It’s not the first lawsuit over Fox News’ pursuit of conspiracy theories in the murder of DNC staffer Seth Rich, but it might end up being the costliest. Rich’s parents filed their lawsuit yesterday, nearly ten months after their Washington affiliate fingered Rich as the Wikileaks source for the DNC’s e-mail hack and claimed that police and the FBI had covered it up. The suit names Fox News, its reporter, and a contributor as respondents as the parents allege that they deliberately cooked the report for both monetary and political profit:

The May 16, 2017, Fox News article, which allegedly contained “false and fabricated facts,” according to the lawsuit, fueled conspiracy theories that Rich was murdered in connection with a massive WikiLeaks data dump of 20,000 DNC emails days after his death.

In the suit, which was obtained by ABC News, Rich’s parents, Joel and Mary Rich, claim that Fox News investigative reporter Malia Zimmerman and Fox News commenter Ed Butowsky reached out to the family under false pretenses to support stories that Seth Rich leaked DNC emails to WikiLeaks.

The lawsuit claims that Fox News, Zimmerman and Butowsky are liable for the harm caused by the report because they “aided and abetted the intentional infliction of emotional distress” caused by the story about Seth Rich and alleges that Fox News provided with a national platform to develop what the lawsuit dubs a “sham story.”

The Rich family claims that the “defendants’ conduct was extreme and outrageous” in what they allege was a deliberate effort to portray Seth Rich as a “criminal and traitor to the United States.”

The lawsuit has one surprise in it, at least from the initial reports, in who didn’t get named as a respondent. The suit alleges that private investigator Rod Wheeler worked with Zimmerman and Butowsky for months to convince Rich’s parents that the murder was a hit related to the DNC hack. They hired Wheeler on the recommendation of Zimmerman and Butowsky, the suit alleges, under false assurances that the parents would control the investigation.

However, Wheeler isn’t being sued by the Riches. Instead, he filed suit against Fox News last August, claiming that the network deliberately cooked quotes attributed to him in order to advance their political theories of the case. That claim might run into a few problems, at least in terms of establishing that Wheeler didn’t participate willingly in the story:

The question of Rich’s death took on greater urgency for Butowsky after Trump fired FBI Director James Comey in early May. Comey had been overseeing the Russia investigation. The story ran just a week later.

Fox’s report went sideways shortly after it was posted online and aired on Fox & Friends. It was denounced by the Rich family, D.C. police, Democratic Party officials and even, privately, by some journalists within the network. Within hours, Wheeler told other news outlets that Fox News had put words in his mouth.

Despite those concerns, Wheeler appeared on the shows of Fox Business host Lou Dobbs and Fox News star Sean Hannity, who devoted significant time to the story that night and in subsequent days. In speaking with Wheeler, Hannity said: “If this is true and Seth Rich gave WikiLeaks the DNC e-mails … this blows the whole Russia collusion narrative completely out of the water.”

A week later, on May 23, Fox retracted the story, saying the reporting process failed to live up to its standards. Hannity said he would take a break from talking about Rich’s death out of respect for the family. And there it has largely stood — until now.

Fox retracted the story but never actually admitted it was fake. They’ve been smart enough to keep quiet ever since. Butowsky, a donor to Trump’s campaign, still says that there’s meat to the story — which the Riches’ attorney will no doubt cite when the time comes:

A spokeswoman for Fox News declined to comment due to pending litigation. Another defendant, Malia Zimmerman, the reporter on the retracted Fox story, could not be immediately reached for comment. Ed Butowsky, a Dallas businessman and a Fox guest who allegedly built the story behind the scenes, was also sued. Asked about evidence for the story’s claims, he said “there’s a lot out there,” but offered no facts.

Will this lawsuit succeed? That’s a good question, as a false story is not necessarily a legal liability. The story smelled from the start, but then again, media outlets can blow stories without incurring civil liability. The Riches will have to prove that Fox and the other respondents had malicious intent and reckless disregard for the truth to win this lawsuit, which claims wrongful mental anguish based on deception and fraud rather than a direct defamation action:

The lawsuit claims that Fox News, Zimmerman and Butowsky are liable for the harm caused by the report because they “aided and abetted the intentional infliction of emotional distress” caused by the story about Seth Rich and alleges that Fox News provided with a national platform to develop what the lawsuit dubs a “sham story.”

The Rich family claims that the “defendants’ conduct was extreme and outrageous” in what they allege was a deliberate effort to portray Seth Rich as a “criminal and traitor to the United States.”

