"[G]ullible" Fox & Friends escape lawsuit for repeating yet another false news story

››› ››› TOM ALLISON

In an article about a lawsuit against Fox News and hosts Steve Doocy and Brian Kilmeade for repeating as fact an online parody news report of a school prank that included fabricated quotes attributed to the superintendent, the AP reported that the case has been dismissed and that the judge called Doocy and Kilmeade "gullible." But the Fox & Friends segment in question marked at least the third time since 2004 that Fox News has issued a retraction and apology for airing a fake news report that repeated false information.

In a June 4 article headlined "Judge tosses school official's lawsuit against Fox News," the Associated Press reported on the dismissal of a school superintendent's lawsuit against the Fox News Channel and Fox & Friends co-hosts Steve Doocy and Brian Kilmeade for repeating as fact an online parody news report of a school prank that included fabricated quotes attributed to the superintendent. The judge called Doocy and Kilmeade "gullible," as the AP noted, and while he dismissed the lawsuit, the Fox & Friends segment in question marked at least the third time since 2004 that Fox News has issued a retraction and apology for airing a fake news report that repeated false information. In fact, the segment aired after Fox News' Vice President for News John Moody reportedly warned staff in January 2007 that "seeing an item on a website does not mean it is right. Nor does it mean it is ready for air on FNC." In dismissing the suit, U.S. District Court Judge D. Brock Hornby wrote:

The facts in this case -- a morning cable news show derisively reporting events and statements obtained unwittingly from an online parody -- should provide grist for journalism classes teaching research and professionalism standards in the Internet age. But First Amendment principles developed long before the Internet still provide protection to the gullible news program hosts against this public official's claims for defamation and false light invasion of privacy. Poetic justice would subject the defendants to the same ridicule that they accorded the plaintiff. But in real life, the aggrieved school superintendent must be satisfied with their later retraction and a professional reputation sullied less than theirs.

The lawsuit was filed by Leon Levesque, a school superintendent in Lewiston, Maine. According to the AP, "[t]he case was an outgrowth of an April 2007 prank in which a middle school student tossed a slab of leftover Easter ham onto a table surrounded by Somali Muslim youngsters, knowing the Muslims would be offended." Freelance writer Nicholas Plagman later published a fabricated news report about the incident at Associated Content in which he attributed numerous made-up quotes to Levesque, including one in which Levesque was alleged to have said: "These children have got to learn that ham is not a toy." On the April 24, 2007, edition of Fox & Friends, Doocy and Kilmeade reported on Plagman's story as though it were fact and repeated several of the made-up quotes attributed to Levesque. In discussing the parody report, Doocy repeatedly asserted: "We are not making this up." Indeed, when Kilmeade asserted: "You know, I hope we're not being duped," Doocy replied, "We're not being duped. I've looked it up on a couple of different websites up there." Doocy issued an on-air retraction and apology during the May 16, 2007, edition of Fox & Friends First.

Doocy repeated the fake quotes attributed to Levesque from the online article despite the fact that, according to the washingtonpost.com blog The Sleuth, Moody "issued this missive to staff in his daily editorial note on Jan. 23 [2007]: 'For the record: seeing an item on a website does not mean it is right. Nor does it mean it is ready for air on FNC.' " Moody wrote the note after Doocy retracted his false assertion on the January 19, 2007, Fox & Friends, that Sen. Barack Obama "spent the first decade of his life, raised by his Muslim father -- as a Muslim and was educated in a madrassa." Moody criticized the hosts of Fox & Friends in a January 29, 2007, New York Times article, saying, "The hosts violated one of our general rules, which is know what you are talking about. ... They reported information from a publication whose accuracy we didn't know."

Similarly, on October 1, 2004, Fox News issued a retraction and an apology for a fake news story written by chief political correspondent Carl Cameron that falsely attributed quotes to Sen. John Kerry (D-MA) in an attempt to ridicule him over a purported manicure.

In his opinion in the Levesque lawsuit, Hornby wrote that Fox News' "failure to confirm the accuracy of the quotations demonstrates 'an extreme departure from professional standards' ":

The defendants were certainly gullible. Even if they believed the segments of Plagman that they repeated on the air, at least two portions of the Plagman piece were so absurd that they should have raised the defendants' truth-seeking antennae and caused them to question the accuracy of the article as a whole. First, Plagman "quotes" Levesque as saying "All our students should feel welcome in our schools, knowing that they are safe from attacks with ham, bacon, porkchops, or any other delicious meat that comes from pigs." (emphasis added).64 Later, he "quotes" a student as saying "I'm just glad that kid I beat up yesterday was white; I wouldn't want to be in that mess."65 If negligence as to the reliability of a source were the standard, this should be enough. One would hope that when a publisher is poised to report outrageous quotations from such a source, for a story that is not even breaking news, the publisher's failure to confirm the accuracy of the quotations demonstrates "an extreme departure from professional standards." Connaughton, 491 U.S. at 665.66 But unprofessional conduct does not amount to reckless disregard of the truth, and "failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard." Id. at 688.

From the April 24 edition of Fox News' Fox and Friends (from the lawsuit):

DOOCY: [T]his is the number 1 story that we've been talking about today. Up in Maine, a middle school kid -- you know middle school kids

KILMEADE: 7th grade was it?

