Dominion Case Could Reshape Libel Law

From a New York Times story by Michael M. Grynbaum headlined “Dominion Case Could Reshape Libel Law”:

Dominion Voting Systems’ defamation case against Fox News, which goes to trial in Delaware next week, is expected to stoke hot-button debates over journalistic ethics, the unchecked flow of misinformation, and the ability of Americans to sort out facts and falsehoods in a polarized age.

For a particular subset of the legal and media communities, the trial is also shaping up as something else: the libel law equivalent of the Super Bowl.

“I’ve been involved in hundreds of libel cases, and there has never been a case like this,” said Martin Garbus, a veteran First Amendment lawyer. “It’s going to be a dramatic moment in American history.”

With jury selection set to begin on Thursday in Delaware Superior Court in Wilmington, the case has so far been notable for its unprecedented window into the inner workings of Fox News. Emails and text messages introduced as evidence showed the Fox host Tucker Carlson insulting former President Donald J. Trump to his colleagues, and Rupert Murdoch, whose family controls the Fox media empire, aggressively weighing in on editorial decisions, among other revelations.

Now, after months of depositions and dueling motions, the lawyers will face off before a jury, and legal scholars and media lawyers say the arguments are likely to plumb some of the knottier questions of American libel law.

Dominion, an elections technology firm, is seeking $1.6 billion in damages after Fox News aired false claims that the company had engaged in an elaborate conspiracy to steal the 2020 presidential election for Joseph R. Biden Jr. The claims, repeated on Fox programs hosted by anchors like Maria Bartiromo and Lou Dobbs, were central to Mr. Trump’s effort to persuade Americans that he had not actually lost.

Lawyers for Fox have argued that the network is protected as a news-gathering organization, and that claims of election fraud, voiced by lawyers for a sitting president, were the epitome of newsworthiness. “Ultimately, this case is about the First Amendment protections of the media’s absolute right to cover the news,” the network has said.

It is difficult to prove libel in the American legal system, thanks in large part to New York Times v. Sullivan, the 1964 Supreme Court decision that is considered as critical to the First Amendment as Brown v. Board of Education of Topeka is to civil rights.

The Sullivan case set a high legal bar for public figures to prove that they had been defamed. A plaintiff has to prove not just that a news organization published false information, but that it did so with “actual malice,” either by knowing that the information was false or displaying a reckless disregard for the truth.

The question of that motivation is central to the Dominion case. The trial judge, Eric M. Davis, has already concluded in pretrial motions that the statements aired by Fox about Dominion were false. He has left it to the jury to decide if Fox deliberately aired falsehoods even as it was aware the assertions were probably 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 that it had not sufficiently embraced Mr. Trump’s claims of fraud. Dominion can wield that evidence to argue that Fox aired the conspiracy theories involving Dominion for its own financial gain, despite ample evidence that the claims were untrue. (Fox has responded that Dominion “cherry-picked” its evidence and that the network was merely reporting the news.)

Mr. Garbus, the First Amendment lawyer, has spent decades defending the rights of media outlets in libel cases. Yet like some media advocates, he believes that Fox News should lose — in part because a victory for Fox could embolden a growing effort to roll back broader protections for journalists.

That effort, led mainly but not exclusively by conservatives, argues that the 1964 Sullivan decision granted too much leeway to news outlets, which should face harsher consequences for their coverage. Some of the leading proponents of this view, like the Supreme Court justice Clarence Thomas and Gov. Ron DeSantis of Florida, are conservative heroes who are sympathetic to the right-wing views of Fox programming. But if Fox prevails in the Dominion case, despite the evidence against it, the result could fuel the argument that the bar for defamation has been set too high.

Not all media lawyers agree with this reasoning. Some even think a loss for Fox could generate problems 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 detected from Fox critics “an intense desire for someone to say definitively that Fox lied.” But she added, “I don’t see a victory for Dominion as a victory for the news media, by any means.”

“As an ethicist, I deplore a lot of what we’ve learned about Fox, and I would never hold it up as an example of good journalistic practices,” Ms. Kirtley said. “But I’ve always believed that the law has to protect even those news organizations that do things the way I don’t think they should do it. There has to be room for error.”

Ms. Kirtley said she was concerned that the Dominion case might lead to copycat lawsuits against other news organizations, and that the courts could start imposing their own standards for what constituted good journalistic practice.

Dominion’s effort to unearth internal emails and text exchanges, she added, could be reproduced by other libel plaintiffs, leading to embarrassing revelations for news outlets that might otherwise be acting in good faith.

“It’s an intense scrutiny into newsroom editorial processes, and I’m not sure that members of the public will look at it very kindly,” she said. “Maybe the emails show they’re being jocular or making fun of things that other people take very seriously.”

Journalism, she said, “is not a science,” and she said she felt uncomfortable with courts determining what constituted ethical news gathering.

Fox suffered some setbacks this week before the trial. On Tuesday, Judge Davis barred the network from arguing that it aired the claims about Dominion on the basis that the allegations were newsworthy, a crucial line of defense. On Wednesday, he imposed a sanction on Fox News and scolded its legal team after questions arose about the network’s timely disclosure of additional evidence. The judge said he would probably start an investigation into the matter; the network said its lawyers had produced additional evidence “when we first learned it.”

The trial may feature testimony from high-profile Fox figures, including Mr. Murdoch, Mr. Carlson, Ms. Bartiromo and Suzanne Scott, the chief executive of Fox News Media.

Michael M. Grynbaum is a Times media correspondent covering the intersection of business, culture and politics.

Speak Your Mind