In order to win that argument, they will have to prove that the story was false and that Fox and the other respondents knew it to be so, or simply didn’t care. Technically, it’s difficult to bring defamation claims on behalf of dead people, but this is probably going to work much the same as a defamation suit would. They have an advantage in that their son was not a public figure at his death in the definition that fits other celebrities and politicians. Seth Rich did not seek celebrity or public office, and being a murder victim does not necessarily change that. In fact, the plaintiffs’ attorney will likely argue that Fox fixated on Rich precisely because he was dead and couldn’t answer the charges personally.

Therefore the Riches will likely have a lower threshold for both malice and reckless disregard when this suit goes to court — assuming it ever does. Or will they? The Washington Post’s Callum Borchers hears from analysts who think the suit won’t have much success:

The network has not offered a detailed explanation of how the faulty news report made it online and on the air. But John Goldberg, a professor at Harvard Law School, said he “would expect that most courts would be … reluctant to impose liability on journalists — even highly irresponsible journalists — out of concern to protect freedom of the press.”

Goldberg, Brogan and a third attorney with personal-injury expertise, Michael F. Mahoney, all pointed to the precedent set by a 1988 Supreme Court decision in a case involving the evangelist Jerry Falwell and Hustler magazine. Hustler had published a satirical alcohol advertisement that featured a fictional account of sex between Falwell and his mother in an outhouse.

The ad might have been tasteless, but it was not sufficiently outrageous for Falwell to win.

“Falwell failed to recover in his [intentional infliction of emotional distress] claim against Hustler magazine for speech that, on its surface, appeared far more intentional, extreme and outrageous than that at issue here” in the Rich case, said Mahoney, a personal-injury attorney in Massachusetts and an adjunct professor at Boston College Law School.

That’s not a very applicable precedent. Hustler’s advertisement was deliberate satire and aimed at a very public figure. The Fox News story was reported as factual news — not opinion, at least not in the core story — and aimed at a non-public figure. Even with that, don’t forget that the original jury returned damages for Falwell for intentional infliction of emotional distress, so the trial court did allow the jury to penalize the publication — even if the Supreme Court later overturned the jury award by a unanimous decision. A jury found it “sufficiently outrageous to award Falwell $200,000, an award upheld by the 4th Circuit as well.

The Supreme Court reversed the judgment entirely on the basis of the ad being an opinion or satire and Falwell’s status as a public figure.  And note one particular caveat in Justice William Rehnquist’s opinion, emphases mine:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a “blind application” of the New York Times standard, see Time, Inc. v. Hill, 385 U.S. 374, 390 (1967); it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment.

Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. [n5] The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” 797 F.2d at 1278, and, in accordance with our custom, we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But, for reasons heretofore stated, this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.

In other words, Hustler got off the hook because the ad was clearly a parody *and* because Falwell was a public figure. That doesn’t help Fox at all. Seth Rich was not a public figure, and Fox reported this story as straight news, not parody or opinion, with what turned out to be false statements of fact. Hustler v Falwell is a non-sequitur here, except for the way in which it points out the very tricky position in which Fox may find itself with this lawsuit. Even Sullivan may not suffice if the Riches can prove that Fox deliberately aired false information about Rich or exhibited reckless disregard for the truth, which is the Sullivan definition of “actual malice.”

More likely, Fox News will dig deep into its pockets and cough up a formal and direct apology to the Riches to get out from under this. The plaintiffs will have hours of national television commentary from Fox showing their zeal to use Rich’s murder to paint him as a spy, based on what turned out to be nothing much at all except speculation and conspiracy theories. That’s an embarrassment they’d rather not relive, or at least one would hope. The parents probably would prefer not to relive it, too:

Joel and Mary Rich say that the story has followed them ever since, wreaking irreversible damage on them and their son, whose legacy has become entangled in a conspiracy theory that Fox elevated “from the fringe to the front pages and screens of the mainstream media,” the lawsuit says. The couple is seeking unspecified damages for emotional distress.

“No parent should ever have to live through what we have been forced to endure,” Joel and Mary Rich said in a statement released through their media representative. “The pain and anguish that comes from seeing your murdered son’s life and legacy treated as a mere political football is beyond comprehension.”

The right thing to do is admit guilt, pay up, and spike this conspiracy theory once and for all. Perhaps then police can get back to focusing on who really did kill Rich and give his parents some measure of peace and closure, rather than the national nightmare to which they’ve been unjustly subjected.