Disinformation and press freedom: what’s at stake in the Dominion defamation case against Fox News

A $1.6 billion defamation lawsuit against Fox News over its coverage of the November 2020 elections is raising questions about Fox’s role as a professional news organization with media experts – and many members of the public - asking how the network can continue to get away with such brazen manipulation of the truth.

The lawsuit alleges that the network allowed its hosts – and guests – to deliberately lie to its audience by propagating a conspiracy theory that voting machines – manufactured by a U.S.-Canadian company, Dominion Voting Systems – somehow rigged the election for Joe Biden.

Beyond that, the lawsuit has highlighted what some observers say is the failure of some news organizations to adhere to basic media standards and principles of fairness, balance and accuracy, sometimes overlooked in the polarized state of U.S. politics and the quest for ratings and profit.

It has also raised questions about media regulation and disinformation in the digital era, as well as declining public trust in news organizations, which many observers say has opened the door to fake news and the manipulation of facts for financial gain or sinister political purposes.

The Fox "lies" are an attack on the democratic process

“What’s unprecedented here is that we are literally talking about lies that are directed specifically at our democratic process,” said Philip Napoli, professor of public policy at Duke University.

“It’s hard to underestimate the magnitude of the kind of lie we’re talking about here. This is not a celebrity thing and untruths being circulated. It’s not about an individual government figure being the subject of false reporting. It’s literally directed at undermining people’s confidence in the entire democratic process. It’s lies that attack the foundations of our country, that attack our democracy,” he added.

The outcome is being closely watched by those who fear it could bolster efforts at the Supreme Court to relax the First Amendment protection of the media and put tighter controls on free speech.

“It’s a reminder that all journalists and news organizations should hew to journalistic standards, and checks facts,” said Lili Levi, professor of media law at the University of Miami. At the same time, “it’s incredibly dangerous because it could have very, very harmful ripple effects. The press is a representative of the public and a big bulwark for democracy,” she added, noting that defamation law has been used in the past to silence media criticism of corrupt politicians.

Libel cases against the media are difficult to win, in large part because of the freedom of the press enshrined in the First Amendment to the Constitution, which protects the publication of diverse opinions, except when the publisher acts with malice, knowing the information is false, which is what Dominion argues in its lawsuit against Fox.

Dominion v. Fox News case headed to court on April 17

If the Dominion case goes to trial, as currently scheduled on April 17, the company will have to persuade a jury that Fox knew the election fraud claims were false but deliberately promoted them anyway. The case could be settled before then if a judge rules the evidence is overwhelming in favor of one of the sides, or Fox and Dominion agree to settle it out of court.

Among the evidence presented by Dominion are a chain of private text messages, emails, and deposition transcripts that reveal how some Fox hosts and top executives privately expressed a shocking disdain for Donald Trump and his legal team’s claims of vote fraud, while espousing those claims on air.

According to filings in the suit, one of the most prominent host, Tucker Carlson privately trashed the former president, at one point stating, “I hate him passionately.” The court documents also show that Fox executives, including its chairman, Rupert Murdoch, were far less concerned with delivering the truth about the election to their audience and far more worried about ratings and the approval of its ardent, pro-Trump audience.

Fox banking on a First Amendment defense

Fox has firmly denied the defamation accusation, calling it “a flagrant attack” on its First Amendment rights. “Dominion has come nowhere close to producing ‘clear and convincing’ evidence that the relevant individuals at Fox News made or published any challenged statement with actual malice,” the company said in a statement emailed to Univision Noticias.

A negative outcome for the company would have “grave consequences for journalism across this country,” it added.

Fox also said that the claim of $1.6 billion made by Dominion is “fanciful” and “wildly exaggerates” the financial losses it may have suffered as a result of the false accusations made about the performance of its voting machines.

The 'Sullivan framework'

At the core of the lawsuit is a 1964 landmark U.S. Supreme Court ruling, known as New York Times v. Sullivan, that created a standard of “actual malice” in order for a plaintiff to prove their case in defamation disputes. Previously, defamation was the domain of the states and was a plaintiff friendly doctrine that was used in the 1960s to stifle media coverage of the civil rights movement in the southern states.

The ruling was made during the Civil Rights movement and involved a fund-raising ad published in the New York Times seeking donations in Alabama to defend Martin Luther King, Jr. A Public Safety Commissioner in Alabama, L.B. Sullivan, sued the New York Times because he felt the ad reflected badly on him, and contained errors about the number of times King had been arrested.

An Alabama jury awarded Sullivan $500,000 in damages, a fortune in those times, posing a major risk to the economic viability of newspapers.

The Supreme Court later reversed the jury’s decision saying that even though the ad contained factual errors they were unintentional and the decision to publish it contained no “reckless disregard” for the truth. The so-called ‘Sullivan framework’ has been the standard for proving defamation ever since.

