Should news channels be responsible for the claims of guests who appear on their shows?
Dominion Voting Systems says Fox News should be, and it wants more than a billion dollars from the cable giant in court.
According to The Associated Press, Dominion filed a $1.6 billion defamation lawsuit against Fox News in a Delaware court on Friday, saying the company “sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.”
Dominion is the voting technology company that figured heavily in coverage of then-President Donald Trump’s allegations about a stolen election for reasons that need no recapitulation. In its lawsuit, Dominion mentions several Fox News hosts and claims they either made claims about Dominion or aired interviews with personalities such as lawyers Rudy Giuliani and Sidney Powell and MyPillow CEO Mike Lindell.
All three of those figures said they had evidence that Dominion’s machines were involved in a massive voting fraud conspiracy; if that evidence exists, it’s yet to be offered.
It’s also worth noting Fox News’ Tucker Carlson aired a scathing denunciation of Powell during the process, and another guest on the network was a Dominion representative.
As Dominion tells it, this wasn’t about hearing from disparate voices who were part of the drama playing out in the weeks and months after Election Day. Instead, because Fox News had lost some conservatives’ confidence with its election coverage, it “set out to lure viewers back — including President Trump himself — by intentionally and falsely blaming Dominion for President Trump’s loss by rigging the election.”
“Fox, one of the most powerful media companies in the United States, gave life to a manufactured storyline about election fraud that cast a then-little-known voting machine company called Dominion as the villain,” the lawsuit read.
“[E]ven after Fox was put on specific written notice of the facts, it stuck to the inherently improbable and demonstrably false preconceived narrative and continued broadcasting the lies of facially unreliable sources — which were embraced by Fox’s own on-air personalities — because the lies were good for Fox’s business,” it continued.
“These lies transformed Dominion into a household name. As a result of Fox’s orchestrated defamatory campaign, Dominion’s employees, from its software engineers to its founder and Chief Executive Officer, have been repeatedly harassed,” the lawsuit said. “Some have even received death threats. And of course, Dominion’s business has suffered enormous and irreparable economic harm.”
“The truth matters. Lies have consequences,” it said. “If this case does not rise to the level of defamation by a broadcaster, then nothing does.”
According to National Review, while Dominion hasn’t filed suit against individual Fox hosts, it’s considering the move.
“The buck stops with Fox on this,” Dominion attorney Stephen Shackelford said. “Fox chose to put this on all of its many platforms. They rebroadcast, republished it on social media and other places.”
In a statement, Fox News stood by its coverage.
“Fox News Media is proud of our 2020 election coverage, which stands in the highest tradition of American journalism, and we will vigorously defend against this baseless lawsuit in court,” the company said in a statement Friday.
In another case against another litigious voting machine manufacturer — Smartmatic — Fox moved to dismiss the lawsuit on the basis that it would serve to “stifle debate and chill vital First Amendment activities.”
That gets closer to the problem with the Dominion lawsuit.
While the company has been in court not infrequently these past few months, this is its first lawsuit against a news network. In this respect, Dominion is getting a late start; Smartmatic sued Fox in February.
Dominion attorney Justin Nelson alleged “a conscious, knowing business decision to endorse and repeat and broadcast these lies in order to keep its viewership.”
The same thing should be said about this that was said about Powell’s allegations of voter fraud: If that can be proved in court, I’d love to hear it. So would the rest of America.
What the lawsuit describes is something out of “Network,” the 1976 film in which network executives willingly decide to exploit an unhinged anchor, Howard Beale, for ratings.
That works well in film, but it’s less believable when the gist of the case is that an entire slate of executives let a web of hosts and guests simply yell, as Beale did, “I’m as mad as hell, and I’m not going to take this anymore!” for a few months on end.
If Dominion’s lawyers can prove this in court, that’s an impressive feat. Perhaps they don’t even need to do that. What they do need to do is clear the bar set by New York Times v. Sullivan in 1964.
In that case, the Supreme Court ruled that to succeed on a defamation claim, plaintiffs must meet the “actual malice” standard — that the defendant published or said a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”
That $1.6 billion figure — enough to ruin many companies — is pretty substantial to hang on the idea that Fox News executives and hosts acted this way.
Perhaps enough obloquy has been thrown Fox News’ way via “big lie” talk, essentially equating its hosts with Nazis, that a judgment against Fox News in the case would be a one-off that wouldn’t have a chilling effect on the entire media’s ability to bring you analysis, especially analysis that is controversial.
I wouldn’t be so sure.
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