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 been let off the hook in a lawsuit filed by a North Texas man who was falsely identified as the neo-Nazi mass shooter who killed several people at a suburban outlet mall in May 2023.
The plaintiff and his attorneys wrongfully identified the cable news network in an April lawsuit that accused numerous media outlets and influencers of recklessly disregarding “basic journalistic safeguards” by publishing “the photo of an innocent man” and “branding him as a neo-Nazi murderer to his local community and the nation at large.”
Now, in an almost no-harm, almost no-foul situation, the lead attorney in the lawsuit has issued a thoroughgoing mea culpa — and Fox News, in turn, will not be asking a judge in Austin, Texas, to punish him.
“I acknowledge the lawsuit should never have been filed against Fox News, and we are compensating Fox News for its trouble in defending against this claim,” Mark Bankston said in a statement provided to Law&Crime. “In turn, Fox News is foregoing pursuing sanctions. Contrary to my prior public statements, Fox News did not ignore basic journalistic precautions and did have proper institutional guardrails in place with respect to its coverage of the Allen, TX shooting.”
The violence
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.
The lawsuit
The 29-page lawsuit was filed in a Travis County District Court over various kinds of articles about the outlet mall shooting.
“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 read. “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.”
The lawsuit alleges defamation per se, reputational harm, and mental anguish and seeks over $1 million in various damages plus prejudgment interest, post-judgment interest, and costs of court.
More Law&Crime coverage: ‘Recklessly disregarded basic journalistic safeguards’: Man sues Fox News and several conservative media outlets after he was falsely identified as a neo-Nazi mass shooter
In the lawsuit, the underlying controversy is framed as an exemplary indictment of the U.S. media landscape writ large.
“This case implicates the ever-deepening dysfunction in American media,” the lawsuit reads. “As a cost-cutting measure, many of our legacy media organizations have dismantled the institutional guardrails previously in place to prevent the publication of false information. At the same time, a growing number of hyper-politicized alternative media organizations are managing to attract significant audiences using a low-cost business model that has no interest in institutional guardrails to begin with. The result is a media structure that is failing from top to bottom.”
The motion to dismiss
In May, Fox News came up with a more compelling argument: they never used the innocent Garcia’s image at all.
In their scathing dismissal bid, the network (abbreviated “FNN” in the filing) says it was improperly brought into the lawsuit regarding an image “that purportedly shows a FNN story with side-by-side pictures of a dead body” and a photo of the man suing.
Fox News explained that the image came from a random TikTok user whose account no longer exists. The network also pointed out they have 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.”
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.
More Law&Crime coverage: ‘This case is made up and should never have been brought’: Fox News files blistering motion to dismiss lawsuit brought by man falsely identified as a neo-Nazi mass shooter
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.”
The mea culpa
On June 20, Bankston penned a brief X (formerly Twitter) thread explaining the decision for the agreement with the network.
“Today, in the defamation suit against eight media outlets regarding the Allen shooting, we are dismissing Fox News. Let me explain why,” the thread begins.
The genesis of the fake Fox News image is explained in a post that was subsequently deleted: “Although we were provided an image of a Fox News article with our client’s photo which was posted by a former U.S. House member, and although another media outlet testified that they relied on Fox, Fox has shown us to our satisfaction this is simply not true.”
This exegesis lines up with Fox News’ motion to dismiss:
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.
“We have no desire to pursue a claim without basis in fact, in which Fox was a victim of a fabrication,” Bankston continues. “I’ve decided to pay for the time spent by the attorneys in Texas because it’s the right thing to do. Lawyers shouldn’t have to work when they don’t need to. And I thank Fox’s attorney in Texas for helping us figure out what happened here.”
Law&Crime reached out to Bankston to ask why the details of the explanation were excised from his public apology.
As of now, the lawsuit still contains several high-profile defendants, including Newsmax, Univision, and Stephen Crowder.
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