The most consequential libel trial in decades, Dominion Voting Systems’ $1.6 billion lawsuit against Fox News Network, was supposed to begin on Monday. The trial’s start has now been pushed to Tuesday — which could be an indication that Fox is looking to settle. To be sure, pretrial rulings have already given Dominion a significant boost in proving its case to a Delaware jury.
But the case — however it ends up — is not only consequential for Fox’s journalistic reputation, and bank account. Also at issue is the viability of Supreme Court rulings in the 1960s providing sweeping protection for media companies, even when they disseminate false information.
Libel lawsuits are tough for a public figure or corporation to win, and rightly so.
Specifically, the landmark First Amendment decision in New York Times v. Sullivan created the test of “actual malice,” and that test requires Dominion to prove that when Fox News broadcast false and defamatory statements about “rigged” Dominion voting machines after the 2020 election, Fox News knew the statements were false or acted with reckless disregard about their truth or falsity. “Malice” in this context is a confusing misnomer, as the standard has nothing to do with the normal dictionary definition, such as hatred or ill will. Instead, it focuses on the subjective state of mind of Fox News.
Libel lawsuits are tough for a public figure or corporation to win, and rightly so, given the First Amendment value of a free press. The legal standard is so protective of the media that almost all such libel suits are dismissed prior to trial.
And yet Dominion’s case, as disclosed in pretrial discovery and pretrial rulings, is exceptionally strong. If Dominion loses, then the constitutional question will be whether the existing actual malice rule favors a defendant too much.
That high constitutional standard already has critics on the current Supreme Court. Two conservative Supreme Court justices, Clarence Thomas…
Read the full article here