Fox defamation defense at odds with GOP president’s top opponents

NEW YORK (AP) — Fox News is in an unlikely showdown with two of the leading Republican presidential contenders over journalists’ rights.

Defending itself against a massive libel lawsuit over its coverage of false claims related to the 2020 presidential election, the network is relying on a nearly 60-year-old Supreme Court ruling that makes it difficult to successfully prosecute the media for defamation.

Former President Donald Trump and Florida Gov. Ron DeSantis, two favorites of many Fox News viewers, have argued for the court to reconsider the standard considered a foundational case in US defamation law.

“It’s funny that Fox is relying on a landmark case that was designed to help the media play its role as a watchdog in democracy and is being attacked by Governor DeSantis, Donald Trump and other figures who have not held back in their attacks on journalists. enemies of the people,” said Jane Hall, professor of communication at American University.

Eye-catching evidence has surfaced in court documents in recent weeks, showing a split screen between what Fox portrayed to its viewers about false allegations of election fraud and what presenters and executives have said about them backstage. “Sidney Powell is lying,” Fox News host Tucker Carlson said in a text message to a producer, referring to one of the lawyers making claims in favor of Trump.

In an email a few weeks after the 2020 election, the chairman of Fox Corp. Rupert Murdoch described a press conference involving Powell and former New York Mayor Rudy Giuliani, another lawyer who promoted election lies: “Really crazy stuff. And it does damage.”

Beyond the revelations about Fox’s inner workings, the outcome could have major implications for media organizations due to how they and the courts have come to rely on the libel law that Fox uses as a shield.

In its $1.6 billion lawsuit, voting machine maker Dominion Voting Systems alleges that Fox has repeatedly made allegations that the company helped rig the general election against Trump, despite what many at the news organization privately believed were statements are false.

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Fox says the law allows such statements to be aired 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 public officials to sue for defamation. It ruled that news outlets were immune from libel suits unless it could be proven that they published stories with “virtually malicious intent” – knowing something was false, or acting with “reckless disregard” for being true. or not.

As one example of how the law has been applied, the editors of the Times admitted last year that an editorial mistakenly linked the rhetoric of former Republican vice presidential candidate Sarah Palin to the mass shooting in Arizona. Palin lost the libel suit because she couldn’t prove the paper was wrong without caring about the truth.

Some free speech advocates fear that the Dominion-Fox lawsuit could eventually give the conservative Supreme Court a chance to revisit the standard set in the case known as the New York Times Co. against Sullivan. While the case has been one of the most enduring precedents in the court, the newly empowered Conservative majority has shown a willingness to challenge what was considered established law, as they did last year when the right to abortion was abolished.

Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have publicly expressed interest in revisiting the precedent.

Disagreeing with the 2021 decision not to file a libel suit, Gorsuch wrote that what began in 1964 as a decision to tolerate occasional errors in order to ensure reliable reporting has “become an ironclad subsidy for publishing lies by any means and on a previously unimaginable scale.” . He said that the contemporary media landscape is very different today and suggested that he is less cautious.

“I want the parties to come to an agreement and this case is closed,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. “I don’t see anything good in this.

The perceived strength of the Dominion cause also worries some press supporters.

Dominion says Fox was essentially torn between the truth that Joe Biden legitimately won the race and pleasing viewers who wanted to believe Trump’s lies. In testimony released last week, Murdoch claimed that Fox as a network did not support the claims, but that some of its commentators — Maria Bartiromo, Lou Dobbs, Janine Pirro and Sean Hannity — sometimes did.

Murdoch was one of several Fox employees 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 that he could have prevented the guests who spread the plots from going on the air, but did not.

“One of the defenses is that even false information about public figures is protected if the speaker believes in it,” said First Amendment lawyer Floyd Abrams. “But no one at Fox seems ready to say that he or she actually believed the allegations…and now there seems to be substantial evidence that no one at Fox did. This is a serious blow.”

The entire Fox cast privately humiliated Trump lawyer Sidney Powell in prime time, according to court documents. Laura Ingram, in a message to Carlson, called her “crazy”. In his testimony, Hannity said he did not believe her theories “for a second”. However, according to court documents, Powell was interviewed by Fox 11 times between November 8 and December 10, 2020.

Lawyers for Dominion say Fox claims it is not legally responsible for airing even the most horrendous allegations, knowing they are false, as long as they are considered newsworthy.

Fox said that Dominion represents an extreme view of defamation, in which the network is obligated not to report the allegations, but to cover them up or denounce them as false.

“Under Dominion’s approach, if the president falsely accuses the vice president of conspiring to kill him, the press will be held responsible for reporting newsworthy allegations for as long as someone in the newsroom finds it ridiculous,” Fox lawyers said. in court documents.

“A rule like that will stop the media,” Fox said.

According to First Amendment lawyer Lee Levine, there is a high bar for proving defamation, and this is by design. Dominion, he said, needs to show that a reasonable audience can conclude that someone at Fox was making these accusations, not just the interviewees.

However, Levine said the Dominion has the most serious defamation case it has seen in its 40 years of involvement in the subject.

George Freeman, executive director of the Media Law Resource Center, said Fox should refer to a lesser-known “neutral reporting” standard that dates back to a 1970s court case. He argues that news organizations should not be discouraged from reporting something noteworthy, even if there are serious doubts about its veracity, as long as the information comes from reliable and known sources.

But the U.S. Supreme Court did not take this argument into account, and a number of lower courts rejected it. It is also unclear whether the defense in Dominion v. Fox would be legally enforceable.

There is a feeling in Republican circles that Sullivan’s standard goes too far in protecting news organizations.

DeSantis last month called on the Supreme Court to overhaul libel laws, saying they are being used to vilify politicians and discourage people from running for office. A bill being considered in the Florida Legislature would significantly weaken standards in the state. Trump said last year that the court should view his own defamation lawsuit against CNN as a “perfect tool” to review precedents.

Some media law advocates that Kirtley of the University of Minnesota spoke to privately, people who normally seek to support the press in libel cases, are nauseated by Fox’s public support in the voting machine lawsuit.

Many are seeing 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 suit is a remedy for this problem, and you should think about what damage the libel law could do if the Dominion wins,” she said.

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