Court revives suit alleging Fox News inflicted 'emotional torture' on Seth Rich family

Michael Isikoff
Chief Investigative Correspondent

A federal appeals court on Friday revived a lawsuit against Fox News brought by the parents of slain Democratic National Committee staffer Seth Rich, concluding there are plausible claims that the conservative cable network was party to a “campaign of emotional torture.”

The long-awaited opinion by a three-judge panel in New York, reversing a lower court ruling, opens the door for the lawyers representing Seth Rich’s parents, Joel and Mary Rich, to obtain internal documents and depose top Fox News executives about a May 16, 2017, story falsely alleging that the DNC staff member had leaked internal party emails to WikiLeaks prior to his murder.

“We would not wish what we have experienced upon any other parent — anywhere,” Joel and Mary Rich said in a statement Friday they provided to Yahoo News. “We appreciate the appellate court’s ruling and look forward to continuing to pursue justice.”

Mary Rich and her husband, Joel, hold a photo of their late son Seth in their home in Omaha, Neb. (Photo illustration: Yahoo News; photo: Matt Miller for the Washington Post via Getty Images)

The story in question, authored by Fox News staffer Malia Zimmerman, gave mainstream prominence to one of the most insidious conspiracy theories to arise out of the 2016 election. Suggesting that Rich’s death was a political assassination, it was promoted at various times by WikiLeaks founder Julian Assange, President Trump’s longtime political adviser Roger Stone and then White House senior adviser Steve Bannon.

Asked for comment, a Fox News spokeswoman emailed a statement. “The court’s ruling today permits Mr. and Mrs. Rich to proceed with discovery to determine whether there is a factual basis for their claims against FOX News,” it said. “And while we extend the Rich family our deepest condolences for their loss, we believe that discovery will demonstrate that FOX News did not engage in conduct that will support the Riches’ claims. We will be evaluating our next legal steps.”

Fox News coverage of the Seth Rich murder.

The claims about Rich were the focus of the recent Yahoo News six-episode podcast “Conspiracyland.” Rich, a 27-year-old DNC staffer from Omaha, Neb., was killed early on the morning of July 10, 2016, while walking home to his group house 30 blocks north of the Capitol in what Washington, D.C., police quickly concluded was a botched robbery. His assailants have never been caught, and the police investigation into his death remains open.

But the “Conspiracyland” series revealed that, just three days after his death, Russian intelligence agents had planted a conspiracy theory alleging Rich was gunned down by assassins working for Hillary Clinton.

From there, stories about Rich quickly migrated to various far-right websites and eventually to Fox News, where for an eight-day period in 2017 the network’s biggest names, led by primetime host Sean Hannity, played up the claim that he was the source for WikiLeaks, insisting that it undercut the official conclusion of U.S. government officials that Russian intelligence officials had hacked the DNC and then provided the emails through “cut-outs,” or intermediaries, to WikiLeaks.

In fact, no evidence ever surfaced of any connection between Rich and WikiLeaks, and in the “Conspiracyland” podcast, Deborah Sines, the former assistant U.S. attorney in charge of the investigation into Rich’s death, said on tape that the Fox News story was a “complete fabrication.”

Writing for a unanimous three-member panel, U.S. Judge Guido Calabresi flatly labeled the Fox News story a “false” and “unsubstantiated” account that was contradicted by “official U.S. intelligence reports” and was retracted by the network eight days after it was published.

But Calabresi noted that, even after it was retracted, Fox News guests continued to reference the article for months, while the network continued to make two videos available online that referred to its contents.

In stinging language, Calabresi wrote that the allegations brought by the Riches in their lawsuit against Fox News and two co-defendants, Zimmerman and Dallas moneyman Ed Butowsky, who was integrally involved in the preparation of the story, met the standard of “outrageous conduct” that should allow the Riches’ lawsuit to go forward.

Malia Zimmerman and Ed Butowsky (Photos: Fox News, Facebook)

“We have no trouble concluding that — taking their allegations as true — the Riches plausibly alleged what amounted to a campaign of emotional torture,” the judge wrote.

The case is one of several relating to Rich that are now winding their way through federal courts. Aaron Rich, Seth Rich’s brother, has a separate lawsuit for defamation against Butowsky and Matt Couch, an Arkansas internet entrepreneur, alleging that they falsely accused him of covering up details relating to his brother’s death. Also, Butowsky has filed lawsuits against Aaron Rich’s lawyers and National Public Radio, alleging they had defamed him.

The Riches had initially sued Fox News, Zimmerman and Butowsky for intentional affliction of emotional distress, alleging that the retracted story — filled with false claims about their deceased son — had caused them pain and anguish.

“You’re used, you’re lied to, you’re a pawn in your own son’s death,” said Mary Rich in an emotional interview for the “Conspiracyland” podcast. “I wish they had the chance to experience the hell we have gone through. Because this is worse than losing my son the first time. This is like losing him all over again.”

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