NEW YORK, NY — MARCH 20: The News Corp. building on Sixth Avenue, home to Fox News, the New York Post and the Wall Street Journal, on March 20, 2019, in New York City, New York. Disney acquired Fox today in a $71.3 million deal. (Photo by Kevin Hagen/Getty Images)
Fox News has filed a motion to dismiss a defamation lawsuit brought by a North Texas man who says he was falsely identified as a neo-Nazi mass shooter who killed several people at an outlet mall in May 2023.
In the scathing dismissal bid, the network (abbreviated “FNN” in the filing) says it was improperly brought into the lawsuit and requests sanctions against the plaintiff’s attorneys for allegedly misleading the court about an image “that purportedly shows a FNN story with side-by-side pictures of a dead body” and a photo of the man suing.
Rather, Fox News claims, that image came from a random TikTok user — whose account no longer exists — and points out that the network has never had an account with the popular social media video app.
“The defamation claim against FNN in this case is made up and should never have been brought,” the 24-page motion to dismiss reads. “Plaintiff has sued Defendant FNN over an alleged ‘publication’ of his image by FNN that did not happen and does not exist.”
On May 6, 2023, Mauricio Garcia, 33, opened fire at the Allen Premium Outlets just north of Plano, a crowded outdoor mall with several restaurants and large shops. Eight people were killed — including a Korean American family of four that was reduced to just one child after the shooting — and seven people were injured.
The gunman was a white supremacist who ascribed to right-wing ideology and had Nazi tattoos — including a swastika and the SS logo. During the massacre, he wore a tactical vest embroidered with a RWDS (Right Wing Death Squad) patch — a modern paean to U.S.-supported military and paramilitary groups that murdered thousands of Latin American civilians beginning in the 1970s. The shooter was killed by an Allen Police Department officer at the scene.
A different Mauricio Garcia — a 36-year-old resident of Dallas County — had “nothing to do with” the violence, his lawsuit explains. Despite that, his image was used by several national media organizations in stories and commentaries about the carnage.
As previously reported, the 29-page lawsuit was filed in a Travis County District Court in April, alleging several outlets, including Fox News, “recklessly disregarded basic journalistic safeguards.”
“An article published on the FoxNews.com website used an image of innocent 36-year-old Plaintiff Mauricio Garcia to portray the gunman,” the lawsuit reads. “Fox News failed to exercise reasonable care in verifying the accuracy of the photograph published to depict the mass murderer. Fox News acted with reckless disregard for the truth.”
Notably, the lawsuit does not contain the name of the allegedly offending article, the publication date, or a link to the story that allegedly contained the plaintiff’s photograph. The network points out these discrepancies in their motion to dismiss Garcia’s lawsuit.
In the Fox motion and a related filing, the network says the plaintiff’s attorneys made an even bigger and fundamental mistake.
“Knowing that it had not published Plaintiff’s photograph — in connection with any reporting on the Allen Outlet Mall shooting or otherwise — FNN’s counsel requested that Plaintiff provide FNN with a copy of the alleged ‘article’ referenced in the Petition so FNN could investigate the matter,” one filing reads. “Instead, Plaintiff’s counsel provided FNN’s counsel with a screenshot of a TikTok page for an account named “BigwolfDefense” (which no longer exists) that purportedly shows a FNN story with side-by-side pictures of a dead body and Plaintiff’s image, indicating that the alleged ‘story’ was published at 3:31 p.m. on May 7, 2023. According to Plaintiff’s counsel, the TikTok Screenshot was taken by Plaintiff’s mother.”
Before that, however, Fox News says the source of the image was obfuscated in an edit by way of a letter from Garcia’s lawyers.
The motion says the network was first provided “with a demand letter that included a tightly cropped image that excluded the actual source and gave the appearance it was an image of an FNN article.”
Fox News’ motion contains both what they say is the allegedly offending-but-fake mock-up and the “actual” article in question.
“Interestingly, the side-by-side image that appears in the TikTok Screenshot was placed directly in place of the ‘Fox News Flash Headlines’ video that appeared (and has always appeared) in FNN’s actual May 7, 2023 publication,” the motion to dismiss reads. “The image that appeared in the TikTok Screenshot never appeared in any FNN publication.”
In other words, Fox News says the location on their website where the image of Garcia was purported to be actually contained a standard video that runs in the same place in several stories. Such video placements are common throughout the online news industry.
“Because Plaintiff’s claim is based on a TikTok image that was never published by FNN, the claim against FNN fails and must be dismissed, and FNN is entitled to an award of its attorneys’ fees under the TCPA,” the motion goes on. “And because Plaintiff and his counsel do not have and have never had any factual basis to bring this defamation claim, FNN also request sanctions.”
As for the ultimate source of the image, Fox News attributes the apparent misinformation to a one-term Republican congresswoman:
Upon close inspection, Plaintiff’s Image displays a TikTok watermark from a user other than ‘BigwolfDefense.” That watermark indicates Plaintiff’s Image was taken from a post by the user “mayraflorestx” … The account “mayraflorestx” belongs to the South Texas politician Mayra Flores, who has previously been accused of using third-party photographs to mislead users on social media. Thus, the image on which Plaintiff bases his claim is taken from a Tik Tok within a TikTok — and neither TikTok is an FNN account.
Fox News, in no uncertain terms, said Garcia’s legal team was aware of at least some allegations contained in the motion to dismiss.
“Before Plaintiff served his petition on FNN, FNN told Plaintiff’s counsel that, FNN never published Plaintiff’s image and has no record that it ever maintained any image of Plaintiff on its servers,” the motion reads. “In fact, FNN never published a photo of any kind, much less one of Plaintiff, at the top of the May 7 article where the TikTok screenshot provided by Plaintiff shows a photo.”
Law&Crime reached out to one of Garcia’s attorneys for comment on this story and the allegations in the Fox News motion but no response was immediately forthcoming at time of publication.
In addition to sanctions for his attorneys, the lawsuit aims to keep Garcia from suing Fox News over anything “similar” in the future.
“Given Plaintiff’s pursuit of a meritless claim against a party he knew did not publish anything about him, sanctions are particularly appropriate herein,” the motion concludes. “FNN is entitled to an award of its court costs and reasonable attorney’s fees and requests sanctions to deter Plaintiff from bringing similar actions in the future. Plaintiff knew FNN did not publish his image prior to serving FNN with this lawsuit but continued to pursue this meritless claim (and seek significant publicity surrounding it) despite this knowledge.”
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