Source: Wall Street Journal (free link).
The writer describes three profound weaknesses of Dominion Voting Systems’ defamation lawsuit against Fox News:
First, it isn’t defamatory for journalists to report on newsworthy allegations made by others, even when those allegations turn out to be false. As long as claims are presented only as allegations and not asserted to be true, legal responsibility for any defamatory content rests with those making the allegations, not the news outlet. If you examine the relevant statements by Fox hosts in context, it is clear the company was simply reporting the allegations, not reporting that those allegations were true.
Second, defamation applies only to false statements of fact, not statements of opinion. Thus, it isn’t defamatory for a journalist to provide commentary—stating an opinion about an allegation—as long as he doesn’t assert that the defamatory aspects of the allegations are true. Thus, in Fox’s case, to the extent hosts made comments suggesting the claims were troubling, or serious, or warranting an investigation, those comments were opinions and can’t serve as the basis for a defamation claim.
Finally, it has long been held that First Amendment considerations require giving media speakers more “breathing space” for protecting unintentional false statements made when reporting on issues of serious public concern or on actions of key players in those controversies. These cases are governed by the “actual malice” standard first enunciated by the Supreme Court in New York Times Co. v. Sullivan (1964). In these circumstances, a media speaker isn’t liable for defamation, even for a false statement of fact, unless he knows when he makes the statement that what he is saying is false or gravely doubts its truth.
But, but, but Fox lied! Right?
No. Fox reported.
12 thoughts on “Dominion’s Weak Case Against Fox”
“…unless he knows when he makes the statement that what he is saying is false or gravely doubts its truth.”
Or, per the case: “…with reckless disregard of whether it was false or not…”
Memos from Murdoch on down affirm that no one at FOX ever thought the accusations they agreed to, encouraged and aired nightly were true.
Not just the opinion side either. Baritromo was FOX Business, and she aired and agreed.
And FOX News reporter was threatened with firing for contradicting the fraud accusations.
Remember, this is not media v. government, but rather a private slander case.
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RE: “Memos from Murdoch on down affirm that no one at FOX ever thought the accusations they agreed to, encouraged and aired nightly were true.”
This is a perfect “so what” moment. Notice that no one at Fox ever was under any legal obligation to believe that the accusations were true. Think of the consequences if they were; all of journalism would become impossible.
Or consider the standard of “reckless disregard.” Since Fox never asserted in public that the accusations were true, we can’t say that Fox “disregarded” the truth, recklessly or otherwise.
RE: “Remember, this is not media v. government, but rather a private slander case.”
That is correct, but the case also offers no basis for private censorship, and we shouldn’t want it to.
We should not want it to?
You think it is okay to knowing spread damaging lies about someone’s business to tens of millions of people? I disagree. Defamation law exists to protect people from malicious liars. Dominion and Smartmatic should win their suits. I hope big payouts with punitive damges puts Fox out of business, or at least, makes them mend their ways.
RE: “You think it is okay to knowing spread damaging lies about someone’s business to tens of millions of people?”
I think that is not the relevant issue and we shouldn’t make it the relevant issue unless we want to become fascists.
That is the relevant issue. If FOX brought on guests nightly for weeks that said you were a sex trafficker, agreed and did not challenge, your life would be hell. Threats, maybe loss of job, family, friends.
Then you find out that no one at FOX believed that you were, but ratings were up and money flowed.
I think you might have a case, unless, of course, you thought they had a right to virtually destroy you in the name of the 1st Amendment.
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It is not “fascist” to seek redress in court for damages. That is simply absurd.
There is no general principle at stake. The trial is going to be about the facts. Did Fox’s behavior meet the criteria for defamation. There are three . . .
1) a false statement purporting to be fact;
2) publication or communication of that statement to a third person
3) fault amounting to at least negligence;
The trial will revolve around the third criteria and with the owners and hosts having full knowledge that they were spreading falsehoods, Dominion has a very strong case.
Note there is no need to prove malice. Just negligence.
RE: “If FOX brought on guests nightly for weeks that said you were a sex trafficker, agreed and did not challenge, your life would be hell.”
Maybe so, but my case would be against the guests, not Fox.
Try to grasp the deeper moral issue here: Democracy needs an effective Fourth Estate. If we let the concern you raise be the relevant issue we can’t have an effective Fourth Estate.
“Try to grasp the deeper moral issue here. . . ”
There is no deeper moral issue. The issue is simple. Can you defame someone without consequences. The answer is no.
Without laws against intentional slander, there would no effective Fourth Estate. Freedom of the press guarantees that you will not be prosecuted for criticizing, rightly or not, the governments from local to DC.
Individuals and corporations can sue for defamation, however. The bar is lower, but still high enough to need a good case. Plus the legal costs are high.
Interestingly enough, one of the defenses is that FOX celebrities are just entertainers (with the curious exception of Baritromo on FOX Business News, who pushed the conspiracies also.). Carlson defended himself by stating through his attorney that no thinking person would believe him anyway. (Paraphrased.)
So, being just an entertainer rather than a member of the free press, may not shield him as well. Dominion is a private company, not a public figure.
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RE: “It is not ‘fascist’ to seek redress in court for damages. That is simply absurd.”
It is, however, fascist to convict people for crimes they haven’t committed. Your description of the rule of law as it applies in this case doesn’t jibe with the former AG’s. This is just another example of dishonesty on your part.
So, I am dishonest?
And why is that?
Because you have nothing of substance to say.
I will repeat the “dishonest” thing I said : “It is not ‘fascist’ to seek redress in court for damages.”
Yeah, it’s very weak. It doesn’t matter if you fiercely believe something to be false or not if all you are doing is reporting someone else’s assertions as theirs and not yours.