Government

OAN Slaps Hilarious, Useless Disclaimer On MyPillow Guy's Wacky Election Infomercial

'We can take all his money without all the defamation suits, right?' say OAN executives wrongly.

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(Photo by JIM WATSON/AFP via Getty Images)

There’s nothing like a good disclaimer. Lawyers delight in every scene of a happy family playing frisbee while a fast-talking voice explains, “the most common side effect of Proplixia is ‘instant death’… talk to your doctor today about Proplixia and get living again!” A recent episode of the Shutdown Fullcast took a diversion into a drug manufacturer disclaimer about “severe diarrhea” and pointed out that this copy means that some poor lawyer somewhere out there had to go into work one day and tell the client, “no, we can’t get away with calling this diarrhea, we need to add ‘severe.'” Never ever forget that making that judgment call is actually someone’s job.

One America News Network finds itself in the precarious position of its lawyers living in absolute terror of a defamation suit from Dominion or Smartmatic along the lines of the $2.7B suit lodged against FoxNews while its on-air personalities and business side are locked in a fierce battle with Newsmax for the eyeballs of every wingnut retreating from Fox News as “too liberal” and feeling extreme pressure to push the defamation envelope as far as they can.

Which is why they spent the last few days shouting from the rooftops that Newsmax had been “swept up by leftist censorship” for trying to distance itself — physically if not legally — from MyPillow CEO Mike Lindell.

Running away is not an absolute defense to defamation, by the way.

But when push came to shove and OAN tried to deliver on its commitment to honor Mike Lindell’s vision of Hugo Chavez’s voting machines or whatever flavor of conspiracy theory he’s on right now, their lawyers had to step in and whip up one hell of a disclaimer:

Sponsored

Not since Happy Fun Ball has a disclaimer tried to cover so many bases. If you can’t watch the video right now, here’s a transcript:

Michael James Lindell has purchased the airtime for the broadcast of this program on One America News (“OAN”) network. Mr. Lindell is the sole author and executive producer of this program and is solely and exclusively responsible for its content. The topic of this broadcast is the 2020 election. OAN has undertaken its own reporting on this topic. This program is not the product of OAN’s reporting. The views, opinions, and claims expressed in this program by Mr. Lindell and other guests, presenters, producers or advertisers are theirs, and theirs alone and are not adopted or endorsed by OAN or its owners. In particular, OAN does not adopt or endorse any statements or opinions in this program regarding the following entities or people: US Dominion Inc. (and any related entities); Smartmatic USA Corp.; Brian Kemp; Brad Raffensperger; or Gabriel Sterling. Further, the statements and claims expressed in this program are presented at this time as opinions only and are not intended to be taken or interpreted by the viewer as established facts. The results of the 2020 Presidential election remain disputed and questioned by millions of Americans who are entitled to hear from all sides in order to help determine what may have happened.

The very next image after declaring that these are opinions and not facts is the all caps title card “ABSOLUTE PROOF” which is really just the icing on the cake.

Can OAN really get away with this flimsy effort to keep the victims of Lindell’s lies at bay? Probably not and this disclaimer may actually be what gets them busted.

Sponsored

As a practical matter, we don’t really hold stations liable for advertisements. But it’s certainly an option. The FCC is clear that “Broadcasters are responsible for selecting the broadcast material that airs on their stations, including advertisements. The FCC expects broadcasters to be responsible to the community they serve and act with reasonable care to ensure that advertisements aired on their stations are not false or misleading.”

For most infomercials that makes this an issue for the FTC. But instead of juicers it’s selling defamation. That makes this a little different than complaining about a Shamwow show.

The Broadcast Law Blog has tackled this issue in the context of political advertising. If a political ad produced by a candidate or the candidate’s campaign committee is allegedly defamatory, the station can’t remove it due to the “no censorship” rule. But that doesn’t apply to third-party ads and certainly not to this fauxumentary. For third-party ads, broadcasters do face liability for defamation contained in advertisements it airs. Which makes sense, because the law generally doesn’t allow folks to benefit from tortious activity — in this case taking Lindell’s money and then turning around and saying they can’t be responsible for what he’s saying. As David Oxenford, the author of the Broadcast Law Blog notes, a key consideration is if the broadcaster is “put on notice that the ad is false by a party being attacked in the ad.”

It’s hard to read this disclaimer as anything but confirmation that OAN is very well aware of the potential defamation that Lindell is about to unleash. Ironically, they may have been better off just airing this without any comment and trying to plead ignorance later because now there’s a solid record that the network felt skeeved out enough to — however feebly — try and insulate themselves from liability to specific people and entities.

Great job OAN! If they converted just one Newsmax viewer by courageously airing this special, it will all be worth it. Particularly if that one viewer happens to be worth $3B in advertising.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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