Fox News is on an unlikely collision course with the two main contenders for the Republican presidential nomination over journalists’ rights.
To defend itself against a massive defamation lawsuit over how it covered up false claims about the 2020 presidential election, the network relied on a nearly 60-year-old Supreme Court ruling that made it difficult to successfully sue media organizations for libel.
Former President Donald Trump and Florida Governor Ron DeSantis, two favorites of many viewers of Fox News, have advocated for the court to revisit the standard, which is considered a basic case in American defamation law.
“It’s ironic that Fox relied on a landmark case designed to help the news media act as a watchdog in a democracy and was attacked by Governor DeSantis, Donald Trump and other figures who are no longer associated with attacks on journalists. as the enemy of the people,” said Jane Hall, professor of communication at American University.
Intriguing evidence has emerged from court filings in recent weeks that show a split screen between what Fox portrays to viewers about false claims of election fraud and what hosts and executives say about them behind the scenes. “Sydney Powell lied,” Fox News host Tucker Carlson said in a text to a producer, referring to one of the attorneys pushing the suit for Trump.
In an email a few weeks after the 2020 election, Fox Corp. Chairman Rupert Murdoch described a press conference featuring Powell and former New York City Mayor Rudy Giuliani, another lawyer who pushed the election to be rigged: “Really crazy. And damaging.”
Aside from the revelations about Fox’s actions, the results could have broad implications for media organizations because of how they and the courts rely on the libel law that Fox uses as a shield.
In a $1.6 billion lawsuit, voting machine maker Dominion Voting Systems argued that Fox repeatedly aired allegations that the company helped rig the general election against Trump even though many at the news organization privately believed the claims were false.
Fox said the law allows for the spread of such claims if it is newsworthy.
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 libel penalties unless they can be proven to have published with “actual malice” — knowing something was wrong or acting with “reckless disregard” of whether it was true or not.
In one example of how this law is applied, the editors at the Times admitted last year that the editor wrongly linked the former vice president of the Republic Sarah Palin’s rhetoric to the Arizona mass shooting. Palin lost the defamation suit because she couldn’t prove the newspaper was wrong without being concerned with the truth.
Some supporters of free speech are worried that the Dominion-Fox lawsuit could ultimately give the conservative Supreme Court the opportunity to revisit the standard set in the case, known as New York Times Co v Sullivan. While the case is one of the court’s most enduring precedents, the newly empowered conservative majority has shown a willingness to challenge what it sees as settled law — as it did last year to repeal abortion rights.
Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have declared the public interest in setting another precedent.
While disagreeing with the 2021 decision not to take libel cases, Gorsuch wrote that what began in 1964 as a decision to tolerate occasional errors to allow robust reporting “has evolved into an ironclad subsidy for the publication of falsehoods by any means and by any means.” anyway. a scale that was previously unimaginable.” He says the modern media landscape is very different today, and advises caution.
“My wish is that the parties will settle and this case will go away,” said Jane Kirtley, director of the University of Minnesota’s Silha Center for the Study of Media Ethics and Law. “I don’t see anything good coming out of it.”
A perceived strength in the case of Dominion also worries some supporters of the press.
Dominion says Fox is, in fact, between the truth that Joe Biden legitimately won the race and appeasing viewers who want to believe Trump’s lies. In the depositions released last week, Murdoch argued that Fox as a network did not approve the claims, but some of its commentators – Maria Bartiromo, Lou Dobbs, Jeanine Pirro and Sean Hannity – at times did.
Murdoch is among several at Fox who have said privately that they do not believe claims made by Trump and his allies that widespread fraud led to his re-election. In his deposition, Murdoch said he could have kept the conspiratorial guests off the air, but he didn’t.
“One defense is that even false speech about a public figure is protected as long as it is believed by the speaker,” First Amendment lawyer Floyd Abrams said. “But no one at Fox is ready to say they believe those claims … and now there’s evidence that no one at Fox did. It’s a big blow.
Fox’s entire prime-time lineup personally disparaged Trump attorney Sidney Powell, according to court papers. Laura Ingraham, in a text to Carlson, called her “nuts”. In his deposition, Hannity said he didn’t believe her theory “for a second.” However, Powell was interviewed on Fox 11 times between November 8 and December 10, 2020, according to court papers.
Dominion’s lawyers said Fox argued it had no legal responsibility to air the most outrageous allegations, knowing they were false, as long as they were considered news.
Fox said Dominion presented an extreme view of defamation, where the network had a duty not to report the allegations but to prevent or denounce them as false.
“Under Dominion’s approach, if the president falsely accuses the vice president of plotting to kill him, the press will be responsible for reporting the allegations as long as someone in the newsroom thinks they’re not funny,” Fox’s attorneys said in a court filing.
“These rules will end the media,” Fox said.
There’s a high bar to prove libel — and that’s intentional, First Amendment attorney Lee Levine said. Dominion must show that a reasonable audience could conclude that someone at Fox made the allegations, not just the subject of the interview, he said.
However, Levine said, Dominion has the strongest defamation case he has seen in his 40 years of involvement in the topic.
George Freeman, executive director of the Media Legal Resource Center, said Fox should cite little-known “neutral reporting” standards that stem from court cases dating back to the 1970s. News organizations should not hesitate to report important news even when there are serious doubts about its truth, as long as the information comes from responsible and important sources.
But the U.S. Supreme Court didn’t consider that argument, and some lower courts rejected it. Nor is it clear whether the defense could legally apply in Dominion’s case against Fox.
There is sentiment among Republicans that Sullivan’s standards go too far to protect news organizations.
DeSantis last month asked the Supreme Court to reconsider libel laws, saying they are used to smear politicians and push people out of office. A bill being considered in the Florida Legislature will significantly weaken the standards in the state. Trump said last year that the court should consider his own defamation lawsuit against CNN as a “perfect vehicle” for revisiting precedents.
Some media law supports that the University of Minnesota’s Kirtley has spoken personally, people who are usually eager to support the press in libel cases, queasy about publicly supporting Fox in the voting machine lawsuit.
Many see the case as a substitute for holding Fox and Trump supporters accountable for what happens after the 2020 election, he said.
“I don’t think the libel suit is the vehicle to deal with this, and you have to think about what damage can be done to the libel law if Dominion wins,” she said.