Is it time to review defamation law?

In recent years two conservative Supreme Court judges, Clarence Thomas and Neil Gorsuch, have argued in favor of revisiting the Sullivan ruling, arguing in part that the media ecosystem has changed so much that more needs to be done to protect the public from the avalanche of disinformation.

But using the defamation law to regulate the scourge of political disinformation brings with it the risk of rolling press freedom to the civil rights era in the 1960s before the Supreme Court ruling in the Sullivan case. As a result, press freedom advocates fear that could be the death knell for investigative journalism that keeps public figures accountable.

"It's like trying to kill a gnat with a nuclear bomb," said Levi.

Instead of going down the route of restricting the press freedom, the Dominion lawsuit “is actually a good opportunity for the law as it is to operate as it should,” Levi says. “When news organizations are not acting like news organizations should, then they will be brought to account,” she added.

The Fox business model

Since its creation 26 years ago, Fox News has successfully created its own brand, with a news division run by professional journalists, as well as a team of highly opinionated conservative commentators who dominate evening prime time. While it made big profits, it’s evening hosts aroused constant controversy over their disregard of the three pillars of journalism: fairness, balance and accuracy.

“In general, most media organizations believe that their value proposition rests with the credibility that they have with their audience in terms of the accuracy of the information that they provide,” said Joel Simon, the founding director of the Journalism Protection Initiative at the Newmark Graduate School of Journalism at the City University of New York (CUNY). “If someone undermines that the consequences for that organization can be telling,” he added.

Fox News adopted a different strategy. “If you’re in the business of telling your audience what it wants to hear, then the incentives are different. The business model is different,’ said Simon.

In court documents, Fox Chairman Rupert Murdoch said he made a business decision when allowing the election conspiracy theory to be aired on Fox News.

“It is not red or blue; it is green,” he told lawyers in a deposition made public Monday.

Trump inspired "firehouses of BS"

Fox’s strategy became even more politicized with the emergency of Trump, and his huge national following, which some say has ‘weaponized’ news in a way never before witnessed in the United States.

“Trump created a whole new permission structure for a lot of people to just turn on firehoses of BS and monetize it and self-aggrandize from it. I think Tucker (Carlson) learned from that and I think he’s grateful for that new environment because he’s thrived in it,” one former Fox contributor, Jonah Goldberg, told CNN on Wednesday.

The Dominion case could be a major reality check for Fox’s business model. If it loses the case, Goldberg and others are predicting a major personnel shakeup at the network. “I don’t think this will be fatal for Fox,” said Goldberg. “It would be a big blow. I think it could trigger shareholder lawsuits, all sorts of things. But Fox is a giant ATM machine. It is not something that they want to lose for sure, and I do think there is going to be a considerable bloodletting down the road,” he added.

Could the Dominion case cause a backlash against press freedom?

Some are now asking if it could lead to tighter government regulation of the media. While newspapers have never been regulated, the broadcast media is required to obtain a license to use airwave frequencies from the Federal Communications Commission (FCC) which are by nature considered to be a limited and public asset.

However, that does not cover cable channels, such as Fox News.

“While Fox has clearly harmed the public interest, the FCC is constrained in what it can do under current rules,” said Victor Pickard, professor of Media Policy and Political Economy at the University of Pennsylvania. “Much of the dangerous behavior that threatens democratic society stems from Fox News Channel, which is a cable network and therefore doesn't hold a license to the public airwaves and is not under the same FCC regulatory oversight,” he added.

The current Telecommunications Act of 1996 predates most digital media and cable and satellite companies and considers broadcast media to be those networks that historically delivered their content via TV antennas. “We are overdue for a thorough re-examination,” said Napoli.

Fox could face a big fine, but will it's audience remian loyal?

Fox has faced a backlash in the past from advertisers over sexual harassment cases involving its hosts. But those have proved only temporary setbacks.

Fox could potentially risk being dropped by media providers around the country, though cable companies bundle multiple channels into packages for consumers, with little option for households to opt out of channels they don’t want, except for premium services for movies, as well as sports and foreign language outlets.

If Fox loses the Dominion case it could set a costly precedent for Fox. A separate case brought by voting technology firm Smartmatic is seeking $2.7 billion in damages. Dominion has also brought similar lawsuits against several key members of Trump’s legal team, former New York mayor, Rudy Giuliani, Lindsey Powell and Mike Lindell.

But even that may not be enough to change Fox’s business model, as long as its hosts like Carlson, remain popular.

“The real trick is when Tucker’s audience realizes he’s playing them. Until they do, he’s going to remain popular, he’s going to remain faithful to them. He considers his role as far as I can tell to simply be the voice of his biggest fans. And he’s not going to disappoint them,” said Goldberg.