Jane E. Kirtley is a Professor of Media Ethics and Law at the University of Minnesota.
It’s all over but the spinning.
At the eleventh hour, after the jury was sworn in and the lawyers were ready to make their opening statements, the judge presiding over Dominion Voting Systems v. Fox News announced on April 18, 2023, that the “ parties have resolved the case.”
Little is known about the reported US$787.5 million settlement, one of the largest known defamation awards in the country’s history. Fox issued a vaguely worded statement confirming the merits of Dominion’s defamation claims – “We acknowledge the Court’s rulings finding certain claims about Dominion to be false” – but was not required to make on-air apologies or corrections. With that, the lawsuit that captured public attention for two years ended.
Dominion’s claims that Fox and its on-air pundits had damaged the voting equipment company’s reputation by falsely questioning the integrity of its operations during the 2020 elections were the same essential claims that any libel plaintiff must make for a case to proceed to trial. The issue is not truth, alone, but whether false statements harmed the plaintiff’s reputation, and whether the news organization was at fault for publishing those statements.
Presiding Judge Eric Davis had already ruled that the many accusations Fox hosts and guests hurled at Dominion after the 2020 election – most notably that it switched votes from former President Donald Trump to challenger Joe Biden – were false as a matter of law. It was “CRYSTAL clear,” he wrote. All that remained for a jury to decide was whether the statements were made with actual malice.
Actual malice is the legal standard established by the Supreme Court in 1964 in New York Times v. Sullivan that applies to public officials and public figures. In most cases, corporations like Dominion that offer goods or services for sale are also considered public figures, as the Supreme Court held in 1984 in Bose Corp. v. Consumers Union.
In these cases, corporations must prove that the statements about their businesses were published with knowledge that they are false, or with reckless disregard for whether they were true or not. The high court’s rationale in New York Times v. Sullivan, which involved a police commissioner in Alabama who was unhappy with media coverage of the Civil Rights Movement, was that powerful individuals should not be able to file frivolous suits aimed at silencing the press in order to vindicate their reputations.
As a scholar of media ethics and law, I have followed Dominion’s defamation suit against Fox News closely, because it presented a direct threat to the Sullivan standard, which for nearly 60 years has protected journalists and authors from lawsuits brought by U.S. politicians, sheriffs, international arms dealers, political operatives and many others who would seek to punish and curtail robust reporting about them and their activities.
The facts were on Dominion’s side
Dominion had a tremendous advantage on the eve of trial. Pretrial discovery revealed a trail of texts and email messages that documented the doubts of executives, editors and pundits at Fox about the veracity of the claims of a conspiracy to steal the 2020 elections, of which Dominion was supposedly an integral part.
They showed that, although Fox fact-checkers operating in the network’s own “ brain room” had debunked many of these claims as early as Nov. 20, 2020, Fox hosts continued to invite guests like Trump attorneys Sidney Powell and Rudy Giuliani, who clung to their theory of a vast conspiracy to steal the presidency from Trump. And it appeared that the motivation for these decisions was to try to hold on to viewers who, once they heard Fox call the state of Arizona for Biden, temporarily decamped to other conservative news outlets like OANN and Newsmax that reinforced their preferred narrative rather than challenge it.
So things didn’t look good for Fox, and that was before the parade of high-profile witnesses, ranging from Fox Corp. Chairman Rupert Murdoch to hosts like Maria Bartiromo, Tucker Carlson and Sean Hannity, were expected to be required to take the witness stand and submit to cross-examination. Dominion’s lawyers, no doubt, were about to evoke the legendary Watergate hearings question – “What did [the president] know and when did he know it?” And Fox’s institutional integrity would be on the line, as well as that of its pundits.
After the settlement was made public, Dominion claimed vindication of its reputation, declaring that “truth matters,” and that “ for our democracy to endure another 250 years … we must share a commitment to facts.”
Fox, for its part, grudgingly conceded that it had to “ acknowledge the Court’s rulings finding certain claims about Dominion to be false,” but added that the settlement was really a victory of sorts, because it “reflects Fox’s continued commitment to the highest journalistic standards.”
I can hear the gales of cynical laughter from many who think Fox has no journalistic standards whatsoever. Those critics must be dismayed that Fox and its employees will not be raked over the coals and otherwise humiliated in the court of public opinion, as well as in the courtroom.
Disinformation was at the heart of the case
But those who are disappointed may have been seeking more from this case than a libel suit can deliver. For many, it had become a surrogate for their unhappiness – or even incandescent rage – directed toward Fox for its editorial positions. It was a referendum not only on Fox’s coverage of Dominion, but also on its long-established pattern of favoring one political viewpoint over all others, even at the expense of telling the truth. In other words, it was about disinformation and the people who are persuaded by it.
Many people would like to ban disinformation. But who decides what is disinformation? Under U.S. law, we don’t ask government tribunals to decide “the truth.” I have written about how experiences in other countries show that it is dangerous to ask courts, or any instrumentality of government, to do so.
If that sounds improbable, recall that it wasn’t that long ago that Donald Trump, while still a candidate, was calling news media like CNN and The New York Times “ fake news.” He wanted to “ open up the libel laws ” and threatened to shut these outlets down. If the government decides which media sources are “real” or “fake,” a free press – and freedom of expression as we have known it – will cease to exist. As the late Supreme Court Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion.” That means that the law tolerates errors in journalism – which are inevitable – as part of the search for truth.
I hold no brief for Fox. But had the Dominion case gone to the jury, the inevitable appeal by whomever lost would give the Supreme Court the chance to reconsider and possibly eliminate the New York Times v. Sullivan standard that protects all news media of all political stripes. At least two justices, Clarence Thomas and Neil Gorsuch, have indicated they are eager to do just that, even though it has been the constitutional standard for nearly 60 years. Given this court’s willingness to overturn precedent, as it did with abortion rights, there is no guarantee that another three justices might not join them.
In the end, this lawsuit was about two questions: Did Fox knowingly publish false statements about Dominion that harmed the company’s reputation, and did it do so knowing, or having reason to know, that they were false? It has already vindicated Dominion and exposed Fox’s questionable practices to the public. Anything more will have to wait for another day, which may come sooner than we think. Smartmatic, which builds electronic voting systems, has a pending libel suit against Fox and is poised to continue the battle.
This article originally appeared in The Conversation.
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