The legal idea of “standing” creates a problem.

According to the principle of standing, no one can sue for damages unless they’ve suffered an identifiable, concrete injury that can be measured in dollars and cents.

Dominion is suing FOX News for damages they’ve suffered as a result of FOX defaming the company with accusations FOX knew were false. That injury gives Dominion standing.

That standing enabled Dominion to compel FOX to show themselves through internal documents and testimony given under oath.

That evidence, in turn, has enabled Dominion to present a picture of FOX News that has stunned the world. (Except, of course, for FOX’s own audience — as FOX is forbidding its hosts from telling its viewers about this, one of the world’s biggest stories in recent weeks.)

No wonder they want to keep it hidden. FOX’s own words expose the utter moral corruption of that corporation:

• From the anchors to the executives to the board to Rupert Murdoch — FOX knew they were lying to their viewers about the election being stolen. (Anchors like Tucker Carlson, Laura Ingram and Sean Hannity used words like “insane” and “nuts” to characterize the people and ideas they brought onto the air to spread what those FOX stars knew were lies.)

• In sworn testimony, Rupert Murdoch (chairman of FOX) admits he knew FOX was lying about the legitimacy of the election, but did nothing to stop it. Murdoch declared “It’s not about red or blue — but green,” meaning money.

• But it was also about “red,” in that it was a continuation of a close partnership between Trump and FOX when FOX promoted Trump’s Big Lie, supporting Trump’s becoming the first loser of an American presidential election to try to overturn an election he had clearly lost.

The picture of this “news” organization is vivid in the clarity of its ugliness:

• Its willingness to deceive and exploit its audience (and its contempt for its audience).

• Its lack of respect for the truth, and for the ethics of the profession of journalism that are supposed to apply to a news organization.

• Its willingness to abet an assault on the American constitutional order if that gets them more money and power.

One can reasonably hope that some goodwill come out of the ugly truth about FOX being laid bare -- an amoral, dishonest, opportunistic force, willing to help overthrow the constitutional order by lying to the people who trust them.

But, whatever may be the beneficial results of what Dominion’s suit is uncovering, that truth could so easily have remained buried. It only came out because FOX went after a particular corporation and inflicted a clear injury. Standing.

But FOX could have sold that same dangerous lie about the election to its viewers without giving anyone the “standing” to sue. FOX had other lies about the election it was already selling its viewers. (Falsehoods about foreign meddling -– from Italy to China to Venezuela — to name but one. No one who could compel FOX to reveal the truth about what it was doing.)

That’s what shows a big problem with “standing.” FOX was inflicting damage on the nation compared to which the injury suffered by Dominion is trivial. But without Dominion, there’d be no price to pay.

Dominion will probably get the $1.6 billion in “compensatory damages” for which it is suing FOX.


• What monetary value can we put on the damage done to the American nation by what FOX did, in knowingly feeding lies to their viewership that fed the fires that resulted in an armed attack on the U.S. Capitol and the constitutional process

• How much would Americans need to be paid to compensate for the damage done to the nation because tens of millions of Americans — believing the lie that Biden stole the election — will not accept the legitimacy of the presidency that the American people chose in the constitutionally prescribed manner?

• And what monetary value could compensate our nation for how much this Big Lie has strengthened a tendency, increasingly visible in our politics, for one party not to respect the outcome of any election they lose?

FOX not only knowingly deceived its viewers, but FOX’s lies were of the most dangerous kind imaginable.

We citizens surely lose much of value when a powerful company willfully lies in ways that steal our precious democratic heritage from us. And some appropriate way should be found to give standing to those suffering such injury — deeper than dollars and cents.

I don’t claim to know what should be done about “standing.” But it seems clear to me that it is not OK that a company could act in so destructive away — selling lies that threaten American democracy -- and simply get away with it (as FOX might easily have done).

