Fox News journalist withdraws opposition to subpoena in defamation lawsuit
On Sept. 28, 2020, Fox News and its journalist Malia Zimmerman dropped their motion for a protective order to prevent Zimmerman from being forced to testify about a 2017 article and her communications with the defendant in a defamation suit.
The Plaintiff in the suit — Aaron Rich, brother of murdered Democratic National Committee staffer Seth Rich — issued the subpoena on Jan. 7, 2020. Attorneys for Zimmerman moved for a protective order barring her testimony on the basis that her testimony is protected by newsgathering privilege under the First Amendment and New York’s reporter shield law.
U.S. District Judge Richard Leon denied their motion on March 25. Fox and Zimmerman filed a motion for the court to reconsider its decision on April 22.
On Sept. 28, Fox and Zimmerman withdrew the motion to consider, stating in the filing that they had reached an agreement with Rich on “a mutually agreeable approach to Plaintiff’s request for Ms. Zimmerman’s testimony in this case.”
They additionally withdrew the initial motion for a protective order. The details of the agreement were not included in the court filing, and attorneys for Zimmerman and Fox News did not respond to the Tracker’s requests for comment.
Fox News journalist Malia Zimmerman was subpoenaed on Jan. 7, 2020, to testify about a 2017 article and her communications with the defendant in a pending defamation suit.
The article, published in May 2017, reported on the conspiracy around the murder of Democratic National Committee staffer Seth Rich, alleging that he and his brother, Aaron Rich, were embroiled in a plot to steal and share DNC emails with WikiLeaks. Fox News retracted the article a week later.
In 2018, Aaron Rich sued Edward Butowsky, Matthew Couch and America First Media, alleging that they had defamed him by publishing false statements about his purported involvement in such a plot and prior knowledge of his brother’s murder.
According to a court order reviewed by the U.S. Press Freedom Tracker, Aaron Rich alleges that journalist Zimmerman was in frequent contact with Butowsky both before and after her article was retracted. Butowsky also appears to rely on Zimmerman’s article as a basis for his defense in the suit.
Zimmerman’s Twitter account was also among those listed in a 2018 subpoena issued to the social media company. Zimmerman could not be reached for comment.
The January deposition subpoena orders Zimmerman to provide testimony concerning her communications with Butowsky, any knowledge she may have as to whether he acted intentionally or recklessly and Fox News’ decision-making process behind the retraction.
On Jan. 15, Fox and Zimmerman moved for a protective order barring her deposition on the basis that her testimony is protected by newsgathering privilege under the First Amendment and New York’s reporter shield law.
U.S. District Judge Richard Leon denied their motion on March 25, 2020.
In his April 9 order explaining that decision, Leon wrote that Zimmerman’s communications with Butowsky were not protected because he was not her source (nor had Zimmerman claimed that he was), and that in sharing information with Butowsky she “waived any newsgathering privilege.”
Leon also stipulated that the outlet’s decision to retract Zimmerman’s article is not privileged, and even if it were, Aaron Rich had demonstrated the centrality of her testimony to his case.
Fox and Zimmerman filed a motion for the court to reconsider its decision on April 22. Attorneys for Fox News and Zimmerman declined to comment.
In the motion, reviewed by the Tracker, they argue that Judge Leon took an “unduly narrow” view of what is protected by reporter’s privilege. Butowsky — even though he is not quoted in Zimmerman’s piece — should still be considered a source, they said, and the decision to retract an article is made through the same editorial process as the decision to publish.
Fox and Zimmerman urged Leon, if he remained unmoved by those arguments, to vacate his rulings on those issues and to rest his decision to allow Zimmerman’s deposition solely on the determination that Rich had overcome her reporter’s privilege.
“Those questions concerning scope and waiver of the privilege have constitutional dimension, as well as implications for journalists beyond the confines of this dispute, and they should not be decided unless it is necessary for the Court to do so,” the motion reads.
As of this writing, no decision has been reached on this latest motion.
The Reporters Committee for Freedom of the Press, a Tracker partner organization, wrote that the ruling could pose significant First Amendment issues if not rolled back.
“Far from not being part of the editorial process in newsgathering, as the district court found, the decision to retract a story is perhaps the most ‘weighty’ exercise of editorial judgment there is,” writes Gabe Rottman, director of RCFP’s Technology and Press Freedom Project.
“To allow that holding to stand would discourage all news organizations from having these discussions, which would harm newsgathering and the free flow of true information to the public.”