Fox News: Lie Telecast

THE BAR FOR defamation in America is set very high. So high that most defamation cases against the media do not go to trial simply because the plaintiff fails to prove that the claims in question are false, let alone that malice was intended. Americans’ right to free speech, bulwarked by the great wall called the First Amendment, ensures a latitude to freedom of expression hardly found elsewhere. You could get away with saying nearly anything. And yet, the Fox News vs Dominion Voting Systems case was an outlier that might not have stuck to this course—had it gone to trial. For one, the claims of voting fraud made against Dominion were already proven to be false when the edifice of Donald Trump’s allegations about the 2020 election was demolished. All that needed to be proved by Dominion was that Fox had deliberately misled its audience and the public at large by parading a story it knew beforehand to be a lie.

What was billed as the defamation trial of the century, and was unarguably one of the biggest cases involving a media house, was ultimately settled out of court. Fox will pay Dominion $787.5 million of the $1.6 billion the latter had initially sought, leaving the Rupert Murdoch-owned broadcaster chastened but free to carry on, although it still faces a defamation lawsuit from Smartmatic, another election technology company. Dominion, on the other hand, not only makes a substantial amount of money—much more than the $177 million ABC had to pay in a 2017 case—but also recovers its reputation and will pursue its cases against other Trump associates.

Now, the questions are: Has anybody actually won? And would it have helped or harmed the media industry had Dominion gone and won the case in court (which outcome had seemed likely according to several legal experts)? The wisdom of the street, or rather the newsroom, is that Dominion had an advantage because of the depositions from producers, journalists and show hosts, including Murdoch Sr himself, covering private emails, text messages, etc, which apparently demonstrate the fact that many of them had questioned and were critical of the claims Fox News was making about Dominion even as those claims were being aired for the public. Star hosts like Tucker Carlson and Sean Hannity did not believe those claims (words like “absurd’, “insane”, etc were used by Carlson privately). Murdoch Sr had acknowledged that there should have been stronger denunciation of the false allegations and that he could have kept the more conspiracy theory-mongering guests from appearing on air. But none of that was done. Fox had publicly called the Dominion lawsuit “a political crusade in search of financial windfall”. But in those depositions, it is argued, lay the proof of intended malice. Had the jury seen it the same way, Fox would have ended up more than merely embarrassed.

The plaintiff’s need to prove “actual malice” was spelt out in the 1964 New York Times vs Sullivan case. That ruling related to public officials suing for defamation but it became the standard that took a successful defamation trial beyond the rudiments of what was said, how and where. To prove “actual malice”, the plaintiff must show that the defendant knew the allegation or statement to be false, or at least did not attempt to verify it. The Fox depositions perhaps had made Dominion’s job easier—it seems that they knew; and yet they pushed ahead with the lie. Therefore, calculating where the trial might go and the costs of it, including the public spectacle of having Rupert Murdoch and a host of celebrity Fox faces testify, the company settled.

But the matter is more complicated. Victory for Dominion may have been a triumph of truth but not necessarily a boon for journalism. Doubtless, the outcome would have had far-reaching consequences for libel cases in the US, and maybe fundamentally altered election coverage. Most importantly, it would have made it far easier for media outlets to be sued, regardless of bad or good faith. Fox and Dominion have helped maintain the status quo with their win-win, or lose-lose. Ethics vs Free Speech? We don’t know yet.

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