So the question needs to be asked:

• What can be changed in the law — consistent with the First Amendment -- so that citizens, who’ve been injured by a media company that assaults our constitutional order with deliberate lies, can expose such knowing deception, as Dominion has done with FOX?

• And how can the law provide an appropriate way to enable those citizens to compel that company to pay a price for such despicable conduct?

Andy Schmookler is the author of “The Parable of the Tribes: The Problem of Power in Social Evolution and of WHAT WE’RE UP AGAINST: The Destructive Force at Work in Our World—and How We Can Defeat It.”

(11) comments


When you can't refute a logical and factual presentation(I'm referring to Mr. Schmooklers comments) throw out Hunter Biden's laptop and Antifa. Oh and yes Joe Biden has condemned Antifa.

Andy Schmookler

Ros, I just formed an image of you in my mind, and I'd like to check it out with you. And please tell me if this trespasses, and is not something you'd welcome our doing here in public. You've been so open, I'm thinking it's OK to go for it.

So I see you as a lifelong Republican, who first became aware of politics in the latter years of Eisenhower's Presidency. You had a distinguished career as an officer in the U.S. Navy, and it is well established that people who gravitate to the military are likely to have a conservative (and Republican) leaning.

You lived the life of an American patriot, and voting Republican was something that felt to you a good expression of that patriotism.

You were far along into adulthood when the Republican Party began to change in some fundamental ways. Fundamental in terms of its moral nature. Fundamental in terms of its spiritual nature. Fundamental in terms of its way of operating.

(We could start with when the leading force of the Republican Party was Newt Gingrich -- as well as Rush Limbaugh -- when the Republican Party turned into something that people like Eisenhower and Reagan (not to mention those guys up on Mount Rushmore) would have deplored.

I am imagining that this put you in an unwanted position. As I imagine it, you didn't have any difficulty maintain your sense of the Republican Party as something worthy of your allegiance up through the Bush presidency, and that you didn't see anything completely unacceptable about how it behaved when Obama was President. But then came the era of Trump, which I imagine has disturbed you in ways that you alluded to in our online conversation last week-- namely when you wanted me to understand that your Republicanness did not mean that you approved of everything happening in Republican-world.

You worked to meet the challenge of maintaining your home in the Republican Party while not denying that there are some people and some activities going on in the Party that you don't like.

Maybe one way to do that is to adopt a Both Sides way of seeing things. You are acknowledging that there are defects on the Republican side, but you don't have to quit being a good patriotic Republican by continuing to give that party your allegiance. And then you express that allegiance by protecting the Republican Party from the likes of me.

But we're back to the issue of symmetry, which we broached last week. You enable yourself to acknowledge the ugliness you see in the GOP by claiming that its a universal problem, with the Democrats as bad as the Republicans about whatever the sin.

But that's not the reality of the situation. The destructive energy is not entering into our national dynamics drawing symmetrically from the two major parties. There are some defects on the left, some of which I'd be up for discussing (e.g. I think that some long-oppressed groups are taking things too far).

But in the central drama of our times, what we have is an asymmetry between a Republican Party that is threatening to destroy the heart of America -- the constitutional order with the rule of law -- and a Democratic Party that is the only means by which American democracy can be protected (because in the American system the struggle for power wiil be between two major parties, so that if one of them becomes the instrument of a Force of Brokenness (Fascism) we citizens are compelled to look to the other (albeit flawed) Party to defend American democracy and the rule of law.

The Democrats have been drawn into a battle in which they are the defenders of the nation's ideals. They have been blind in not seeing the problem until it had become grotesquely ugly, not recognizing what they were up against. They have been weak, in not stepping forward to fight to protect the Constitution even to the extent they could see it being assaulted. (I've written about how Obama basically forfeited a battle it was his obligation to fight when the Republican Senate abused their power of "advise and consent" to steal a Supreme Court seat from the President to whom the Constitution gave the power to name the next Supreme Court Justice, subject only to the role of the Senate to make sure the candidate was within the range of suitability.)

