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From QAnon to anti-vaxxers, we are living in a golden age of conspiratorial thinking. And now comes a big court ruling that should give any media entity that traffics in questionable nonsense some pause.
On Thursday, a judge rejected Fox News’ motion to dismiss in a lawsuit claiming the Sean Hannity network defamed Dominion Voting Systems in the wake of the 2020 presidential election, which Joe Biden won.
The 52-page opinion from Delaware Superior Court Judge Eric Davis certainly deserves attention, but it’s easy to lose sight of just why it’s important. So before getting to the real issues that should prompt Fox News’ leaders to think long and hard, let’s address a couple of widespread misinterpretations about this latest decision.
The suit was filed this March, with Dominion portraying Fox News and its personalities Lou Dobbs and Jeanine Pirro as active participants in advancing conspiracy theories about the corrupt manipulation of the company’s voting machines and tabulation software. “The truth matters,” Dominion asserts in its complaint. “Lies have consequences. Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process. If this case does not rise to the level of defamation by a broadcaster, then nothing does.”
All fine and well, but there was at least one thing about this suit that should have inspired a heavy touch of skepticism in reporting circles: the $1.6 billion in alleged damages, which includes $600 million in lost profits and $1 billion in “lost enterprise value.”
Sure, it’s possible that Dominion eventually wins that amount. Just as it’s possible that Dominion wins twice that amount, or half that amount, or one-tenth that amount. As most lawyers will acknowledge, the big-figure number that’s put in the complaint is fairly meaningless and arbitrary, and often aimed at attracting media attention. So, sorry, headline writers. You’ve been had. By the same token, Judge Davis’ ruling is not significant because the network now must contend with a potential $1.6 billion loss. The truth is more abstract and less sensational at this juncture.
Next comes the notion that the decision matters because Fox News suddenly faces an embarrassing discovery process. Fact is, nobody involved in this case was the least bit surprised by what happened yesterday, because discovery has already been happening for months. The green light has been on for some time — and the judge was just slow in formally offering his reasoning for this fait accompli. And sure, the network will put up a fight to shield items like Rupert Murdoch’s emails from prying eyes, but here’s a question that all Fox News haters should ask themselves: Have you seen much evidence that Fox News is particularly susceptible to shame? If not, there may be a Logan Roy meme for you.
No, the best reason why Fox News — and certainly others — should take this decision seriously has to do with something called neutral reportage privilege. What the network was essentially arguing was that it can’t be impermissible to air something that’s absolutely newsworthy — here, when the leader of the nation makes allegations of election fraud. Such a restriction, Fox News attorney Scott Teller argued at a dismissal hearing, would “shut up the media for good.”
In most states, media entities are allowed to publish information from public proceedings — like court cases — without risk of liability, even if they’re relying upon documents that turn out to contain falsehoods. By nodding to a supposed neutral reportage privilege, Fox News attempts to go further, arguing that it’s permissible to republish something false so long as it comes from an authoritative source.
The notion that a defendant gets a pass when objectively reporting newsworthy charges comes from a 2nd Circuit opinion in 1977 (Edwards v. National Audubon Society), but in follow-up cases (like Hogan v. Herald), most courts have explicitly rejected any neutral report privilege. The Supreme Court hasn’t ruled, and here, Fox News aimed to expand First Amendment protections to basically anything said by Trump and his lawyers.
That’s right, a brand of unfettered Trumpism was on the line.
Ultimately, Judge Davis gives deference to what’s alleged in the pleadings, assuming it’s true for the purpose of this early motion and allowing fact-finding, but before he does so, this judge in a state where Fox is incorporated opines that neutral reportage “seems to run contrary to United States Supreme Court precedent as it seems to create a nearly unqualified privilege.”
Adds the judge: “The United States Supreme Court has attempted to strike a balance between First Amendment freedoms and viable claims for defamation. In doing so, the United States Supreme Court has declined to endorse per se protected categories like newsworthiness. Instead, the determination of how much protection should be afforded the media has been left to the states.”
Judge Davis then suggests that neutral reportage is unavailable as a defense against claims from both public and private plaintiffs, and even if it were otherwise, Fox News would still have to show that it accurately and dispassionately reported the newsworthy event. The network may counter that it merely provided a forum for Trump’s claims (as outrageous as they may have been) and allowed Dominion and election experts to provide their own viewpoints (after stern legal warnings), but that’s not buying Fox News an out — at least absent any exploration of its bias.
All this isn’t to suggest that Fox News is necessarily doomed. The defendant still has arguments to make on summary judgment after the factual record develops through discovery, and it’s possible that today’s loss on the neutral reportage front becomes tomorrow’s win on, say, fair report privilege. That’s exactly what happened when BuzzFeed, for example, faced defamation claims after publishing the Steele Dossier. Fox News will continue to point to those court cases with which Trump attempted (rather fruitlessly) to overturn the election in a bid to justify any statements related whatsoever (even prematurely) to them.
But for now, this decision should cause Fox News (and its insurers) to reflect on just what it can get away with. And who it’s handing the microphone to. Not just in this case. But really, every night on Tucker Carlson’s show, on Sean Hannity’s, on Laura Ingraham’s.
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