The Dominion Voting Systems v. Fox News defamation case, set for trial in Delaware next week, is expected to spark heated debates about journalistic ethics, the unchecked flow of misinformation and Americans’ ability to sort facts from falsehoods. to put. polarized age.
For a certain subset of the legal and media communities, the lawsuit also takes shape in something else: the equivalent of the Super Bowl libel law.
“I’ve been involved in hundreds of libel cases, and there’s never been a case like this,” said Martin Garbus, an experienced First Amendment attorney. “It will be a dramatic moment in American history.”
With jury selection beginning Thursday in Delaware Superior Court in Wilmington, the case has stood out so far for its unprecedented look at the inner workings of Fox News. Emails and text messages used as evidence revealed that Fox host Tucker Carlson insulted former President Donald J. Trump in front of his colleagues, and Rupert Murdoch, whose family controls the Fox media empire, among others participated aggressively in editorial decisions.
Now, after months of depositions and dueling motions, the lawyers will face a jury, and lawyers and media lawyers say the arguments are likely to resolve some of the toughest questions of US libel law.
Dominion, an election technology company, is seeking $1.6 billion in damages after Fox News aired false claims that the company was involved in an elaborate conspiracy to overthrow the 2020 presidential election for Joseph R. Biden Jr. to steal. The claims, repeated on Fox programs hosted by anchors like Maria Bartiromo and Lou Dobbs, were central to Trump’s attempt to convince Americans that he hadn’t really lost.
Fox lawyers have argued that the network is protected as a news-gathering organization, and that claims of election fraud made by attorneys for a sitting president were the epitome of news value. “Ultimately, this case is about First Amendment protection of the media’s absolute right to cover the news,” the network said.
Fox News v Dominion Voter Systems
Documents from a lawsuit filed by voting machine maker Dominion against Fox News have shed light on the debate within the network over false claims related to the 2020 election.
It’s hard to prove libel in the US legal system, thanks in large part to New York Times v. Sullivan, the 1964 Supreme Court decision that’s considered pivotal to the First Amendment as Topeka’s Brown v. Board of Education is to civil rights .
The Sullivan case set a high legal bar for public figures to prove they had been defamed. A plaintiff must prove not only that a news organization published false information, but that it did so with “actual malice”, either by knowing the information was false or by displaying a reckless disregard for the truth.
The question of that motivation is central to the Dominion case. Trial Judge Eric M. Davis has already concluded in preliminary motions that Fox’s statements about Dominion were false. He left it to the jury to decide whether Fox was intentionally telling falsehoods, even though he knew the allegations were likely false.
Documents show Fox executives and anchors panicking over a viewer revolt in the aftermath of the 2020 election, in part because the network’s viewers believed it hadn’t adequately embraced Trump’s fraud allegations. Dominion can use that evidence to claim that Fox was broadcasting the conspiracy theories about Dominion for its own financial gain, despite sufficient evidence that the claims were untrue. (Fox has replied that Dominion “cherry-picked” its evidence and that the network was merely reporting the news.)
Mr. Garbus, the First Amendment attorney, has spent decades defending the rights of media outlets in defamation cases. But like some media advocates, he believes Fox News should lose — in part because a win for Fox could encourage a growing effort to roll back broader protections for journalists.
That effort, led primarily but not exclusively by conservatives, argues that the 1964 Sullivan decision allowed too much leeway for news outlets, which should have harsher implications for their reporting. Some of the main proponents of this view, such as Supreme Court Justice Clarence Thomas and Florida Governor Ron DeSantis, are conservative heroes sympathetic to the right-wing views of Fox programming. But if Fox wins in the Dominion case, despite the evidence to the contrary, the result could fuel the argument that the bar for libel has been set too high.
Not all media lawyers agree with this reasoning. Some even think a loss for Fox could spell trouble for other news organizations.
Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press who teaches media law at the University of Minnesota, said she sensed “an intense desire among Fox critics that someone would say definitively that Fox was lying.” But she added, “I don’t see a win for Dominion as a win for the news media in any way.”
“As an ethicist, I regret much of what we have learned about Fox, and would never consider it an example of good journalistic practice,” Ms Kirtley said. “But I’ve always believed that the law should protect even those news organizations that do things the way I think they shouldn’t. There must be room for error.”
Ms Kirtley said she was concerned the Dominion case could lead to copycat lawsuits against other news organisations, and that the courts could start imposing their own standards for what constitutes good journalistic practice.
Dominion’s attempt to trace internal emails and text exchanges, she added, could be reproduced by other libel accusers, leading to embarrassing revelations for news outlets that would otherwise act in good faith.
“It’s an intense scrutiny of the editorial processes at the newsroom and I’m not sure the public will look at it very kindly,” she said. “Maybe the emails show that they are funny or joke about things that other people take very seriously.”
Journalism, she said, “isn’t science,” and said she was uncomfortable with courts having to determine what constitutes ethical newsgathering.
Fox suffered some setbacks this week before the trial. On Tuesday, Judge Davis barred the network from claiming it broadcast the Dominion allegations on the basis that the allegations were newsworthy, a crucial line of defense. On Wednesday, he sanctioned Fox News and scolded the legal team after questions were raised about the network’s timely disclosure of additional evidence. The judge said he would likely launch an investigation into the matter; the network said its lawyers provided additional evidence “when we first heard”.
The trial may feature testimony from high-profile Fox figures, including Mr. Murdoch, Mr. Carlson, Ms. Bartiromo and Fox News Media CEO Suzanne Scott.
Audio produced by Parin Behrooz.