But the liberals have been unusual pure and unusually right in all the political battles of our times. The Republicans represent such destructive choices -- fomenting conflict between the races, blocking action of climate change, not accepting the results of elections -- that whenever the Democrats fight them, they are necessarily pushing in constructive directions.

As the right has become more lawless, the left has kindled a beautiful love of the rule of law. It has been beautiful, over these Trump years, to see so many people of the legal profession -- formed Federal prosecutors, professors of constitutional law, heads of programs in the FBI -- coming forward and speaking about the "rule of law" in reverential terms, and expressing their rejection of the lies and crimes being committed by a political party more fundamentally destructive than any political party in the nation's history.

(The Democratic Party that allied with the Slave Power fostered great destruction, too, with the coming of the Civil War. But that was only in that one area -- slavery, over which the nation fractured -- whereas today's Republican Party actually plays a mostly destructive role in EVERY issue we come upon.

Giving us a theocratic decision on abortion, an issue dealt with by the right's declaration of war.

Taking an absolutist position on guns, inflaming a whole swath of men who will deal with the gun issue as one to FIGHT about, rather than to seek the proper balance between individual rights and public safety.

Yes, EVERY issue -- even the two issues around which the Republicans gathered massive support from one-issue voters. The longer Americans are at each other's throats over abortion or guns, the more power to the Republican Party. So even on those issues, even their supporters should see how much it is to the Republicans' advantage that we as a people don't reach reasonable compromises on these chronic issues, and live with the results.

There's a party that benefits from Americans being unable to get together to achievee their common purposes. Guess who benefits politically from it being impossible for people who are embattled over abortion or guns to work together to accomplish things on which they agree?

I do wish that the liberal side wasn't afflicted with some of the follies I see. I even encounter some of it where I post on liberal websites. But the heart of our politics right now doesn't require us to worry about the folly of the liberal side nearly so much as we need to take power away from the destructive force that's taken over the Republican Party and made it -- morally and spiritually -- the opposite of the virtues you saw in the Republican Party when, as an honorable and capable patriotic Naval officer, you gave that Party your allegiance.

As I see it, you need to choose between your life-long allegiance and your values. Because the political party that you defend against me is the enemy of your values. Not just having this defect or that frailty like the Democratic Party, but a force that is quite openly and dramatically assaulting what you value.


Hi Andy, Regret the late response as I have been off the net all day and soon to depart again shorty ….Thank you for the kind words and Yes, you are correct there are many personalities and positions in the Republican Party that I do not embrace. Similarly, as you have stated I am sure the same is true with you and the Democratic Party. I doubt if you support the actions of ANTIFA which your party has failed to condemn nor suppression of free speech.

So, at the end of the day, we are both faced with the proverbial Hobson’s choice. Not sure if you saw GOV Youngkin on CNN last night but obviously, he is a member of the Republican Party by choice and to me represents the values tand abilit to reach across the aisle that I stand for.

I have nothing but the greatest respect for you and yes as your stated so eloquently that as a people we need to achieve reasonable compromises on these chronic issues and live with the results. Best and have a good week, Ros

Andy Schmookler

I appreciate your kind words as well. I also wish to note the recurring problem:

Sorry, about that Antifa-and-the-Democrats thing, it seems you've again been sold a bill of goods. I follow things closely, and I've never seen a single sign of any connection between the Democrats and this tiny obscure non-organization Antifa. And I HAVE heard Democrats completely disown it.

Meanwhile, the bulk of the Republican Party has subordinated itself to a leader who tried to seize power that "the will of the people," expressed through the constitutional process, had taken from him to give to someone else.

The FBI, as I said last week, has in recent years identified not Antifa, or anything on the left, as the major domestic threat to the United States. Rather, the FBI has now repeatedly identified right-wing extremists (militias, etc.) as the biggest threat. Indeed, a bigger terrorist threat than anything from outside our borders.

