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Opinion: Capitol riot defendant's 'Foxitis' defense may do some good

Jennifer RodgersJennifer Rodgers
A defendant in the January 6 insurrection, Anthony Antonio, made headlines recently when his lawyer claimed that Antonio’s significant consumption of the Fox News Channel was responsible for his participation in the siege on the Capitol, resulting in five federal criminal charges against him.
The lawyer called it “Foxitis” and “Foxmania,” suggesting that Antonio’s steady diet of Fox misinformation in the weeks after the 2020 election convinced him that the election was stolen.
When Antonio recently spoke to CNN’s Chris Cuomo about his case, he confirmed that as a result of what he was watching on TV at the time, he believed falsely that the election had been stolen from President Donald Trump.
Some fun can be had with Antonio’s potential Foxitis defense, including comparisons to the so-called “Twinkie” defense that became famous after the 1979 trial of Dan White for the murders of Harvey Milk and George Moscone. White claimed he suffered from diminished mental capacity due to a high intake of sugary junk food. But putting aside the seeming silliness of such a claim, it raises some obvious questions: is there anything to the Foxitis defense, and what might it mean in the larger scheme of things?
As a legal matter, a “Fox News made me do it” defense to the crimes with which Antonio is charged is a non-starter. In the federal system where Antonio is charged (he has not yet entered a plea), a defense that one is not responsible due to mental health-type issues is very difficult to establish. The burden is on the defendant, who must show by clear and convincing evidence that he suffered from a severe mental disease or defect that rendered him unable to appreciate the nature and quality, or the wrongfulness, of his actions.
This is a very high bar, even for defendants diagnosed with a well-recognized mental infirmity. Being gullible enough to believe some hosts he saw on television is certainly not going to cut it. And unlike in many states, federal law contains no “diminished capacity” defense that would be relevant in Antonio’s case.
But while the Foxitis claim is not a valid legal defense, it might operate in a different way to help Antonio’s cause, as an expression of remorse.
In addition to describing Fox News’s impact on him in the weeks leading up to January 6, Antonio also has made clear in his public statements that he realized immediately after the events at the Capitol that he had been misled by Trump and his supporters in the media. He said that the insurrection never should have happened, that he should not have been there, and that no one should attack law enforcement officers or our government.
Antonio described witnessing the assault on DC Police Officer Michael Fanone, stating that Fanone pleaded with Antonio to help him and Antonio will never be able to forget the look in Fanone’s eyes as he was being attacked.
Judges often — though not always — credit defendants at sentencing for heartfelt demonstrations of remorse. And it’s at least possible that an early demonstration of remorse and a willingness to take responsibility for his actions could influence prosecutors to give Antonio a more favorable plea offer than they might otherwise.
But putting aside the potential impact on Antonio’s criminal case, there may be a fringe benefit to the Foxitis argument for our society at large.
Antonio is far from the first insurrection defendant to claim that he went to the Capitol because he believed Trump wanted him there to “stop the steal.” But Antonio’s public about-face about the Big Lie that the election was stolen and his explicit acknowledgment of the role that Fox News played in his radicalization is something new.
The public calling out of Fox News for setting the groundwork for and then supporting and perpetuating the Big Lie that led to the January 6 insurrection from someone who bought that nonsense hook, line and sinker could be a powerful thing.
For the same reason that former cult members can be the most persuasive advocates in convincing others to abandon those beliefs, it may be that participants in the insurrection who, like Antonio, now see that the Trump election claims amplified by Fox and others are false, are well positioned to convince the large percentage of Republicans who still believe that the election was stolen.
I don’t know whether anything will get through to those who still buy the Big Lie, but if in the course of resolving these hundreds of criminal cases stemming from the events of January 6, those who no longer believe speak out about it, it certainly can’t hurt.
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