In defamation case, Milwaukee judge says FOX News program not “news”

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FOX News personality Megyn Kelly and a guest discuss the limitations of free speech during a recent segment. (Photo: FOX News Channel)

FOX News personality Megyn Kelly and a guest discuss the limitations of free speech during a recent segment. (Photo: FOX News Channel)

A Wisconsin judge overseeing a defamation case brought by a former firefighter against the FOX News Channel has determined that a show hosted by news personality Megyn Kelly does not qualify as a journalism program.

The case was brought by retired Milwaukee firefighter Aaron Marjala who was placed on disability after an injury during his time with the North Shore Fire Department. That injury, a fracture to the ulnar nerve in his elbow (commonly referred to as the “funny bone”), was found by a state medical board and independent physicians to constitute a disability after two surgeries left the retired firefighter in persistent pain.

The labeling of his injury as a disability entitled Marjala to collect state benefits. Despite the collection of benefits, Marjala continued to enjoy an active lifestyle, including running in several marathons, according to the Milwaukee Journal-Sentinel newspaper.

Four years ago, Milwaukee FOX affiliate WITI-TV (Channel 6) ran a story on Marjala questioning the conclusion of doctors who examined the retire firefighter. A few days after the report aired, FOX News ran the story, with Kelly and another commentator questioning whether Marjala should be entitled to state benefits.

“The ironman too injured to fight fires,” Kelly began in her introduction to the story. “Aaron Jarhala was one of Wisconsin’s bravest until he banged his funny bone on a kitchen counter at a Milwaukee firehouse — oh, the horror.”

Marjala sued Kelly, FOX News and the local FOX station claiming their portrayal of his injury would lead viewers to falsely believe that, despite the findings of physicians and a state medical board, he had not been injured at all.

But a judge tossed out the lawsuit last week saying viewers of FOX News could easily recognize that Kelly’s program was not a hard news show, but rather an opinion program that afforded the personality and her guests more leeway for criticism and critique.

“The viewers could independently judge whether the defendant’s opinions and comments were reasonable and make up their own mind about the duty disability system and Mr. Marjala’s receipt of the benefits,” Milwaukee Civil Court Judge Jeffrey Conen wrote in his ruling.

Attorneys representing the retired firefighter criticized the ruling as “a victory for dishonest speech,” while lawyers representing FOX said their clients were protected by the First Amendment, which grants the press the ability to “freely criticize the government for doling out disability benefits to able-bodied athletes,” the lawyers said.

It is unclear whether Marjala’s attorneys will appeal the verdict.