential to democracy. Important issues need to be aired, examined and judged. It can be uncomfortable, but it is the media’s key role in our system. Hoeing [sic] to one orthodoxy does not allow this, and is not the media’s role.”
Murdoch had taken particular affront to a decision by YouTube to temporarily ban Sky News Australia from its platform. YouTube ruled that Sky had violated its medical misinformation policies by posting numerous videos that denied the existence of COVID or encouraged people to use hydroxychloroquine or ivermectin.
For Murdoch, YouTube’s actions represented “an obvious and blunt cudgel to Australians’ freedom of speech”. Ramping up his attack, he accused YouTube and “the other members of the tech censor class” of “not protecting viewers from dangerous views or opinions” but “ensuring that only the current orthodox view is allowed”.
Murdoch’s freedom cry is complicated
Murdoch’s cry for freedom of speech should be a straightforward thing — but it’s not. In fact it is complicated, inconsistent, changeable, and revealing of News’ institutional hypocrisy. Ultimately, too, it depends on weak or no regulation by government — or, better still, by a government that doesn’t govern at all.
In 2014 he argued that the internet had made the work of professional journalists “far more valuable”: “The tsunami of content generated every minute online has, if anything, made well-sourced news and careful analysis as important as ever.” Yet eight years on, Fox News stands accused of recklessly promoting the lie that voting machines stole the 2020 elections.
Fox has adopted the high moral ground of freedom of speech to defend its behaviour, but it launched an all-out assault on the ABC’s Four Corners for its critical two-part examination of Fox’s role in the rise of Trump. (Fox’s complaint is now with broadcasting regulator the Australian Communications and Media Authority, ACMA, where it has sat unresolved for the past seven months.)
In his Andrew Olle lecture of 2002, the then 31-year-old Lachlan Murdoch made the argument that good journalism goes hand in hand with making good money: “The profit motive is not only fundamental to our ability to reward shareholders and pay employees; it’s fundamental to excellent journalism.”
“Far from corrupting the craft, profits enhance it. Expansion drives diversity and diversity protects and strengthens our craft,” he said, injecting the spirit of Gordon Gekko in an occasion run by the publicly funded broadcaster.
This was a decade and more before the Murdochs ventured into the outrage-driven ratings success of Fox News in the US and its paler Sky News Australia equivalent, moves that necessarily meant redefining the concept of “excellent journalism” and ennobling it, fundamentally, by wrapping it in a message of freedom.
And government? In Australia there is no government threat to freedom of speech, Murdoch style. ACMA oversees a system that is largely self-regulating when it comes to Sky News’ subscription television service. It represents for all intents and purposes no regulation at all on the excesses of Sky — which made YouTube’s intervention all the way from Silicon Valley all the more galling.
From the battlefields of Gallipoli more than 100 years ago to assaults on truth and the fabric of democracy, the libertarian idea of freedom of speech could not be more corrupted.
