Lawyers for Lachlan Murdoch have spent a good part of the summer threatening Australian news outlet Crikey over a June 29 opinion piece by Bernard Keane with the headline, “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.” In a letter the next day, a lawyer for Murdoch listed 14 “defamatory imputations” stemming from the piece, including that “Mr Murdoch illegally conspired with Donald Trump to incite an armed mob to march on the Capitol to physically prevent confirmation of the outcome of the 2020 presidential election.” Though the piece doesn’t directly identify Lachlan Murdoch, his lawyer agues that he is “reasonably identified” by context.
The threat kicked off a spirited exchange of lawyer letters over the past several weeks, with Crikey responding that Keane’s piece doesn’t contain the “imputations” alleged by Lachlan Murdoch and, in any case, it didn’t cause “actual harm of a serious kind to Mr Murdoch.” Counsel for Lachlan Murdoch demanded a published apology, which Crikey countered with a proposal for a “statement” laying out the disagreements between the parties. That was rejected.
After much back-and-forth, Crikey placed an ad in the New York Times and the Canberra Times daring Lachlan Murdoch to sue. “We await your writ so that we can test this important issue of freedom of public interest journalism in a courtroom,” said the Crikey ad.
In inviting the suit, Crikey argued that Australia’s defamation laws are “too restrictive.” Indeed, as Matt Ford outlined in a December 2018 piece in the New Republic, Australia’s libel laws are very different from ours. Down under, legal standards require that media outlets bear the burden of proving that their reports are true, whereas in the United States, defamation plaintiffs must prove that they are false.
Crikey’s alleged defamation, moreover, would enjoy a much greater level of protection under U.S. law, though a successful defense would still not be guaranteed. In 1970, the Supreme Court issued a ruling — Greenbelt Cooperative Publishing Association v. Bresler — that protects rhetorical hyperbole of the sort that appeared in Keane’s piece. At issue in the case was a newspaper story that quoted people who characterized the actions of a local developer as “blackmail.” Even “careless” readers, concluded the court, “must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable,” as opposed to a literal assertion that the developer was guilty of the crime of blackmail (extortion).
In a U.S. case, Crikey’s lawyers could invoke this precedent to argue that no reasonable reader could conclude that Lachlan Murdoch — any Murdoch — was actually an unindicted co-conspirator in a federal crime in the United States. “The phrases ‘unhinged traitor’ and ‘unindicted co-conspirator’ are used in a loose, figurative sense to headline a column that is labeled ‘analysis,’” notes Clay Calvert, an expert on media law at the University of Florida. “No reasonable reader would take them as assertions of literal facts regarding criminal activity.”
Under Australian law, there’s “no specific doctrine” laying out a hyperbole defense for defamatory statements, according to David Rolph, a professor at the University of Sydney Law School. “It would be a rare defamation case in Australia involving media reporting where a publisher was not found to convey defamatory meaning because the court found the ordinary, reasonable reader would understand the allegations merely to be hyperbole.”
The Murdochs have some familiarity with the hyperbole doctrine, considering that Fox News rode it to a court victory in 2020. Former Playboy model Karen McDougal sued Fox News over commentary by Tucker Carlson accusing her of committing “extortion” against Donald Trump. She’d done no such thing, but the federal judge in the case tossed the complaint: “Accusations of ‘extortion,’ ‘blackmail,’ and related crimes, such as the statements Mr. Carlson made here, are often construed as merely rhetorical hyperbole when they are not accompanied by additional specifics of the actions purportedly constituting the crime,” wrote U.S. District Judge Mary Kay Vyskocil.
Boldface added to highlight a relevant feature of the Crikey story, which supplies no “additional specifics” alleging criminal activity by the Murdochs. To the contrary, the final line in Keane’s opinion piece suggests that they are responsible not for a crime, but for a crisis: “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”
Though Crikey attracted some attention for challenging Lachlan Murdoch to file suit, it showed less bravado in its initial dealings with the mogul’s lawyers. Just 20 minutes after receiving the initial letter from Murdoch’s lawyer, Crikey took down the Keane article as a “goodwill gesture,” according to a subsequent letter from Crikey’s attorney. The site later reposted the piece.
Just goes to show you: It’s a lot easier to practice fearless journalism when the courts have your back.