Rich v. Fox News Network, LLC

Facts

Seth Rich-a 27-year-old DNC staffer-was shot and killed a few hundred feet from his home in Washington, D.C. The Metropolitan Police Department determined and continues to believe, that his unsolved murder stemmed from a botched robbery. After Seth's death, a 'conspiracy theory' emerged. The theory was that 'Seth had leaked thousands of DNC emails to WikiLeaks' and was murdered as a result. Seth's parents, Ps, objected to this theory and issued a statement asking the public to 'refrain from pushing unproven and harmful theories about Seth's murder.' Others looking at the facts thought that something was wrong with the manner of the botched robbery theory and began to investigate. Ed Butowsky (D), a guest commentator on Fox News, contacted Ps. Malia Zimmerman (D), a Fox News investigative reporter in close communication with Butowsky, also made independent contacts with the family. After these initial conversations with Ps, Butowsky and Zimmerman planted a source inside the family. Rod Wheeler, a former detective turned private investigator, had just signed a contract with Fox News (D) as a paid contributor, for both on-air appearances and 'off-air assistance, as requested by Fox.' Butowsky and Zimmerman asked for Wheeler's help. On the same day as his meeting with Wheeler and Zimmerman, Butowsky emailed Ps offering to hire an 'independent private investigator' on the family's behalf. Butowsky then set up an introductory meeting between Wheeler and Ps. He instructed Wheeler to 'make sure to play down Fox News, and don't mention that you know Zimmerman.' Wheeler met with Ps and behaved as instructed. Butowsky then proposed to Ps that they sign a draft engagement agreement for Wheeler's investigative services. The draft gave Wheeler authority to speak to the media on behalf of the family. Ps declined. Playing on Ps' need to 'to get closure, as a family,' Butowsky urged them to allow him to pay for Wheeler's services. Butowsky falsely assured Ps that, 'although he would finance Joel and Mary's retention of Wheeler, Butowsky would respect Wheeler's legal obligation not to speak to him or anyone other than Ps about the investigation.' Eventually, Ps signed with Wheeler and expressly prohibited 'media representation, unless otherwise permitted by P in writing,' and stated that Wheeler 'shall not release any information regarding the investigation . . . without prior authorization.' Wheeler continued to work with Butowsky and Zimmerman in furthering the false Seth-WikiLeaks story. In April 2017, Wheeler and Butowsky met with the White House Press Secretary. They shared materials related to the investigation and promised to keep the White House informed. Moreover, with the help of Zimmerman and relying on information provided by her, Wheeler met with the lead detective on Seth's case, who-as Butowsky told Wheeler-would either 'help us or we will go after him as being part of the coverup.' Butowsky and Zimmerman called Wheeler 'to falsely inform him that they had developed an FBI source supposedly confirming' that Seth had been in contact with WikiLeaks. Zimmerman and Butowsky began to put pressure on Wheeler to go on the record as a named source for the Seth-WikiLeaks story. On May 14, Zimmerman informed Wheeler that President Trump wanted her article published 'immediately.' The next day, Zimmerman told Wheeler that 'bosses at Fox want her to go' with the story on May 16, and Butowsky encouraged Wheeler to 'close this deal, whatever you got to do.' That same day, Zimmerman also sent a text to Wheeler, asking if he was with Butowsky, because Butowsky was 'supposed to get more info on Seth Rich today,' and 'if Butowsky does we need to figure out what Wheeler can say on the record.' Wheeler became the named source in the Fox News articles about Seth's murder. On May 16, Fox News published two pieces-both penned by Zimmerman. The first article was titled: 'Slain DNC Staffer Had Contact with WikiLeaks Say Multiple Sources.' The article attributed a quote to an anonymous federal investigator: 'I have seen and read the emails between Seth Rich and WikiLeaks.' The article continued: 'The revelation is consistent with the findings of Rod Wheeler, former DC homicide detective and Fox News contributor and whose private investigation firm was hired by Rich's family to probe the case.' The article closed: 'Rich's father, Joel Rich, could not be reached for comment, but told Fox News in January that he didn't believe his son would leak the emails. However, he said above all, his son 'wanted to make a difference in the world.'' The second article was titled: 'Family of slain DNC staffer Seth Rich blasts detective over report of WikiLeaks link.' Id. at 101. It read: 'Rod Wheeler, a retired Washington homicide detective and Fox News contributor investigating the case on behalf of the Rich Family, made the WikiLeaks claim, which was corroborated by a federal investigator who spoke to Fox News.' The article clarified that, although Wheeler was paid by a third party, Ps were Wheeler's clients and Joel had signed the contract for Wheeler's services. It also added: '[A] spokesman for P's family on Tuesday said Wheeler was not authorized to speak for the family.' Allegedly, Fox News was aware of the scheme all along. Butowsky had represented to Fox News that he was one of the key players behind the story. It is alleged that, on the eve of publication, Butowsky wrote an email to Fox News producers stating: 'If you have any questions about the story or more information is needed, call me' because 'I'm actually the one who's been putting this together but as you know I keep my name out of things because I have no credibility.' About giving the story to the local news channel, Zimmerman sent a text to Wheeler saying: 'New York won't be happy. . . . This could be really bad if the Fox News channel thinks you fed an exclusive we invested a lot of time and money into to a local channel just hours before we were going to publish.' The day after publication, Wheeler told Newsweek that his 'information' from the unnamed 'federal investigator' was only a repetition of what Butowsky and Zimmerman had told him. Fox News instructed Zimmerman to keep those false statements in the article. Various Fox News reporters frequently commented on the story and spread it widely. Ps formally asked Fox to retract the story. Zimmerman replied that 'much of our information came from a private investigator, Rod Wheeler.' When confronted by Wheeler, Zimmerman explained: 'that's the email that Fox asked me to send . . . . They wrote it for me and they told me to send it to [Joel].' Id. Five days later, Fox retracted the story because 'the article was not initially subjected to a high degree of editorial scrutiny.' Fox News guests continued to reference the retracted article for months. To this day, Fox News makes available online at least two videos repeating, almost verbatim, the content of the Zimmerman story. Butowsky continued both to contact Ps and to exploit publicly their connection to Wheeler. On May 25, he wrote to Joel: 'You should call Malia Zimmerman. She found the person and the gun that was used to shoot your son. That is what you wanted, correct? . . . When you find out who did it you are going to be very very emotional.' At least up until the filing of the complaint, Butowsky continued to leave voicemails and send texts to Joel. He kept on exploiting Ps' name to fuel the conspiracy theory on Twitter and other news outlets. Ps began exhibiting symptoms of post-traumatic stress disorder and social anxiety disorder. Mary no longer feels comfortable in public for fear of being asked about WikiLeaks. And, on the same day as the Zimmerman article Mary received a job offer, she could not accept it because these events aggravated a preexisting neurological condition. Ps sued Ds alleging: (1) intentional infliction of emotional distress; (2) tortious interference with contract; and (3) negligent supervision and/or retention against Fox News only. Ds moved to dismiss the complaint under Rule 12(b)(6). The court dismissed the claims. Ps appealed

Issues

Rule of Law

Holding and Decision

Legal Analysis

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