If a television network could cry crocodile tears, that would be Fox News wailing that the $1.6 billion defamation lawsuit it faces for spreading lies about the 2020 presidential election is an attempt to “trample on free speech and freedom of the press.” Fox is being sued by Dominion Voting Systems for airing false allegations that the company’s machines were linked to widespread election fraud; another suit, by the electronic voting company Smartmatic, is close on its heels. So you can see why network honchos would be clinging to First Amendment protections. A generous interpretation of the nation’s laws regarding libel — the written or broadcast form of defamation — is the only thing that can save Fox news from itself now.
A trial in the Dominion case is slated for next month in Delaware, and I hope the parties resist the temptation to settle out of court. Fox should be brought to justice, not just because the network’s outrageous behavior is a blot on all responsible journalism but because a finding against the media giant would, paradoxically, vindicate Times v. Sullivan, the bedrock First Amendment case that has protected the press from frivolous libel claims for nearly 60 years.
To review: The 1964 Times v. Sullivan case establishes the circumstances under which the media can be held responsible for libel of a public figure (or in this case, a public company). These include deliberately and knowingly reporting damaging falsehoods with a “reckless disregard for the truth.”
Antagonists of a robust free press have had Times v. Sullivan in their crosshairs for years, saying the protections it offers are too sweeping. In 2019 Supreme Court Justice Clarence Thomas issued a broadside against the decision, saying it sets an “impossible standard” for aggrieved plaintiffs to meet. Justice Neil Gorsuch also has opined that it “has evolved into an ironclad subsidy for the publication of falsehoods.”
But recently unsealed court filings suggest Fox News practiced “reckless disregard” with abandon in the weeks after the 2020 election. The trove of documents show that Fox officials, from chairman Rupert Murdoch on down, knew that the election fraud claims pushed by allies of former president Donald Trump were false but broadcast them anyway. On-air celebrities privately derided the claims and their sources — Rudy Giuliani, Sidney Powell, and other conspiracy mongers — as “nonsense” and “mind-blowingly nuts” while giving them ample airtime. The programming continued even as the theories were debunked by fact-checkers. Fox reporters in the news division who held on to a shred of ethics were scolded for casting doubt on the Big Lie.
Fox defends its broadcasts as merely relaying what newsworthy individuals were saying about the election, even if the statements were outlandish. And some Fox hosts did express skepticism about the fraud claims on the air. But the documents show that Fox executives were reeling from the backlash among their viewers for having called Arizona (correctly) for Joe Biden on election night. The actions Fox News took to placate Trump allies and stop the hemorrhaging of viewers to competing networks are just the sorts of behaviors Times v. Sullivan identifies as not defensible.
“The argument has been that New York Times v. Sullivan has gone too far and the ‘liberal’ press has no limits,” Harvard’s constitutional law professor Laurence Tribe said in an interview. If Fox loses the defamation case, he said, “it would demonstrate the utter falsity of the narrative that Times v. Sullivan is an unfettered license to spread libelous lies.” A finding against Fox, in other words, would prove the system works and Times v. Sullivan need not be weakened or overturned.
It may be too much to hope for, but a loss for Fox also could be a warning to other media outlets about the risks of circulating disinformation, possibly tamping down the contagion of lies and conspiracy theories that have so poisoned the public discourse in this country.
In a 2016 campaign speech in Texas, then-candidate Donald Trump pledged to gut constitutional protections for the news media.
“We’re going to open up the libel laws,” he said to cheers, “so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money.” The irony is rich because in this case it is Trump and his allies at Fox News who are charged with saying “negative and horrible and false” things about Dominion. And recovering lots of money may not require changing the libel laws at all.
Renée Loth’s column appears regularly in the Globe.