Fox News is on trial, as are falsehoods about 2020

WILMINGTON, Del. On Monday, a judge in the Delaware Superior Court is expected to swear the jury in a defamation trial that has little precedent in US law. Fox News, one of the most powerful and profitable media companies, will defend itself against extensive evidence suggesting it told its audience a story of conspiracy and fraud in the 2020 election that it knew was untrue.

The jury will be asked to weigh lofty questions about the limits of the First Amendment and consider imposing a massive financial penalty on Fox. Some of the most influential names in conservative media — Rupert Murdoch, Sean Hannity, Tucker Carlson — are expected to be called to testify. But there is another fundamental question the case raises: Will there be a price to pay for profiting from the spread of misinformation?

Few people have been held legally accountable for their role in delegitimizing President Biden’s victory. Sidney Powell, a lawyer who was one of the leading disseminators of conspiracy theories about Dominion Voting Systems, the company that sued Fox for $1.6 billion, avoided suspension in Texas after a judge dismissed a complaint against her in February.

Jenna Ellis, an attorney who worked with Ms. Powell and the Trump campaign, was reprimanded last month instead of losing her license at the Colorado bar. Donald J. Trump, whose false insistence that he be stripped of victory led to a violent mob on January 6, 2021, is running for president for a third time and remains the clear front-runner for the Republican nomination.

Political disinformation has become so widespread in part because there is little the government can do to stop it.

“Lie to American voters is actually not a criminal offense,” said Andrew Weissmann, the former FBI general counsel who was a senior member of the special counsel team led by Robert S. Mueller that investigated Mr. Trump’s 2016 campaign.

It is a peculiarity of American law that most lies—even those that destabilize the nation, told by those of immense power and reach—cannot be prosecuted. Charges can only be brought in limited circumstances, such as if a businessman lies to shareholders or an individual lies to the FBI. Politicians can be sued if they lie about a campaign contribution, which is the crux of the criminal case against Mr. Trump by the Manhattan district attorney’s office.

In the Fox News case, the lawsuit continues because the law allows companies like Dominion and people to sue if they can prove their reputation has been damaged by lies.

The legal bar that a company like Dominion must meet to prove slander is known as actual malice. And it’s extremely difficult to prove because of the 1964 Supreme Court ruling in New York Times Company v. Sullivan, which ruled that government officials can only claim defamation if they can prove that the defendants knew they were making a false statement or that they were. reckless in the decision to publish the defamatory statement.

“There are all kinds of times when you can lie with impunity, but here’s a real victim,” Mr Weissmann added. “It’s only because of serendipity that they actually attacked a company.”

There is usually great reverence among media lawyers and First Amendment scholars towards the defendants in a libel case. They argue that the law should give the media breathing space to make mistakes, even serious ones, as long as they are not intentional.

But many legal scholars have said they believed there was enough evidence to support Dominion’s case, claiming they were deliberately harmed by the lies broadcast by Fox, and that they would be not only surprised but disappointed if a jury would not find Fox liable for libel.

“If this case goes in the wrong direction,” said John Culhane, a law professor at Widener University’s Delaware Law School, “it’s clear from my perspective that would be a terrible mistake, because this is about as strong as a matter where you go.” get slandered.” Mr Culhane added that a Fox win would only make it more difficult to curb the kind of misinformation that is rampant in pro-Trump media.

“I think it would give them even more courage,” he said.

This case has proved extraordinary on many levels, not just because of its potential to deliver the kind of judgment that has so far eluded prosecutors like Mr. Weissmann, who have spent years pursuing Mr. Trump and his supporters, who they believe have bent democratic system to a breaking point.

“Even if Donald Trump and Fox and the insurgency weren’t involved, this is a unique libel suit, period,” said David Logan, a professor of law at the Roger Williams School of Law and an expert on the subject. of libel. “There’s never been one like it.”

It is extremely rare for libel cases to reach a jury. Mr Logan said his research shows a steady decline over the years, with an average of 27 per year in the 1980s, but only three in 2017.

Some experts, such as Mr. Logan, believe the significance of the case may outweigh its relevance to the current disinformation-ridden political climate. They see an opportunity for the Supreme Court to eventually use the case as a means to revisit the libel law and standard for “actual malice”. The judges haven’t done that since a 1989 case involving a losing candidate for municipal office in Ohio who successfully sued a newspaper after it ran a false story about him a week before the election. The court said a public figure cannot receive damages unless there was “clear and compelling evidence” of actual malice.

The actual malice standard has been vital to individual journalists and media outlets making mistakes – as long as they are honest mistakes. But some scholars such as Mr. Logan — as well as two conservative Supreme Court Justices, Neil M. Gorsuch and Clarence Thomas — have argued that “actual malice” should be reconsidered as too high a standard. Judge Thomas specifically cited “the spread of untruths” as the reason.

“The nature of this privilege goes to the heart of our democracy, especially in this case,” said Mr Logan, whose document arguing that the courts have made it too difficult for libel victims to obtain relief was quoted in a dissent from Justice Gorsuch in 2021.

Fox lawyers are already gearing up for an appeal – a sign they have no illusions that defeating Dominion’s case will be easy. In several recent hearings before Judge Eric M. Davis, Fox was represented by Erin Murphy, an appellate attorney with experience arguing cases before the Supreme Court.

Dominion apparently considers the possibility of an appeal to be realistic. It had its own appellate attorney, Rodney A. Smolla, who argued on its behalf when questions arose last month about Fox’s defense of the First Amendment — the kind of constitutional questions federal appeals courts will hear.

The belief that the Supreme Court could eventually hear the Fox-Dominion case is shared by Fox Corporation general counsel Viet Dinh. Mr. Dinh, who will likely be called as a witness at the trial by Dominion, has privately told his colleagues that he believes Fox’s chances on the Supreme Court are good, certainly better than for a Delaware jury in people’s opinion. who knows his mind.

The evidence against Fox includes large amounts of text messages and emails showing that producers, hosts and executives disparaged the claims of hacked voting machines and conspiracy, details that Dominion says prove the network defamed it.

But Fox lawyers and its public relations department have argued that its broadcasts were protected under the First Amendment because they included the kind of coverage and commentary media outlets are entitled to at official events of major public interest.

“A free-flowing, robust American discourse depends on First Amendment protections for press newsgathering and reporting,” a spokeswoman for the network said in a written statement. The statement added that Fox viewers expected the kind of commentary that aired on the network after the election “just as they expect exaggeration, speculation and opinion from a newspaper’s opinion section.”

Judge Davis dismissed Fox on some of his First Amendment claims, limiting his ability to argue certain points at trial, such as his claim that it did not endorse false statements by the president and his allies, but only repeated as it would with any newsworthy news. rack.

A spokeswoman for Dominion expressed her confidence saying, “In the coming weeks, we will prove that Fox spread lies and caused massive damage to Dominion. We look forward to the trial.”

Within Fox, from its Los Angeles headquarters to the news channel’s headquarters in Manhattan, there is little optimism about the matter. Several current and former employees said privately that few people at the company would be surprised if a jury reached a verdict against Fox.

Judge Davis has expressed significant skepticism of Fox in court. He issued a sanction against Fox last week when Dominion disclosed that the company had not disclosed details of Mr Murdoch’s involvement in Fox News’ affairs, ruling that Dominion had the right to make further statements at costs from Fox.

But he does not have the last word. Twelve men and women from Delaware ultimately decide the case. And libel suits so rarely prevail, it’s also reasonable to consider the possibility of Fox winning — and what an election in 2024 looks like with an emboldened pro-Trump media.