President Joe Biden’s son, Hunter Biden, has sued Fox Corporation and its editorial subsidiary Fox News Media over a fictitious television series that used real-life explicit photos without his permission.
The series, “The Trial of Hunter Biden,” debuted on Fox News Media’s streaming service Fox Nation two years ago. While the premise of the miniseries was fictional, it included actual photos of Biden engaging in sexual acts, images that were discovered on a laptop that was abandoned with a computer repair shop in Delaware.
It wasn’t clear how Fox News Media obtained the photos, through the New York Post published some materials discovered on the laptop in 2020. The New York Post is owned by News Corp, which shares common ownership with Fox Corporation; the two are operated as separate businesses.
In promotional material associated with the TV series, Fox Nation said the show offered a glimpse into “how a possible Hunter Biden trial might look like.” At the time, Biden was the focus of several controversies flouted by conservative political leaders and pundits, including allegations that he used his father’s political stature to advance his own business dealings in China, Ukraine and elsewhere.
The series in question followed a criminal indictment issued by the U.S. Department of Justice alleging tax fraud and money laundering concerning his business transactions in China. As part of their investigation, federal authorities seized the laptop that was left behind at the computer repair shop — the one that included intimate photos of Biden engaging in several trysts.
The investigation ultimately culminated in two separate legal cases against Biden: One brought in California on federal tax charges, and a second brought in Delaware that alleged Biden had possessed a firearm while addicted to illegal drugs. Biden was convicted on the gun charges in June.
Two months before the conviction, attorneys representing Biden sent a legal demand to Fox News Media that claimed the documentary included intimate images without Biden’s permission. The letter threatened a lawsuit under a New York state law that prohibits the dissemination of nude or sexually-explicit photos of a person without their explicit permission. Fox News Media complied with the request, with a spokesperson telling NPR that the decision to remove the series from Fox Nation was “out of an abundance of caution” while the broadcaster reviewed “the concerns that have just been raised” in the letter.
On Monday, Biden moved forward with his lawsuit, accusing Fox and at least 100 unnamed defendants of conspiring to “harass, annoy, alarm and humiliate him, and tarnish his reputation.”
Biden acknowledged that the series opened with a statement from former television judge Joseph Brown (“Judge Joe Brown”), in which he affirmed that the show presented “a mock trial” and made it clear that “Hunter Biden has not been implicated in or charged in any crimes arising from his activities, alleged activities.”
In a television interview on Fox News in October 2022, Brown said the series was intended to “determine if there was probable cause to believe that further investigation” into Biden’s alleged business dealings “should occur,” with the laptop providing critical evidence that needed to be examined.
“Some of the things that are on that laptop are really disturbing,” Brown said. “So, it looks like the public needs to encourage its system to get into this. We don’t want mob justice, but sometimes the collective needs to bring pressure to at least look at things because from what we were looking at on that laptop, something’s way wrong here. Way wrong.”
Biden said something else was “way wrong:” The inclusion of explicit images from the laptop, which had no apparent nexus to the criminal allegations levied in the miniseries. He also alleged that the series did not make enough of a concerted effort to inform Fox Nation streamers that it was fictitious, and that the use of real-life columnists and legal experts, along with material from the laptop, blurred the lines between real and imaginary.
“While using certain true information, the series intentionally manipulates the facts, distorts the truth, narrates happenings out of context, and invents dialogue intended to entertain,” the lawsuit reads. “Thus, the viewer of the series cannot decipher what is fact and what is fiction, which is highly damaging to Mr. Biden.”
A spokesperson for Fox News Media told the New York Times that the organization believes the lawsuit was without merit.
“This entirely politically motivated lawsuit is devoid of merit,” the spokesperson said, reaffirming the network’s position that the miniseries was removed from Fox Nation out of caution and pointing out that the program was available for nearly two years before Biden’s lawyers sent their letter in April.
