In recent weeks, the American public has been privy to the startling private communications of high-level executives and media personalities at Fox News. The revelation of those internal communications is due to the lawsuit Dominion Voting Systems brought against the media company that is now set to go to trial later this month. In addition to some of the headline-grabbing but legally irrelevant remarks – like Tucker Carlson’s admission that he hates Trump passionately – there have been some whose legal relevance is clear and indeed devastating in this hotly contested courtroom battle. Those remarks make it clear that Fox News knew that conspiracy theories about the 2020 election were flatly false, yet still engaged in months of broadcasting such falsehoods. One of the legally damning remarks even came from Fox News CEO Suzanne Scott: she sent an email to the network’s head of programming, demanding that fact-checking election-rigging claims “has to stop now.”
Now the Delaware state court has decisively ruled that the statements at issue in the case are false. Here’s what the judge wrote on the falsity question (in the only italicized and all-caps sentence in the entire 81-page opinion): “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”
That ruling was part of an extraordinary order partially granting summary judgment in favor of Dominion, and completely denying the summary judgment motion brought by Fox News. Summary judgment is when a party argues that a trial is unnecessary because there are no factual disputes for the judge or a jury to decide and because the law can lead only to one outcome (a win for that party and a loss for the other side). In this case, both parties moved for summary judgment, and the judge mostly sided with Dominion and against Fox News.
This outcome is remarkable for those of us with experience litigating defamation cases. Given the high burden in these lawsuits on plaintiffs such as Dominion, judges are typically inclined either to rule for the defendant, or at least to send the case to the jury. It’s far rarer for a court to rule – even partially – for the plaintiff, as the judge did here for Dominion, especially on the central issue of demonstrable falsehood. At trial, that means the jury will not need to determine if the statements are false because the judge has already ruled as much. The jury need only decide whether Fox News spread the false claims about Dominion while knowing that they were untrue or being reckless as to their falsity, and to determine what, if any, damages Dominion should receive to compensate it for the harm from Fox News’ actions.
Despite the rarity of such a result, extraordinary facts can lead to extraordinary outcomes. Here, the extraordinary background included dozens of lawsuits failing to establish any evidence whatsoever of irregularities in the 2020 presidential election. That track record would have made it difficult for any court to find any question of fact regarding the falsity of statements accusing Dominion of having faked the election’s results.
Nor should anyone have been surprised by some of Dominion’s other victories on lesser issues. As part of the ruling, Dominion won the right to prevent Fox News from raising defenses that it was just voicing opinions for which it couldn’t be held liable, or just fairly reporting the news. Dominion also won its argument that it does not need to prove that what Fox News broadcasted about it was harmful. Given the facts and the applicable law, the court’s decision was entirely reasonable.
Fox News further argued in its court filings that its broadcasts were constitutionally protected under the First Amendment. We strongly disagree, as did the judge in this case. There is little doubt that Dominion’s suit for damages met and indeed exceeded the standard the Supreme Court established in 1964 in New York Times Co. v. Sullivan for deciding when the First Amendment shields whoever disseminates material damaging to the reputation of a public official or public figure from liability. The standard set by that case and respected thousands of times since has been that the publisher of such material can be found liable if it knew the statement was false or acted with reckless disregardfor its truth or falsity. The law is clear that reckless disregard – that is, indifference to truth – is enough to establish liability for resulting reputational harm. In Dominion’s case, there appears to be overwhelming evidence that Fox News, its producers, and its hosts were more than just reckless. Dominion’s pinpointing of actual quotations from those individuals, including Fox News owner Rupert Murdoch, is breathtaking.
Although former Attorney General William Barr has argued that applying this longstanding rule in the Fox News lawsuit would deal a “major blow to media freedoms generally,” nothing could be further from the truth. Applying Sullivan to this case would curtail no freedom – beyond the spurious “freedom” to broadcast knowing falsehoods that damage the reputations of those they defame without having to be held accountable. Far from “paring back” the First Amendment’s protections, Dominion went the extra mile of conceding the applicability of the Sullivan standard even though the Supreme Court has not yet held that corporations like Dominion must show anything beyond negligent falsehood to prevail when suing for defamatory material dealing with matters of public concern.
