First Amendment experts say Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News could have a major impact on the public's trust in the media and the future of defamation law.
The voting technology company sued the right-wing network for repeatedly airing debunked TrumpWorld post-election conspiracy theories suggesting Dominion changed or deleted votes to help President Joe Biden get elected.
The judge has already ruled that Dominion has established that Fox's "allegedly defamatory statements" are "clearly false," said Catherine Ross, a constitutional law professor at George Washington University who specializes in First Amendment issues.
"The next thing that Dominion needs to show is that the statements were made with 'actual malice', which is the standard under New York Times v. Sullivan – the leading defamation Supreme Court case and the last case to be this important up until now," Ross said.
What distinguishes "the Dominion case is that Fox's own internal documents seemed to suggest that they knew that what they were reporting was not accurate."
That means that Dominion will either have to prove that Fox knowingly made false claims about the company or show that the network proceeded with "reckless disregard" and continued sharing information whether it was false or not.
"But we have seen really substantial evidence that [Fox], at a minimum, had reason to suspect or to know that these statements were false," Ross said.
Private text messages and emails released in the case revealed that on-air personalities, producers and executives did not believe the election lies former President Donald Trump promoted and even criticized some of his conspiracy theories about the 2020 election being stolen internally.
But, on air, Fox News personalities like Maria Bartiromo, Tucker Carlson, Lou Dobbs, Jeanine Pirro and Sean Hannity continued to air falsehoods pushed by the former president's allies.
"One of the shocking things revealed by the discovery, in this case, is that the Fox higher-ups and the individual shows didn't really want to hear from the fact-checkers," Ross said. "There are fact-checkers at Fox but nobody wanted to hear what they were saying."
Fox Corp. Chairman Rupert Murdoch even acknowledged that some of the hosts crossed a line.
"Maybe Sean and Laura went too far," Murdoch wrote in an email to Fox News CEO Suzanne Scott, referring to the primetime hosts pushing out election denialism after Trump's loss.
Dominion's lawsuit says that Fox received more than 3,600 emails that debunked their statements and explained how they were false. Despite this correspondence, Fox "refused to retract any of its false and defamatory statements about Dominion," the voting company said.
Guests like former Trump lawyers Sidney Powell and Rudy Giuliani and MyPillow founder Mike Lindell appeared on Fox to push conspiracy theories about the election without any evidence.
It'll be "quite embarrassing" for some of the Fox hosts to be confronted on the witness stand with what they promoted compared with what they actually believed, said John Kaley, former assistant U.S. attorney in the Southern District of New York.
"What I will be looking at is the examination of some of the Fox hosts by Dominion's lawyers, and I'll be curious to see how they attempt to explain the juxtaposition between what they were saying in private and what they were broadcasting publicly," Kaley said.
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It is difficult to prove libel due to the high legal bar set by New York Times v. Sullivan, the 1964 Supreme Court decision that is considered critical to the First Amendment. During the civil rights movement, Southern officials were suing newspapers like the New York Times over minor errors in their coverage, Lyrissa Lidsky, a constitutional law professor at the University of Florida, told Salon.
"The Supreme Court, at the time, recognized that defamation law could be used as a tool to silence the press in covering newsworthy stories at a pivotal moment in American history, just because they got a few details wrong, and so the Supreme Court developed a rule as a result," she said.
The rule established a standard where negligently getting details wrong was not going to result in liability, allowing journalists to have "breathing space" if they made occasional errors, Lidsky said. In order to have liability when you're reporting about public officials or public figures on matters of great public concern, attorneys have to show that a defendant had "actual malice."
Having a high standard to meet defamation is important for freedom of the press in a democratic society, Kaley said. "But what distinguishes, perhaps, the Dominion case is that Fox's own internal documents seemed to suggest that they knew that what they were reporting was not accurate."
Davis last week imposed sanctions on Fox after Dominion accused the company's lawyers of withholding information in the discovery process, which Fox denied.
Abby Grossberg, a former Fox producer who is suing the network, recently claimed that the network has audio recordings of Giuliani and Powell admitting they had no evidence to support their Dominion election fraud lies. The recordings hadn't been turned over to Dominion's lawyers until a week ago, according to The New York Times.
Dominion also accused Fox of failing to disclose the scope of Murdoch's officer role at Fox News. Since Dominion filed its suit in 2021, Fox had argued that Murdoch and Fox Corporation should be excluded from the case because Murdoch and other senior executives had nothing to do with running Fox News, but the network recently disclosed to Dominion that Murdoch was a corporate officer at the network, The Times reported.
"The judge likely would be entitled to give an instruction to the jury that Fox's late production of these materials is a fact they could consider in determining liability," Kaley said.
Whether Murdoch made decisions as a corporate officer of Fox News or not is a key detail in Dominion's case. The voting technology company has tried to show that Rupert and Lachlan Murdoch, the chief executive of Fox Corporation, were involved in making decisions about what Fox broadcast as part of its coverage of the 2020 election.
"Dominion is trying to establish that there was a knowledge of falsity at the highest levels of editorial control of the programming," Lidsky said. "It's a very complex trial, [which will look at] what did each individual know about the truth of what they were putting out there? And when did they know it relative to their programming decisions?"
Fox so far has denied any wrongdoing, arguing that they were reporting on notable allegations protected by the First Amendment.
"Dominion's lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights," a Fox News spokesperson said in a statement. "While Dominion has pushed irrelevant and misleading information to generate headlines, FOX News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession."
As the trial moves forward, Lidksy said she is worried about how the case will impact the public's trust in the media since it is "already really low." But beyond that, she added, there have been a lot of powerful and prominent voices calling for reform of defamation law to make it easier to sue the press. This case may lend support to those voices and further weaken protections offered to the press under the current law.
Supreme Court Justice Clarence Thomas and Florida Gov. Ron DeSantis are among the leading proponents who have argued that the 1964 Sullivan decision granted too much leeway to news outlets.
"Defamation law has unfortunately been weaponized to try to intimidate and beat up particularly less well-funded news organizations and some have, in fact, been put out of business by these kinds of lawsuits and that is done by people all over the political spectrum," Ross said. "The former president is famous for bringing meritless defamation lawsuits and he has a very deep pocket."
Fox News is also facing a second defamation lawsuit from voting technology company Smartmatic, which is demanding $2.7 billion, over the network's coverage of TrumpWorld's false claims about the 2020 election.
The list of potential witnesses who may be called to testify in Dominion's trial includes many Fox stars like Carlson, Bartiromo, Hannity, Pirro and Bret Baier, as well as former host Lou Dobbs. The network also told Davis in a letter that it would make Suzanne Scott, Fox News CEO, available.
"I continue to think New York Times v. Sullivan struck the balance pretty well," Lidsky said. "It doesn't protect lies, it doesn't protect reckless falsehoods and we're going to see if that standard is met in this case, even though it is a very high standard."
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