“Hunter Biden is a public figure who has been the subject of multiple investigations and is now a convicted felon,” the spokesperson continued. “Consistent with the First Amendment, Fox News has accurately covered the newsworthy events of Mr. Biden’s own making, and we look forward to vindicating our rights in court.”
That could be a complicated endeavor. The 2019 revenge porn law that serves as the cornerstone of Biden’s lawsuit unambiguously criminalizes the distribution of images that show “an unclothed or exposed intimate part” of a person or a “person engaging in sexual content” without their permission. It allows individuals to bring civil claims for actual and punitive damages, as Biden has done, and offers no fair use or other exemptions to broadcasters or news organizations that distribute those images as part of their news reporting activities.
Further complicating matters is that Fox Nation is not a news platform — while the streaming service is operated through Fox News Media, it includes non-news programming like stand-up specials from Rob Schneider and Roseanne Barr; faith-based series like “Easter from Rome” and “The Spider who Saved Christmas” and feature-length films like “Christmas in the Rockies” and “Shot in the Dark.”
“We definitely know what the space looks like for Fox Nation: it looks a lot like what the Fox News audience watches when they’re not watching Fox News,” Jason Klarman, the Chief Digital and Marketing Officer at Fox News Media, told this reporter in late 2022. (At the time, Klarman was the President of Fox Nation.)
To that end, Fox News operates more in the realm of an entertainment service like Netflix or Prime Video, marketed toward Fox News’ core audience of right-of-center viewers. To date, the service has around 2 million subscribers, according to a Fox News Media executive.
“Curation is at the heart of this,” Klarman continued. “It’s about serving an audience that wants us to give them the content that they otherwise might go somewhere else — everything from real estate shows to cooking shows.”
The decision to offer non-news programming through Fox Nation may have helped the streaming service scale its operation, but it also adds a wrinkle to any defense Fox Corporation may lob on editorial grounds. But some of Biden’s complaints are also problematic, in that they conflate the possible spread of his intimate photos that Fox used for the documentary.
In his complaint, Biden noted that several third parties sold access to Fox Nation through their platforms, including Apple TV, DirecTV, the Roku Channel and YouTube TV. The pleading notes that Roku has “around 81.6 million active accounts worldwide,” while YouTube TV has more than 8 million subscribers and Apple TV has around 25 million paying customers.
The figures were used to suggest that “the reach of the intimate images in ‘The Trial of Hunter Biden’ was extensive,” but the presumption appears to be based on erroneous beliefs about how Fox Nation is sold and distributed. The 2 million subscriber figure includes purchases made through Fox News Media directly as well as third party platforms, according to a person familiar with the matter, and there is no clear indication from the lawsuit that Apple, Roku, DirecTV or YouTube offered the program to stream without a Fox Nation subscription. Fox Nation is also only available in the United States.
The actual number of people who viewed the program is probably in the thousands, not the millions, as Biden himself suggests later in the legal complaint. To that end, he notes that a promotional trailer posted on the Fox Nation Facebook page — which clearly explained that the series was “a mock trial for the American people” — grabbed around 3,400 views between October 2022 and this month.
The lawsuit comes more than a year after Fox Corporation settled a defamation complaint brought by Dominion Voting Systems over certain election-related misinformation aired by guests and commentators on some Fox News and Fox Business Network opinion programs. The comments suggested Dominion voting machines used during the 2020 presidential election erroneous switched votes from former President Donald Trump to then-Senator Joe Biden. The allegations were without merit; Dominion says they were false, and that Fox knew this to be the case.
Fox agreed to pay $787.5 million to settle the lawsuit, a move that the network said was intended to avoid expensive and time-consuming litigation. The network was not required to admit fault, but critics of Fox News say the settlement is an affirmation that Fox knew it was wrong to air the conspiracies in the first place, and some opponents have used the Dominion settlement as fodder to launch ancillary attacks against Fox’s business.