Nor is Barr correct when he argues that the First Amendment has previously shielded media outlets from liability based on damaging falsehoods that originate from third parties and that defendants then air on their platforms, at least if the platforms do not expressly endorse those falsehoods. On the contrary, if that had been the rule, then the Supreme Court would have had no need to create the high standard it announced over half a century ago in Sullivan. The allegedly defamatory material in that case took the form of false statements about Sherriff Sullivan which appeared in a fundraising ad in the paper placed by civil rights organizations and was not “endorsed” by the publisher. Rather than holding The Times immunized from liability by the fact that the falsehood was attributable to a third party and not endorsed by the paper, the Supreme Court left no doubt that The Times could have been held liable if it ran the ad knowing it contained false statements of fact or with reckless disregard of that falsity.
Indeed, the recent debates over repealing or modifying Section 230 of the Telecom Act of 1996 would be incomprehensible if Barr’s position correctly stated First Amendment law. That statute provides immunity for online media platforms hosting third party content. No lawmakers, lawyers, or academics of whom we are aware have seriously argued that the First Amendment itself provides that immunity, which would of course make Section 230 altogether redundant and the heated debate over that statute pointless.
In any event, even if it were the case that a media outlet cannot be held liable for third-party material that it disseminates unless it endorses that material – which it emphatically is not – the recently unredacted evidenceDominion plans to introduce easily meets that requirement: its expected proof at trial shows a high likelihood that Fox News hosts did much more than neutrally report the “Big Lie” that the 2020 election had been stolen from then-president Trump by a conspiracy of which Dominion was a part; instead, they deliberately created the strong impression that they believed that lie themselves while saying offscreen that they did not. (Consider just one text chain between Tucker Carlson and one of his staffers. The staffer texted him, “Have you seen last night’s numbers?” and, “It’s a stupid story but this is all the viewers are into right now.” Carlson responded, “I noticed.”)
Nor is it the case, as Barr argues, that media outlets would be prevented from ever broadcasting interviews with blatant liars like Rudy Giuliani or Sidney Powell if Dominion were to prevail at trial. Applying Sullivan in this context simply asks whether the media company published the lies those guests spread with knowledge or reckless disregard of their falsity and deliberately refrained from fact-checking and correcting them.
Barr also suggests that many if not all the statements at issue in Dominion’s case are non-actionable statements of opinion. That would perhaps be a fitting consequence of the “post-truth” era ushered in by Trump, but some of the statements Fox News and Barr brush off as mere expressions of opinion are in fact capable of being proven true or false. The relevant statements in this case fall roughly into four silos: that Dominion rigged the election; that its software and algorithms manipulated vote counts; that the company is owned by a Venezuelan enterprise founded to rig elections for Hugo Chavez; and that Dominion paid kickbacks to government officials. Nothing in the case law supports treating those flagrant misstatements as mere matters of opinion: their factual falsity is demonstrable in all but the “alternative facts” universe that Fox News appears to have promoted.
For the press to function – and to serve its absolutely crucial role of reinforcing democracy by nurturing an educated public and helping the nation’s citizens make informed decisions when they vote or make their views known to those serving in government positions – it cannot be hamstrung by the fear of a lawsuit any time good-faith reporting turns out to have been inaccurate. Nor can the relaxed standard of mere negligence suffice to encourage the robust reporting and wide-open public debate democracy demands when the targets of critique are public figures like the sheriff in Sullivan or even public companies like Dominion.
But that does not mean the media must be given free rein to spew whatever falsehoods those who profit from it believe will drive up their numbers. Such falsehoods do as much to discredit the media and undercut its vital democratic function as would too relaxed a standard of liability. Sullivan’s standard – requiring proof of deliberate or reckless factual falsehood – achieves those goals admirably: good-faith reporters are protected, while those who knowingly air baseless and dangerous conspiracy theories are liable when those lies cause real-world harm. And where that harm is substantial, it is only reasonable that monetary damages must be paid to compensate for the resulting injury. In this case, those damages are potentially astronomical, perhaps starting at Dominion’s claimed $1.6 billion in compensatory damages, which can be multiplied several times over in punitive damages.
A jury will now have to decide these issues – whether Fox News acted with the requisite knowledge of falsity or disregard for truth and how much harm it potentially inflicted. A jury finding that Fox News is on the hook for 10-figure sum in this case would be both a fair outcome and a victory for democracy – and for the continued vitality of the appropriately balanced approach to the First Amendment set forth in Sullivan.