Press freedom doesn’t protect Fox News’ deliberate lies

Fox News last week responded to an arson court filing in the Dominion Voting System’s $1.6 billion defamation lawsuit by alleging that “at the core of this case is freedom of the press and freedom of expression, which are fundamental rights afforded by the Constitution and… protected New York Times v. Sullivan.”

Sullivan, the landmark ruling on freedom of the press, is indeed central to this case. Because of this, Fox faces a potentially disastrous court case and the possibility of a gargantuan liability judgment.

Dominion’s recent filing reveals dozens of scathing private statements from Fox figures and executives showing they knew Team Trump’s claims of a rigged election were bogus. But Fox continued to spread the lie that Trump actually won the election.

Other news organizations have had a great day with deeply embarrassing internal emails, texts and snippets of testimony exposing Fox’s apparent two-sided behavior. Even as the Fox stars relayed Trump’s false allegations to their viewers, they doubted and denigrated them in conversations among themselves.

Dominion, the voting gear maker that has found itself at the center of outlandish right-wing conspiracy theories about the election, submitted a brief brimming with nuggets for Fox’s critics. Tucker Carlson, for example, wrote to Fox News host Laura Ingraham that Trump attorney Sidney Powell is “lying.” Ingraham responded by calling Powell a “complete nut.”

My personal favorite: When a Fox reporter correctly noted on Twitter that there was no evidence of Trump votes being deleted or lost, Carlson texted another moderator, Sean Hannity, “Please let her fire. Seriously… what the heck? … It has to stop immediately, like tonight. It damages the company measurably. The share price has gone down.”

The immediate reason for Carlson’s and the station’s panic was that ultra-right broadcaster Newsmax was making modest inroads into misinformation-ridden Fox viewers, many of whom were already upset that Fox was leading the stations by pinpointing the crucial state of Arizona called Biden on election night.

So after the election, Fox made sure to follow the official Trump line that he had been betrayed. In doing so, Fox executives and personalities didn’t just coax viewers to avoid losing them to Newsmax and other competitors. They also treated her with contempt, feeding her lies they were too sophisticated to believe.

The 1964 Supreme Court case that Fox relied on New York Times vs. Sullivanprotects publishers from liability for defamation unless they make false claims with “actual malice,” meaning they either knew they were false or recklessly disregarded their accuracy.

According to the court, punishing publishers for bad faith would intimidate the press into restraining themselves in order to avoid liability. And that would mean that the public would not learn truths that can only be exposed by a vigorously free and fearless press.

In other words, Sullivan provides an additional level of protection, even for inaccurate reporting, to protect the freedom of the press to hold the government and others accountable, which the First Amendment values.

But mistakes are one thing; knowingly lying is another. What Fox’s pious proclamation of press freedom overlooks is that lies such as the network appears to have told its viewers do not enjoy or deserve constitutional protection. The values ​​embodied in Sullivan do not protect Fox, they endanger him.

The case against Fox is indeed unusually strong. Defamation lawsuits often involve the work of neglectful or sensationalist reporters who sneak past fact-checking safeguards. Dominion’s allegations, on the other hand, threaten to expose a conscious corporate decision to ignore the truth and publish lies.

Fox claims the inflammatory quotes in Dominion’s brief were edited out to paint a misleading portrait. Maybe like this. If summary judgment motions fail, which they almost certainly will, and the parties don’t reach an agreement, that will likely be resolved in a trial scheduled for April.

Fox must be terrified of the prospect, but it may have no viable option but to defend itself against what may be one of the most risky libel trials in US history.

Another piece of bad legal news for Fox is that defamation is being considered statement by statement. This means that even isolated false statements that have become known can make the company liable.

Since Sullivan, very few American media outlets have been held liable for defamation. More often, such cases are dismissed before they even deal with the facts. This is due to the very high burden of proof that a defendant knew his reporting was false.

Unfortunately for Fox, however, Dominion appears to have compelling evidence that the network knowingly lied to its audience, sacrificed integrity for ratings, and prioritized profits over truth.

Harry Litman hosts the Talking Feds Podcast. @harrylitmann