The Fox News lawsuit and the network’s defense tactics in court

NEW YORK – The Fox News television network appears to be headed for an unusual standoff over the stances of two of the main contenders in the party’s race to be its official 2024 presidential nominee.

The network has been sued for defamation over the way it reported on unsubstantiated claims of rigging during the 2020 presidential election. To defend itself during the lawsuit, Fox News has decided to rely on a decision made almost 60 years ago previously by the Supreme Court, which makes it difficult for defamation suits against media organizations to succeed.

Former President Donald Trump and Florida Governor Ron DeSantis, the two favorite contestants for many Fox News channel viewers, have asked the court to reconsider this standard, which is considered the foundation of defamation laws in the United States.

“It’s ironic that Fox is relying on a major court case that was brought up to help the news media play a watchdog role in democracy, and that is now being attacked by Governor DeSantis, by Donald Trump and others who have been unrestrained in their attacks on journalists as enemies of the people,” says Jane Hall, professor of communication at American University.

Conspicuous evidence has emerged over the past few weeks from court filings that present a split picture between what Fox presented to viewers about the unsubstantiated claims of election manipulation, and what journalists and channel executives were saying about it. thing, away from the eyes of the cameras. “Sydney Powell lies,” he wrote in a message to producer Tucker Carlson, host of the Fox News show, talking about one of the lawyers who supported the claims of former President Trump.

In an email message sent after the 2020 election, Fox Corporation chairman Rupert Murdoch described a news conference attended by Ms. Powell and former New York Mayor Rudy Giuliani, now serving as the lawyer supporting him. accusations about the elections, like “A true madness. And damaging”.

In addition to these revelations about the behind-the-scenes goings-on at the Fox television network, the outcome could also have far-reaching consequences for media organizations as they, and the courts, rely on the defamation law that Fox is using for defense.

In the lawsuit seeking $1.6 billion in damages, the company that makes the vote counting machines, Dominion Voting Systems, says Fox repeatedly aired allegations that Dominion helped rig the election against former President Trump, even though many of the employees at this media organization said privately that the claims were false.

Dominion Company Vote Counting Equipment

Fox says the law allows it to air such allegations if they make news.

In a 1964 decision in a case involving The New York Times, the Supreme Court limited the scope for public officials to sue for defamation. It ruled that news organizations are protected from such lawsuits unless they can be proven to have published material with “actual malice” – that is, knowing something was false, or acting with a “clear disregard” for whether was it like that or not.

An example of how this law has been implemented was last year when the editors of the Times newspaper admitted that an editorial made a false connection between the rhetoric of former Republican vice presidential candidate Sarah Palin and a mass shooting in Arizona. Ms. Palin failed to win the lawsuit because she could not prove that the newspaper erred irresponsibly against the truth.

Some free-speech activists worry that Dominion’s lawsuit against the Fox network could open the way for the now-conservative-majority Supreme Court to revisit the standard established in the New York Times Co. v. Sullivan”. Although the case has set one of the longest-standing legal precedents, the new conservative majority on this court has shown a willingness to challenge aspects that were considered legally settled — as it did last year when it overturned abortion rights.

Two members of the Supreme Court, Clarence Thomas and Neil Gorsuch, have publicly expressed interest in reconsidering this precedent.

In his opinion opposing a 2021 decision to deny admission of a defamation case, Justice Gorsuch wrote that what began in 1964 as a decision to tolerate wrongdoing, with the goal of allowing vigorous media reporting, “it has become an iron cover for the publication of falsehoods at any cost, and it has reached a scale unimagined before”.

“My wish would be for the parties to find a compromise solution and for this matter to be closed,” 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 any good that can come from this matter.”

One of the perceived strengths of Dominion’s lawsuit is troubling some press supporters.

According to the Dominion Voting Systems Company, the Fox News network was divided, on the one hand, with the truth that Mr. Joe Biden legally won the election, but on the other hand, he had to satisfy that part of the audience that believed Mr. Trump’s lies. .

According to the court document made public last week, Mr. Murdoch has argued that the Fox network did not support the allegations of election manipulation; however, several Fox News anchors such as Maria Bartiromo, Lou Dobbs, Jeanine Pirro and Sean Hannity have done so on several occasions.

Mr. Murdoch was among many on the Fox network who expressed in private conversations that he did not believe the claims of Mr. Trump and his allies that because of massive fraud he could not be re-elected.

President Trump speaking on Fox News in 2020

In his evidence, Mr Murdoch claims that he could have prevented guests who were zealously spreading conspiracy theories from going on air, but he did not.

“One of the defense arguments is that if a statement to a public figure is false, it is protected as long as the person making it believes that statement.” explains attorney Floyd Abrams.

“But no one at the Fox News network seems willing to say they believed these claims. While there now appears to be substantial evidence that no one at Fox News believed those claims. This is a heavy blow”, he adds.

According to court documents, the entire Fox News anchor chain has denigrated Mr. Trump’s lawyer, Sidney Powell, in private conversations. Presenter Laura Ingraham, while exchanging messages with her colleague Tucker Carlson, referred to the lawyer Powell with the nickname “nut”.

In the testimony given, the presenter Sean Hannity said that he did not believe “for one second” the claims of manipulation. However, according to court documents, attorney Powell was interviewed 11 times on Fox News between November 8 and December 10, 2020.

Lawyers for Dominion say the Fox network argues it has no legal liability for airing even the most serious allegations it knew were false, as long as they were news.

Fox News says Dominion is taking an extreme anti-defamation view, according to which the network’s job was not to give voice to the claims, but to censor and denounce them as false.

“In Dominion’s view, if the president falsely accused the vice president of plotting to kill him, then the media would be legally responsible for reporting the allegations that constituted news, as long as someone in the newsroom thought (the story) was funny.” , Fox network lawyers say in court documents.

According to the Fox network, “such a rule would inhibit the media’s mission”

First Amendment attorney Lee Levine says “the bar to prove defamation is high and it was done that way.”

According to him, Dominion must prove that a significant portion of the general public would have concluded that it was someone from the Fox News network who made the claim, and not just the people they interviewed.

However, the lawyer claims that Dominion has filed the strongest defamation lawsuit in at least the last 40 years that Mr. Levine has been dealing with such cases.

George Freeman, director of the Center for Legal Media Resources, said the Fox network should cite a lesser-known standard of “impartial reporting” that dates back to a 1970s court case.

According to this case, a media organization should not be discouraged from reporting something that constitutes news, even though there are serious doubts about its veracity, as long as the news in question comes from a responsible and high-level source.

However, the United States Supreme Court has not considered this argument; meanwhile, it has been rejected by a large number of other courts. It is not yet clear whether this defense argument could be legal in the case of Dominion’s lawsuit against Fox.

In Republican circles, there is a feeling that the “Sullivan” standard goes much further than it should in the protection of media organizations.

Florida Gov. Ron DeSantis asked the Supreme Court last month to review defamation laws, saying they are used to smear politicians and discourage people from running for office. A bill currently under consideration in the Florida Legislature would significantly weaken the standards in the state.

Last year Mr Trump said the court should consider his defamation suit against CNN as a “perfect vehicle” for re-examining previous cases.