I'm refraining from commenting on Younkin, whom you mentioned last week as well. When he was elected, I was prepared to think well of him. But watching him in action, I have found that what looked on the surface like it might be appealing was, at the spiritual and moral levels, rather repulsive. Not meaning to offend you.

You mention, about Youngkin, that he's shown an ability to reach across the aisle. I've seen nothing from him of that sort, but I will admit that I don't follow the politics of Virginia as closely as I used to (I spend maybe an hour a week). Not only have I not seen him reach across the aisle, but it has seemed to me that his strategy from the moment he got elected has been to try to appeal to the more rabid parts of the Republican Party. It looked to me that he thought that his best chance to get the Republican nomination was to ingratiate himself with the people who like political leaders who focus on the most divisive (usually cultural) issues.


Andy not to beat a dead horse ….but I RE “The FBI, as I said last week, has in recent years identified not Antifa, or anything on the left, as the major domestic threat to the United States. Rather, the FBI has now repeatedly identified right-wing extremists (militias, etc.) as the biggest threat. Indeed, a bigger terrorist threat than anything from outside our borders.” I would ask you how many deaths in the US are a result of right-wing extremists versus how many deaths in the U.S. have occurred in the U.S. due to fentanyl poisoning (~ 100,000) which can be attributed to our current open borders policy which has only emboldened the Mexican Cartels through profits gained from human trafficking and the flood of illegal drugs across the border. How can you not see the obvious ? Best, Ros


Thanks, Andy, for framing the facts as not just an assault on Dominion, but as an assault on our democratic institutions. The evidence is clear, with Murdoch under oath, and his vile 'personalities' in writing, all of whom have admitted their intent to deceive in a desperate attempt to hold on to viewers.

Even if the Murdoch/GOP propaganda network is rightfully destroyed, other bad actors are waiting in the wings.


RE “an assault on our democratic institutions” let’s not forget the Twitter Files released by Elon Musk give us an understanding of how and why the social media company decided to censor the Hunter Biden laptop story and thus our democratic Institution” of the free press. The New York Times recently confirmed the authenticity of President Biden's son's missing laptop that turned up in a Delaware repair shop and contained dozens of damning emails from his time at the Ukrainian energy company Burisma. That didn’t stop over 50 former U.S. intelligence officials — including former Director of National Intelligence James Clapper — from weighing in on the story in October 2020 and which the news media carried without questioning its veracity.

Andy Schmookler

This Twitter Files thing is a made-up, false thing as far as I have been able to tell. It's not quite as much of a lie as the idea that Democrats are into "grooming" children to be sexually abused by pedofiles.

-- even if Hunter Biden has shown character flaws, which he has, it makes no sense to treat it as a matter of public, political concern. It seems that Joe Biden has committed no important wrong-doing, and his son -- whose life has been in some ways a troubled one -- is really not a national issue.

Acting like there is a Both Sides aspect to the problem of "an assault on our democratic institutions" is a complete distortion of the picture. I can't understand how one might think that it would appear that way.

The Republican Party has conducted a sustained attack on the constitutional order, even going back to the days of Newt Gingrich and going up through Karl Rove and birtherism and the theft of a Supreme Court and culminating in a denial of the validity of an election they'd lost, with the major part of the Party staying subordinate to a former President who'd attempted to overthrow American democracy right before everyone's eyes.

Not to mention how Senate Republicans twice protected a President whose assault on the Constitution they'd taken an oath to defend and protect was absolutely unprecedented in all our nation's history.

(Never before has the losing candidate in an American presidential election refused to accept the outcome. But even before that, he had shown himself as impeachable in more ways than anyone could readily imagine a president might be.)

Yet the party that's assaulting our constitutional order refused to honor their oath of office and remove a President who'd set never-to-be-surpassed levels of abuse of power in office. (Even his use of the PARDON was an abuse of the Constitution. No one had ever seen anything like how he used that as a way to protect his accomplices in crime. Yet one of America's two major parties continued to do the bidding of a President who'd dangle pardons to keep his fellow political gangsters from "squealing" on this President's impeachable crimes.

