NEW YORK — Fox News is on an unlikely collision course with two leading contenders for the Republican presidential nomination over journalists’ rights.
In its defense against a massive defamation lawsuit over 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 successfully sue media organizations for defamation.
Former President Donald Trump and Florida Gov. Ron DeSantis, two favorites of many Fox News viewers, have lobbied for the court to review the standard considered a fundamental case in America’s defamation law.
“It is ironic that Fox, leaning on a landmark case designed to help the news media assume the role of watchman in a democracy, is being targeted by Governor DeSantis, Donald Trump and other figures unattached in their attacks on journalists were considered enemies of the people,” said Jane Hall, a communications professor at American University.
Striking evidence has emerged from court filings over the past few weeks, revealing a split screen between what Fox presented to its viewers about the bogus allegations of voter fraud and what presenters and executives said 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 pursuing the allegations for Trump.
In an email a few weeks after the 2020 election, Fox Corp. Chairman Rupert Murdoch described a press conference with Powell and former New York Mayor Rudy Giuliani, another attorney who peddled the election lies: “Really crazy stuff. And harmful.”
Aside from revealing Fox’s inner workings, the outcome could have far-reaching implications for media organizations as they and the courts rely on the defamation law, which Fox uses as a shield.
In its $1.6 billion lawsuit, voting machine maker Dominion Voting Systems argues that Fox has repeatedly made claims that the company helped rig the general election against Trump, even though many of the news organization’s employees privately believed the claims were false.
Fox says the law allows such claims to be made if they are newsworthy.
In a 1964 decision in a case involving the New York Times, the US Supreme Court severely restricted the ability of officials to sue for defamation. It ruled that news outlets are protected from a libel verdict unless they can be shown to have published with “actual malice” – knowing something was wrong, or in “reckless disregard” for whether it was true is or not.
In an example of the law’s application, Times editors last year conceded that an editorial wrongly linked the rhetoric of former Republican vice presidential candidate Sarah Palin to a mass shooting in Arizona. Palin lost her libel lawsuit because, regardless of the truth, she could not prove the newspaper was wrong.
Some free speech advocates worry that the Dominion Fox lawsuit could ultimately give a conservative Supreme Court an opportunity to reconsider the standard set in the case known as New York Times Co. v. Sullivan. While the case is among the court’s most enduring precedents, the newly empowered Conservative majority has indicated its willingness to challenge the law — as it did last year when abortion rights were repealed.
Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have publicly expressed an interest in taking a different look at the precedent.
Contrary to a 2021 decision not to include a libel case, Gorsuch wrote that what began in 1964 as a decision to tolerate occasional errors in order to facilitate sound reporting “turned into an ironclad subsidy for publishing untruths with everyone.” means and developed on a scale previously unimaginable.” He said the modern media landscape is very different today and suggested less caution should be exercised.
“My wish is that the parties come to an agreement and this case is settled,” 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 anything good about it.”
A perceived strength in Dominion’s case also worries some supporters of the press.
Dominion says Fox is actually torn between the truth that Joe Biden deservedly won the race and pleasing viewers who wanted to believe Trump’s lies. In statements 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 – did at times.
Murdoch was among several at Fox who privately said they did not believe claims by Trump and his allies that widespread fraud cost him re-election. In his testimony, Murdoch said he could have prevented conspiracy-spreading guests from going on the air, but didn’t.
“One of the defenses is that even false statements about public figures are protected so long as they are believed by the speaker,” said First Amendment attorney Floyd Abrams. “But no one at Fox seems willing to say he or she believed the claims … and there now appears to be hard evidence that no one at Fox did.” This is a heavy blow.”
According to court documents, Fox’s entire prime-time lineup privately disparaged Trump attorney Sidney Powell. Laura Ingraham called her a “crazy” in a text to Carlson. In an affidavit, Hannity said he didn’t believe her theories “for a second.” Despite this, Powell was interviewed 11 times on Fox between November 8 and December 10, 2020, according to court records.
Dominion’s attorneys say Fox argues that it has no legal responsibility for making even the most horrifying allegations, because they know they are false as long as they are deemed newsworthy.
Fox said Dominion takes an extreme view of defamation, in which the network has a duty not to report the allegations but to suppress them or denounce them as false.
“If the president falsely accused the vice president of plotting to assassinate him, Dominion’s policy would be for the press to report the newsworthy allegations as long as anyone on the editorial board thought it ridiculous,” the attorneys at Dominion said Fox in court records.
“Such a rule would stop the media,” Fox said.
There’s a high bar for proving defamation — and it’s intentional, said First Amendment Attorney Lee Levine. Dominion needs to show that a reasonable audience could conclude that someone at Fox is making these allegations, not just the interviewees, he said.
Still, Levine said, Dominion has the strongest defamation case it has seen in 40 years of its involvement on the issue.
George Freeman, executive director of the Media Law Resource Center, said Fox should cite a lesser-known “neutral reporting” standard that dates back to a court case in the 1970s. It states that news organizations should not be dissuaded from reporting something newsworthy, even when there are serious doubts as to its truth, as long as that information comes from responsible and prominent sources.
But the US Supreme Court has not considered that argument, and a number of lower courts have dismissed it. It’s also not clear whether the defense in the Dominion case against Fox would be legally applicable.
The prevailing view in Republican circles is that the Sullivan Standard goes too far in protecting news organizations.
DeSantis last month asked the Supreme Court to reconsider defamation laws, saying they are used to defame politicians and discourage people from running for office. A bill under consideration in the Florida Legislature would significantly weaken standards in the state. Trump said last year that the court should consider his own defamation lawsuit against CNN a “perfect vehicle” for precedent-testing.
Some media rights advocates whom Kirtley of the University of Minnesota spoke to privately, people who are normally eager to support the press in defamation cases, have reservations about publicly supporting Fox in the voting machine lawsuit.
Many see the case as a surrogate to hold Fox and Trump supporters accountable for what happened after the 2020 election, she said.
“I don’t think a libel lawsuit is the way to deal with it, and you have to think about the damage the libel law could do if Dominion wins,” she said.