DOOCY: when they're not saying pull my finger they're doing crazy stuff. He left a ham sandwich in a paper bag where some kids from Somalia would have their lunches. The kid has been suspended and they're calling it a hate crime.

BREAK

DOOCY: We're gonna do a recreation, alright?

CARLSON: Ok.

DOOCY: Let ... Brian, just for uh ... demonstrative purposes, hi, how are you Alisyn?

CAMEROTA: Oh, hello.

DOOCY: Great. Uh ... Alisyn, let's pretend, this is a ham sandwich, let's pretend that uh ... Brian is uh ... from Somalia, alright? And I'm ...

CAMEROTA: [OVERLAPPING] That's quite a stretch.

DOOCY: And I'm in ... yeah, I'm in middle school and I know that he's from Somalia, and I've got this ham sandwich, and I just put it on a table next to him .. .

KILMEADE: Right.

DOOCY: Just like that.

KILMEADE: Right.

CAMEROTA: And then you come back here and you and I giggle.

DOOCY: That's right. I put a ham sandwich next to him.

CAMEROTA: That's funny.

KILMEADE: But of course I didn't know what was in it so it would have to be covered.

DOOCY: That's right.

KILMEADE: And then I realize it's ham.

CAMEROTA: Right.

KILMEADE: And suddenly ...

CARLSON: And so you give it to me. [LAUGHS] Thank you. I'll eat it all for you, Thank you, cause you can't touch ham.

KILMEADE: Yeah, look out.

DOOCY: I should have put it in front of her.

CARLSON: Yeah, is that how it ended?

DOOCY: So anyway, yeah, this is what happened in Lewiston, Maine where a middle school kid being funny doing a joke put a ham sandwich in a paper bag in front of, on a table, where some Muslim students would sit. Well now that kid is being investigated for possible hate crimes. He's been uh ... suspended and the superintendent and the school board looking into perhaps other charges against the kid because it's a hate crime. .

KILMEADE: Yeah ... yeah evidently these Somalia kids are Muslim and Muslims think pork is unclean and highly offensive uh ... and they feel as though to put that in front of somebody is akin to trauma ... uh ... to a hate crime. It's traumatizing and in this case in particular the superintendent, who looks as though he's gonna go to the hilt with this, says it's akin to making these kids feel like they're being shot at back in Mogadishu and being starved to death.

DOOCY: Brian, the Center for Prevention of Hate Violence in that region says they are now working with the school to create an anti-ham response plan. We are not making this up. Also the superintendent, a fellow who we're gonna really try hard to get on our show tomorrow to explain all this stuff, Leon Levesque, he says quote, these children have got to learn that ham is not a toy. Uh ... so they sa ... you know what this is ... this is crazy ...

CARLSON: [OVERLAPPING] I do think this is going way too far.

DOOCY [OVERLAPPING]: Hello!

From the April 24, 2007, edition of Fox News' Fox & Friends:

DOOCY: Ham sandwich: hate crime --

GRETCHEN CARLSON (co-host): Looks good.

DOOCY: -- or lunch?

[...]

CARLSON: Is that how it ended?

DOOCY: This is what happened in Lewiston, Maine, where a middle-school kid, being funny, doing a joke, put a ham sandwich in a paper bag in front of -- on a table, where some Muslim students would sit. Well, now, that kid is being investigated for possible hate crimes. He's been suspended.

[...]

DOOCY: And the superintendent also saying, "These children have got to learn that ham is not a toy."

[...]

DOOCY: Brian, the Center for Prevention of Hate Violence in that region says they are now working with the school to create an anti-ham response plan. We are not making this up.

[...]

DOOCY: But this is just going kind of crazy. The Center for Prevention of Hate Violence is now working with the school to create -- and I'm not making this up -- an anti-ham response plan. I am not making this up. This is the school district. They're coming up -- in concert with this outfit -- is coming up with an anti-ham response plan. And the superintendent up there says, "These children have got to learn that ham is not a toy."

[...]

KILMEADE: The executive director for the Center for Prevention of Hate Violence -- and I thought this was almost from The Onion. I didn't think this was actually true. But he says, "Placing a ham sandwich in front of a Muslim is an extraordinarily hurtful, degrading thing. They probably felt like they were back in Mogadishu, starving and being shot at." I thought this was a joke.

[...]

DOOCY: So many people are typing in saying, "You're making this story up, right?" No, we're not making it up. We'll tell you all about it in just a moment.

KILMEADE: You know, I hope we're not being duped.

DOOCY: We're not being duped. I've looked it up on a couple of different websites up there, from a local paper.

From the May 16, 2007, edition of Fox News' Fox & Friends First:

DOOCY: On April the 24th, we told you about an incident at a school in Lewiston, Maine, involving one student placing a ham sandwich in front of a Muslim student who -- which offended that student because eating pork is against Muslim tradition. The incident did happen. It did happen.

However, when we checked our various sources on the story, one source was actually a parody and even attributed itself to the Associated Press. In that parody, various quotes were cited to superintendent Leon Levesque that turned out to be fictitious. Had we known the source was not legit, we never would have mentioned them. We apologize if we offended superintendent Levesque and the Lewiston school system. There was no mal intent on our part.

There you go. Just to set the record straight.

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