The ad in question says that as an appellate court judge, Alito has “ruled to make it easier for corporations to discriminate … even voted to approve strip search of a 10-year-old girl.” Referring to a document Alito wrote in 1985 while seeking a job in the Reagan administration, it also quotes him as saying that “the Constitution does not protect a right to an abortion.”
However, according Fox News lawyers, the ad is “factually incorrect.”
There are actually several questions this move raises:
1) Is Fox News correct that the ad is “factually inaccurate”
2) Should a news station refuse to air factually inaccurate political ads, if indeed the ad is false?
With regards to the first question, the answer is that the charges are indeed factually accurate, even if the context is omitted, as the website Factcheck.org demonstrates.
Did Alito rule to “make it easier for corporations to discriminate”?
In the case of Bray v. Marriott Hotels, Beryl Bray, a black woman who was housekeeping manager at the Park Ridge Marriott in New Jersey, applied for an open position to be the hotel’s director of services, but was rejected despite being told that she was the “top candidate for the job at a lunch meeting with one of the members of the panel reviewing her application.” Bray sued. When the district court threw out her case, she appealed to the Third Circuit Court of Appeals, which then ruled in her favor, sending her lawsuit back to district court where she and Marriott later settled on undisclosed terms. Alito, the lone dissenter, argued that even though Marriot had failed to follow its own rules, which would have required either the promotion or a written explanation, it was not enough to allow a claim of racial bias to go to trial.
Alito then accused the majority opinion of weakening the burden of proof on Bray and other plaintiffs to the point where “all the plaintiff needs to do is to point to minor inconsistencies or discrepancies in terms of the employer’s failure to follow its own internal procedures in order to get to trial.” By implication then, if he was accusing the majority of weakening the burden of proof (i.e. making it harder for corporations to discriminate), than would not the opposite be true of him, that he argues strengthening the burden of proof (i.e. making it easier for corporations to discriminate)?
Did Alito vote to “approve the strip search of a ten-year-old girl”?
The case, Doe v. Groody, centered on whether a Pennsylvania couple had the right to sue local police officers who searched their home, themselves and their daughter for methamphetamines on the basis of a tip from an informant claiming to have bought drugs at the house. The police argued that a magistrate had approved the warrant based on a police officer's affidavit that sought permission "to search all occupants of the residence and their belongings" (emphasis added.) The strip search of the wife and daughter was conducted by a female officer, in private, in an upstairs bathroom. No contraband was found.
"John and Jane Doe" (as the anonymous couple went by) filed a civil suit in District Court against the officers for violation of their and their daughter's Fourth Amendment rights. The officers moved for summary judgment arguing the searches fell within the scope of the search warrant and therefore they were covered by qualified immunity, which protects them from civil liability for actions performed during the execution of their duties. The question the Third Circuit (including Alito) faced was this: Did the police officer's affidavit requesting the search warrant widen the parameters of the search beyond what was stated in the warrant itself?
The majority ruled that since only "John Doe" was named in the search warrant itself, and since the warrant makes no reference to the attached affidavit, the officers lacked probable cause to search the wife and daughter and therefore violated "their clearly established Fourth Amendment rights."
Alito dissented, saying that a "commonsense and realistic" reading of the warrant gave the officers the impression that "all occupants" of the home were to be searched, and that they were acting within their professional duties in searching the wife and girl.
Said Alito: “I share the majority's visceral dislike of the intrusive search of John Doe's young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face.”
In short, the charge that Alito “voted to approve strip search of a 10-year-old girl” is factually accurate.
Did Alito say that "The Constitution does not protect the right to an abortion."
In a 1985 application he wrote for a position as a Deputy Assistant Attorney General in the Reagan administration, Alito wrote the following:
“I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.”
So yeah, he did say that.
In short then, Fox is (GASP!) wrong. Indeed, they are even more wrong than when conservative Wall Street Journal columnist Manuel Miranda, Pat Robertson, or Fox News’ very own Sean Hannity accused Justice Ruth Bader Ginsburg of believing in “polygamy, legalized prostitution, and lowering the age of consent to 12 years old.”
Question II: Should news stations refuse to air inaccurate ads?
However, political ads require more than editorial decision-making. For a news channel to refuse to air a political ad and for me to agree with them, the following conditions MUST be met:
- The ad must indeed be “factually incorrect” and not simply misleading.
- Commentators and news programs would not show the ad free of charge during their programming to debate, discuss, and explain an ad so dishonest, it has been banned from the station.
- Standards must be applied equally to all ideological and partisan views
The reality of the matter is that very few ads (indeed, none that I can think of) are factually incorrect. They mislead, distort, and take out of context, but the factual foundation is almost always easily verifiable, if not by you and I than by the thousands of counter interest groups who keep an eye on these things.
Those very few ads that can be identified as false often generate so much controversy, the vast bulk of Americans are far more likely to see it for free on news programs than they are to see it as a commercial between them.
Finally, the last standard is simply unrealistic in today’s partisan world. Remember that CBS miniseries that was never aired called the Reagans, pulled because conservatives thought it was historically “inaccurate”? Remember when that same station aired a TV movie about Hitler that was so inaccurate, the award-winning author of the book from which the film was based on walked out when he saw the portrayal of Hitler as too… inaccurate? Apparently, making Hitler look too good was preferable to making Ronald Reagan look too bad since the Furor was aired while the Gipper was pulled. And how about when Maryland-based Sinclair Broadcast Group (a huge media company with links to the White House) barred its ABC-affiliated stations from airing an episode of Nightline devoted entirely to listing and showing pictures of more than 700 US soldiers killed in Iraq?
If anyone doubts the reality that Fox News is nothing more than a mouth piece for the Republican party, a partisan arm of the RNC, feel free to read this analysis by FAIR. For anyone else, it is clear that Fox is chosing not to run the ad for one very simple reason: they disagree with the messenger and the conclusion. The decision is surprising to me only in the obviousness of its bias
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