Fox News is in trouble. The network has been sued for $1.6 billion by Dominion Voting Systems for false claims it aired about the 2020 presidential election. Fox hosts, and many of the guests they showcased, claimed that Dominion’s technology “stole” votes from defeated President Donald Trump, and, among their more wild allegations, claimed that Dominion’s machines were engineered in Venezuela with the help of Hugo Chávez (who died in 2013) to rig elections.
Most defamation suits against media companies are dismissed on First Amendment grounds, but this lawsuit, filed in March of 2021, has already survived a motion to dismiss. Most suits that survive this long are settled (like the lawsuit brought by the parents of Nicholas Sandman against The Washington Post), but, in this case, Dominion has little incentive to settle. Its entire business model requires the public’s trust, and a clear statement that Fox was lying, on purpose, is probably worth more to it than whatever Fox would offer by way of a “no fault” settlement. Moreover, Fox might not want to settle this case: Smartmatic, another voting machine company, has also filed a $2.7 billion lawsuit against Fox, and that case has survived a motion to dismiss as well. If Fox settled with one, it would almost have to settle with the other. Both companies have also sued Newsmax, which seems to be competing with CNN for Fox’s audience.
Cases like this usually settle because media defendants don’t want to open themselves up for “discovery,” which allows plaintiffs to see internal discussions at the organization. Fox is offering an object lesson as to why companies fear discovery. The Dominion lawsuit has already uncovered a number of e-mails that paint Fox in a terrible light. These e-mails have shown that Fox owner Rupert Murdoch and others in the company did not believe the election conspiracy theories their own network was pushing. The Dominion lawsuit is shaping up as the biggest threat to Fox News since the network emerged to threaten democratic self-government.
Fox isn’t giving up, though. For its defense, the company argues that it wasn’t promoting lies about Dominion but merely covering lies other people told. Here’s how Fox’s lawyers explained this defense in their filings: “It is plain as day that any reasonable viewer would understand that Fox News was covering and commenting on allegations about Dominion, not reporting that the allegations were true.”
I think that Fox’s addled viewers absolutely believed the network’s lies about Dominion and that the 2020 election was in some way “rigged.” Some of them even went on to attack the Capitol in an attempt to overthrow the government and hang the vice president of the United States. But as a legal proposition, sure, this is the most credible argument for Fox to make.
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The relevant legal standard for this situation was set by the Supreme Court in 1964 in the seminal case New York Times Company v. Sullivan. In a unanimous opinion, the court ruled that the First Amendment gives broad protections to media companies reporting on the news, even if the news is false. But the First Amendment is not a blank check for the media to lie. To succeed against a news organization, plaintiffs have to show that the false reports or statements were made against them with “actual knowledge” or “reckless disregard” for the truth.
That is a very high bar, but Fox employs some very bad journalists. Suggesting that a foreign leader who had been dead for seven years helped build voting machines used to rig the 2020 election sure sounds like “reckless disregard” for the truth about the election or the space-time continuum. I can’t predict how an actual trial against Fox News would play out, but if you wanted to construct a pattern of news coverage that fails even under the generous protections of NYT v. Sullivan, Fox’s postelection coverage would be a good place to start.
Should the case go to trial, and should Fox wind up on the losing end, the company would have another problem during the appeals process: A couple of the Supreme Court justices most likely to watch Fox News might be unwilling to save it. Even though the court is stacked with Republican appointees, the ideology of at least some of them does not help Fox in this case.
The reason is that these conservatives don’t want to strengthen NYT v. Sullivan, even if it would protect media organizations like Fox. They want to destroy it so that it’s easier for aggrieved rich people to sue the so-called “liberal” media for coverage they don’t like. When Trump talks about “opening up libel laws,” this is what he’s talking about, and while Trump himself lacks an intellectual core and defends Fox’s coverage of his failed campaign, the conservatives on the Supreme Court might stick to their ideological guns.
Chief among those conservatives is Justice Clarence Thomas. He’s already on record as wanting to reconsider NYT v. Sullivan, and has written that the case is a policy decision “masquerading as constitutional law.” Thomas wrote that in a 2019 case where the court rejected a defamation claim against serial rapist Bill Cosby made by one of his victims. Thomas agreed with the court, but wrote separately, weaving in his thoughts on revisiting Sullivan just to show how serious he was about overturning the case.
And Thomas is not alone among his conservative compeers. In a 2021 case, Berisha v. Lawson, where the Supreme Court again declined to hear a defamation case, Thomas and Justice Neil Gorsuch both wrote dissents that criticized NYT v. Sullivan. Gorsuch wrote: “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
For Fox to win on appeal at the Supreme Court after losing at trial, the court would first have to agree to hear an appeal of a normal (if high-profile) state court action against the network. Then Fox would have to find the votes to win. Arguably, Justices Sonia Sotomayor and Ketanji Brown Jackson would be inclined to think that Fox should be liable for pushing obvious election falsehoods, even under the robust application of NYT v. Sullivan favored by most liberals. Justice Elena Kagan is also on record worrying about taking NYT v. Sullivan too far, but could almost certainly be counted on to rule against granting Fox protection for lying. And it’s hard to see how Thomas and Gorsuch could be convinced to strengthen Sullivan to the point where media outlets can publish stories they internally believe to be false, even to save the Republican Party’s precious propaganda network. That’s potentially five votes against Fox right there.
That’s why I think it’s unlikely that the Supreme Court would take up this case at all, regardless of who wins or loses at trial. If Fox wins, I don’t think conservatives would try to take a whack at NYT v. Sullivan in a case that damages Fox, when they can just wait for the next time an aggrieved white boy gets his feelings hurt by a legacy media company. If Fox loses, I don’t think there are enough people on the court who would risk strengthening media protections for everybody, just to bail Fox out of a state tort action.
All of this means: Fox News is in trouble. It is opened up for discovery; it is facing plaintiffs with little incentive to settle; and it is potentially cut off from the Supreme Court sugar daddies who usually ride to the rescue of conservative causes. Oh, and it broadcast and republished lies and falsehoods about the 2020 election until some of its viewers participated in a failed coup d’état.
Fox could still win. But this time it has tied itself close enough to Tucker Carlson’s testicle tanning–based journalism to actually feel some heat.
