Fox’s defamation defense is no match for the GOP’s primary presidential foe

NEW YORK — Fox News is on an unlikely collision course with two main contenders for the Republican presidential nomination for journalists’ rights.

In defending itself against a massive backlash over its coverage of false claims surrounding the 2020 presidential election, the network is relying on a nearly 60-year-old Supreme Court ruling that makes it difficult to sue media organizations successful from libel.

Former President Donald Trump and Florida Gov. Ron DeSantis, two favorites of many Fox News viewers, for the court to revisit the standard, which is considered the basic case in American defamation law.

“It is ironic that Fox is relying on a landmark case designed to help the news media play a watchdog role in democracy and is under attack by Gov. DeSantis, Donald Trump and others who are not connected in their attacks on journalists. as the enemies of the people,” said Jane Hall, a communications professor at American University.

Fascinating evidence has emerged from court filings in recent weeks that showed a split screen between what Fox was showing its viewers about the false claims of election fraud and what hosts and executives were saying about them behind the scenes. . “Sydney Powell is lying,” Fox News host Tucker Carlson said in a text to a producer, referring to one of the attorneys pushing the claims against Trump.

In an email a few weeks after the 2020 election, Fox Corp. Chairman Rupert Murdoch described a news conference featuring Powell and former New York City Mayor Rudy Giuliani, another attorney who pushed the election: “Really crazy stuff. And prejudice.”

Apart from the revelation about the inner workings of Fox, the result could have wide implications for media organizations because of how they and the courts have come to rely on the libel law that Fox is using as a shield.

In its $1.6 billion lawsuit, voting machine maker Dominion Voting Systems contends that Fox repeatedly aired allegations that the company helped sway the general election against Trump despite many at the news organization privately believing the claims to be false. .

Fox says the law allows it to air such claims if they have merit.

In a 1964 decision in a case involving the New York Times, the US Supreme Court severely limited the ability of public officials to sue for defamation. It ruled that news outlets are protected from a libel judgment unless they are proven to have published with “actual malice” – knowing something was false or acting with “reckless disregard” of whether it was true or not. .

In one example of how the law has been enforced, the editors of The Times admitted last year that an editorial mistakenly linked former Republican presidential nominee Sarah Palin’s rhetoric to a mass shooting in Arizona. Palin lost her libel suit because she could not prove that the newspaper was in error without concern for the truth.

Some free-speech advocates worry that the Dominion-Fox lawsuit could finally give the conservative Supreme Court an opportunity to revisit the standard set in the case, known as New York Times Co. v. Sullivan. Although the case is one of the court’s most enduring precedents, the newly empowered conservative majority has shown a willingness to challenge the law that was considered settled — as it did last year on abortion rights cancel.

Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have publicly expressed interest in giving the precedent another look.

Disapproving of a decision in 2021 not to pursue a libel case, Gorsuch wrote that what began in 1964 as a decision to tolerate occasional errors to allow strong reporting “has grown into an ironclad subsidy to publish lies on in a manner and on a scale previously unimaginable.” He said the modern media landscape is much different today, and suggested he was less careful.

“My wish is that the parties would plead and this case would go away,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota. “I don’t see any good coming out of it.”

The perceived strength of Dominion’s case also worries some supporters of the press.

Dominion says that Fox was, in fact, torn between the truth that Joe Biden legitimately won the race and viewers who wanted to believe Trump’s lies. In depositions released last week, Murdoch argued that Fox as a network did not support the claims, but that some of its commentators – Maria Bartiromo, Lou Dobbs, Jeanine Pirro and Sean Hannity – sometimes did.

Murdoch was among many at Fox who said privately they did not believe the claims made by Trump and his allies that widespread fraud cost him his re-election. In his deposition, Murdoch said he could have banned guests spouting conspiracy from going on air, but didn’t.

“One of the protections is that even false speech about public figures is protected as long as the speaker believes it,” said First Amendment attorney Floyd Abrams. “But no one at Fox seems ready to say that he or she believed the assertions … and there now appears to be substantial evidence that no one at Fox did. It’s a big blow.”

According to court papers, the entire Fox prime-time program privately disparaged Trump lawyer Sidney Powell. Laura Ingraham, in a text to Carlson, called her a “nut.” In deposition, Hannity said he didn’t believe her theories “for one second.” However, Powell was interviewed on Fox 11 times between November 8 and December 10, 2020, according to court papers.

Dominion’s lawyers say Fox is arguing that it has no legal responsibility for airing even the most outrageous allegations, knowing them to be false, as long as they are deemed newsworthy.

Fox said that Dominion is presenting an extreme view of defamation, one in which the network was obliged not to report the allegations but to suppress them or deny them as false.

“Under Dominion’s approach, if the president falsely accused the vice president of plotting to assassinate him, the press would be obligated to report the merits of the allegations as long as someone believed in the newsroom that it was obscene,” Fox’s lawyers said in court papers.

“Such a rule would stop the media in its tracks,” Fox said.

There’s a high bar to prove libel — and that’s intentional, said First Amendment attorney Lee Levine. Dominion must show that a reasonable audience could conclude that these allegations were being made by someone at Fox, not just the interview subjects, he said.

Still, Levine said, Dominion has the strongest defamation case he’s seen in 40 years of being involved in the matter.

George Freeman, executive director of the Media Law Resource Center, said Fox should have cited a little-known “neutral reporting” standard that dates back to a court case from the 1970s. He asserts that news organizations should not be discouraged from reporting something newsworthy even if the truth is seriously in doubt, as long as that information comes from responsible and reputable sources.

But the US Supreme Court has not weighed in on that argument, and several lower courts have rejected it. It is also not clear whether the defense would be legally applicable in Dominion’s case against Fox.

There is a feeling in Republican circles that the Sullivan standard goes too far in protecting news organizations.

Last month DeSantis urged the Supreme Court to revisit libel laws, saying they are used to smear politicians and discourage people from running for office. A bill being considered in the Florida Legislature would significantly lower standards in the state. Trump said last year that the court should consider his own defamation lawsuit against CNN a “perfect vehicle” to return to precedent.

Some media lawyers suggest that the University of Minnesota’s Kirtley spoke to them privately, people who are usually eager to support the press in libel cases, are excited about publicly supporting Fox in the voting machine lawsuit.

Many see the case as a proxy to hold Fox and Trump supporters accountable for what happened after the 2020 election, she said.

“I don’t think a libel suit is the vehicle to deal with this, and you have to think about the damage that could be done to the libel law if Dominion wins,” she said.

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