“If Fox had his way, the more ‘newsworthy’ the lie, the greater your right to spread it. However, the First Amendment does not give broadcasters the right to knowingly spread lies or ignore the truth,” a Dominion spokesman said in a statement. “As our complaint alleges, Fox decided to sell a false story about Dominion to bolster its ratings. Now, by falsely invoking the First Amendment, Fox is trying to alter the narrative to cover up his complicity – from the highest levels down – in knowingly spreading lies. Instead of acting responsibly and showing remorse, Fox have instead doubled down by publicly declaring that they take pride in their Dominion-related coverage. We are confident that ultimately the truth will prevail and we will hold Fox accountable for the tremendous and irreparable damage they have caused Dominion.”
There is no sign of a settlement at this time, and based on the court filings (as well as Fox’s decision to hire the heavyweight litigator Dan Webb), the case looks like it could really go to court. It’s scheduled to begin in Delaware state court in April 2023, and two legal issues are likely to draw a lot of attention: the error standard and the protection of opinion. Some background knowledge is useful here. Defamation is the publication of false statements of fact that damage the reputation of a person or organization, and the courts have developed principles to balance the interests of reputation and expression. The result is a labyrinthine area of law in which it is generally difficult for a plaintiff to win by proving numerous elements while parrying the other party’s defense.
The error standard is one of those elements. Officials and figures must prove that a defamatory statement was published knowing it was false or with reckless disregard for its truth or untruth (this is commonly referred to as actual malice). Dominion could be considered a socialite if, for example, the court concluded that the company was a leader in its field before Fox made it a household name. In addition, Dominion’s complaint and pre-trial motions already allege that Fox acted with actual malice, and in rulings on those motions, the court ruled that Dominion had made this reasonable assertion at this stage of the proceeding.
There is no doubt that the testimonies and interrogations, along with efforts to obtain Fox emails and texts, have seen Dominion investigate the extent to which Fox employees knew they were making false statements or were using them in reckless disregard for their spread truth or falsehood. The latter requires evidence of a “high awareness of their probable falsity”. This would take into account whether Fox’s sources were reliable, whether Fox ignored clear indications that the statements were false, whether Fox adequately investigated the facts, and the motives behind the statements. Ruthless disregard is often a mix of these factors, and it’s very likely that Dominion could demonstrate that based on what we know so far.
Next, privacy protection. One of Fox’s arguments is that its coverage is opinion and exaggeration rather than fact. This is play for the broad First Amendment protection for such a term. “There is no such thing as a wrong idea,” the Supreme Court once observed, adding: “No matter how pernicious an opinion may appear, we depend not on the conscience of judges and juries for its correction, but on competition other ideas.” But, as the court later noted, these safeguards did not “create a wholesale defamation exemption for anything that might be termed ‘opinion’”.
The difficulty lies in distinguishing opinion and exaggeration from fact. A shortcut is that facts are demonstrably true or false and opinions are matters of belief. In the Dominion litigation, some of the statements at issue are demonstrably true or false, and others are statements of belief implying untold facts—both of which are indictable. What’s more, for all opinions based on specified Facts must be accurately presented and reasonably interpreted. Otherwise, as the Supreme Court noted, “Even if the speaker states the facts on which he bases his opinion, if those facts are either false or incomplete, or if his assessment of those facts is wrong, the statement may still imply a false assertion.” Fact.” That will certainly be a problem for Fox.
Whichever way the trial plays out, assuming there is one, it would come at a time of growing concern about the role of disinformation in politics – and as the defamation law is being used nationwide as a weapon to rack up points and get at critics revenge. Two Exhibits: Former Republican Congressman Devin Nunes recently sued CNN for $435 million and esquire for $77.5 million in response to her critical comments about him; and Joe Arpaio, the former Arizona Sheriff, is being sued The New York Times for nearly $150 million after publishing a column that called him a “sadist masquerading as a civil servant.” These suits were politically motivated and performative, and they failed for good reason.
In contrast, the Dominion litigation is far more meritorious, and could reshape the conservative media landscape by restricting some of the political discourse and coverage of false statements — and by encouraging news organizations, especially cable TV networks, to be more careful with their live programming and their guests, not least how hosts respond to unsubstantiated guest claims.
All of which means: No, the Dominion cases aren’t layups, but if I were pulled into them as they stand now, I’d much rather have Dominion’s arguments.
This article has been updated with a statement from Dominion.
Jonathan Peters is Professor of Media Law at the University of Georgia, where he is also Chair of the Department of Journalism.
https://www.vanityfair.com/news/2022/09/dominion-fox-news-lawsuit-2020-election Dominion’s Lawsuit Is No Slam Dunk—But Neither Is Fox News’ Defense