Biden v. Fox News

Last week, Hunter Biden’s lawyers sent Fox News a 14-page letter saying they planned to sue. Biden, according to reports, is alleging that Fox defamed him repeatedly over a period of years. The motive, according to the letter, was simple: profit.

Whether or not it’s really that simple and how the legal action will intersect politics, with his father running for reelection, remains to be seen. Joe Biden seems to do better when Hunter is out of the news cycle, so unless there is a statute of limitations issue—there doesn’t appear to be one—the question is, why now?

The letter itself has not been released. However, it appears to have been seen or read to multiple news outlets that are reporting on it, including NBC, Axios, ABC, CNN, and The Daily Beast. So, there is every reason to believe this is real.

One important aspect of a defamation case in most states is the requirement that before filing suit, the plaintiff must demand a retraction of the statement from the defendant. Typically, this means a defendant must retract the statement in the same forum and with the same prominence as the original defamatory statement was made. If the defendant does that, the dispute is over. No lawsuit.

Biden reportedly made a demand for a retraction in his letter. If he gets his retraction, that will be big news. But asking for a retraction in advance of litigation and not getting one can also be helpful to a plaintiff. Hunter Biden is a public figure, so to make out a defamation case, he’ll have to establish that Fox acted with actual malice—reckless disregard for the truth or falsity of each item they published about him. This is one of the most difficult elements to prove in a defamation case, and once a defendant comes forward with convincing information that shows the statement was false, refusing to retract it is good evidence it was made in bad faith.

Defamation cases can be brought in federal court, but there has to be “diversity” between the parties. Diversity means, essentially, that they are residents of two different states. That can get complicated with corporations, and you will recall that earlier defamation cases against Fox were brought in state court in Delaware (Dominion) and New York (Smartmatic).

Biden is alleging that hundreds of articles and broadcast segments were defamatory. He says some of them were based on the now-debunked bribery allegations House Republicans also used to attempt impeachment proceedings against his father. The source of those allegations was an FBI informant, Alexander Smirnov, who has since been indicted and pled guilty to lying about them. The indictment said Smirnov’s claims made to the FBI were “a fabrication, an amalgam of otherwise unremarkable business meetings and contacts.” We discussed the Smirnov indictment in February. And again as more information became available. Biden’s lawyers want Fox to include updates with editorial notes for online articles about the bribery allegations and to require its hosts to say on-air “that they have been sharing a debunked allegation from a source who has been federally indicted.” That would be a win for Hunter Biden and for his father’s campaign.

Biden also complains about a fictional mock-trial series Fox ran in 2022 called “The Trial of Hunter Biden” and the unauthorized use of personal images of Hunter Biden. The letter says some of the images are from the years of Biden’s drug and alcohol addiction and involve sexual content. His lawyers told Fox they’ve violated laws prohibiting revenge porn and that the use of the images is copyright infringement. It may also be a tort (a civil wrong) that occurs when an individual has been publicly portrayed in a false light. They want the mock-trial show taken down.

Biden’s lawyers told multiple news outlets they have not heard from Fox since the letter was delivered and are now prepared to file their lawsuit imminently. No word on how news organizations learned about the letter and threatened lawsuit.

Attacking Hunter Biden is standard fare for Republican politicians and conservative media alike. His missteps in his personal life have made him an easy target. But some of the allegations against him, like the suggestion his father received bribes through him from a Ukrainian company he was on the board of, are fabrications.

Fox has already been involved in two high-profile defamation cases. The case brought by Dominion Voting, which it settled for $787 million, involved the spread of the Big Lie and other conspiracy theories during the 2020 election. The settlement came after a devastating discovery process for Fox, which led, among other things, to Tucker Carlson’s firing. Rupert Murdoch sat through a humiliating deposition where he was forced to concede he’d never seen any evidence that Dominion voting machines were used to commit fraud. The question is whether Fox has the appetite for more. Of course the alternative, a retraction, would mean helping the Biden campaign and possibly alienating more viewers.

Civil lawsuits can move slowly. If there isn’t a retraction, it’s not impossible, depending on where the case is filed, that discovery could be underway by the time the election takes place this fall, but it would be early times. Discovery doesn’t usually become public until the parties file dispositive motions, which could be several years down the road. It’s hard to see political advantage in this sense from filing now, beyond stories about the act of filing.

Hunter Biden is facing criminal prosecution in California on tax charges and in Delaware on gun charges. It’s possible a civil lawsuit might generate information he could use in his defense. The Dominion case led to the revelation of communications between Fox News personnel and people close to Trump. If discovery in this case generated information suggesting an effort to smear Biden to damage his father, for instance, that could—I stress could because no evidence has surfaced to date despite Biden’s claims of vindictive prosecution, which Special Counsel David Weiss denies—be the motivation to file a lawsuit now. Biden would bear the burden of coming forward with evidence to support allegations he was singled out for prosecution before he could present this defense to a jury. That would have a spillover effect in the political arena, but the timing is dicey.

The reality is that with the two criminal cases underway, it may be impossible for Hunter Biden to stay out of the news as the election gets underway. A defamation case could focus public attention on the fact that Trump’s claims about both Hunter Biden and his father are lies and might undercut some of the damage Trump does with the constant drumbeat of untrue claims about “Crooked Joe Biden.”

It would be something if Fox decided to retract years of falsehoods in the manner Biden has demanded. They did not do that in either the Dominion or Smartmatic cases, so it may well be that we’ll see a complaint filed by Biden against Fox in the next days or weeks. Never a dull moment.

We’re in this together,

Joyce