But then there's the nothingburger of the Twitter Files. And Hunter Biden's laptop.

Even if there was anything much worth saying about either of them, they'd be such small potatoes compared to the whole set of things that the Republicans have been doing to our "democratic institutions."

The dichotomy in our politics is not subtle. It's not hidden. What the Republicans are doing is not, like Nixon's crimes, hidden from view. They are all right out front.

All we need to know is that the Republican World -- the Trump crowd and the Fox Crowd -- knew that they were pervading a Lie about the stolen election. That should be sufficient to show just how completely unacceptable that Party should be to an American patriot like yourself.

If we believe in the Constitution, we are called to be passionately opposed to a political party that has shown that it will not hesitate to damage our constitutional order if they can find a way to get more power thereby.

It seems strange to me that anyone would raise up those comparatively trivial matters as if they belonged as some kind of counter-balancing BOTH SIDESISM, as if these at most trivial matters were of a magnitude comparable to what the Republicans have done -- to name one more assault on American democracy -- to disenfranchise many of America's most vulnerable but still entirely legitimate citizens (and doing this through wielding a big lie about voter fraud, which every study says is so small and issue as to be almost non-existent. But the Republicans used a lie about voter fraud to cover up their real purpose, which was to keep some American citizens -- who vote for their opponents -- from exercising their constitutional right to have a voice in how their nation is governed.

It's not subtle, it's not minor. It's not the least bit ambiguous. The picture on the other side of the political fence is not at all like that.


Great job in your rebuttals Andy. Resorting to Hunter Biden's laptop was a weak offering which as you have said is noting more than a blip on the radar in comparison to what Republicans have been doing to our "democratic institutions".


Andy let’s not forget that in America unlike fascist countries one is innocent until proven guilty – protections found in the 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution. This presumption of innocence means that any defendant in a criminal trial is assumed to be innocent until they have been proven guilty. I believe you would agree with me and support this concept – unlike dictatorships this is why we in America have a judicial system where in theory there is equal justice under the law.

So rather than attempt to condemn the defendants in the court of public opinion let’s let the judicial process work as our Founding Fathers envisioned. If those charged are guilty of the crimes as you allege then they should be held accountable and suffer the consequences to the fullest extent of the law.

This is how a Democracy works. Best, Ros

Andy Schmookler

Do you really believe that should be our posture here, Ros? I.e. that we American citizens should operate by the standards that we would have to apply to a criminal trial.

That's a recipe for us citizens failing in our duty to make our best judgments and use our political power -- vote -- accordingly.

The legal system sets things up in a very stringent way to prevent people from being deprived of their liberty and/or property without due process. And that means a public trial with rules of evidence and a jury of the defendant's peers.

As citizens, we are not exercising the power of jurors, but of voters who make the best judgment they can on the basis of less evidence and less focus than jurors, hearing the case day after day, devote to making their judgment.

As citizens, we need to pay attention to draw conclusions even as we maintain openness to new information and argument. And beyond that, I feel that whatever I proclaim about guilt or innocence of individuals or of parties is eminently worth declaring. Because I have been paying very close attention to this whole picture for quite a number of years, and follow the current developments of these times, that I feel confident in the judgments I make.

A citizen who takes on the role of sharing how things look to him after careful study-- taking on that role because that is who he's spent a lifetime training to be, and because taking on that role is a continuation of what he's done in his entire life's work .

We need to come to judgment, and it should be clear to everyone who is rationally processing the information that we're shown when we look at the stream of events, that every patriotic American citizen is obliged to come to the judgment that what has happened in Conservative America has been a movement from a real degree of decency over to the dark side. And we should perceive all the lies and crimes and other ugly things and draw the judgment, "Guilty of doing damage to America, and unworthy of having the people give it any power over our nation's destiny."

Welcome to the discussion.

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