Opinion | How the Fox Settlement Keeps a Deep-Rooted American Tradition Safe

The settlement in the Fox News-Dominion Voting Systems case represents a staggering financial sum — likely the largest monetary payout ever in a defamation case against a major news outlet. In addition, the judge offered a sharp rebuke of Fox News in pretrial rulings for what he said were the wild, false claims it aired about Dominion and its voting machines after the 2020 election.

By the time the trial was set to begin on Tuesday, the only question remaining about whether Fox was liable was if it had broadcast those claims with “actual malice” — that is, whether it knew the statements were false when it made them, or acted with reckless disregard for their falsity.

Many people are understandably frustrated by the lack of a formal retraction, but critically for our legal system, the settlement underscores that the actual malice standard still works, in spite of recent arguments to weaken it. As illustrated by the Dominion litigation, potentially meritorious suits proceed through discovery to trial, while those that can’t sufficiently make a case for actual malice by the defendants typically get dismissed by a judge.

The settlement also avoids the risk to American democracy posed by Fox News’s wrongheaded argument for a supersized version of actual malice — though the network still faces a similar lawsuit from the election technology company Smartmatic and has already suggested it will wield a similar defense.

The actual malice standard creates breathing room for public debate by protecting accidental misstatements about powerful people while still allowing for liability for intentional lies. In defamation lawsuits, the plaintiffs must show that the defendants published false and defamatory statements of fact about them that caused them harm. But public officials and public figures, whom we expect to tolerate sharp public criticism, must also show in a defamation case that the speaker didn’t just inadvertently misspeak, but intentionally published falsehoods.

From the start of the Dominion lawsuit, Fox News had pressed an argument that would have created a form of actual malice on steroids, preventing accountability altogether. Fox News argued that many (or all) of its broadcasts were protected by the First Amendment because “the people have a right to know what their elected officials are saying even if — perhaps especially if — their government officials are lying.” The trial judge twice rejected that argument; recent reporting suggests that Fox’s lawyers were considering bringing it to the Supreme Court, which they believed would be receptive.

Carefully calibrated doctrines protect neutral reporting and require courts to examine whether an outlet goes beyond reporting to endorsing falsehoods. Extending the type of doctrines that Fox News invoked to the facts in this case could have enabled a pernicious form of propaganda. The evidence made public suggests that after the 2020 election, Fox News hosts invited President Donald Trump’s aides on air night after night knowing they would make absurd claims and often endorsing those falsehoods — and they did so even though Fox News and its hosts in many cases believed the claims to be false and were aware of concrete evidence contradicting them.

Any decision on appeal that the First Amendment protects this conduct could have been dangerous, allowing high-ranking officials to flood public airwaves with intentional or reckless lies through powerful allies in the media that could not be held accountable.

There has actually been a movement to revisit the actual malice standard but in favor of narrowing it — or even eliminating it altogether — rather than expanding it. Proponents of this view include Mr. Trump, the likely presidential hopeful Ron DeSantis and the Supreme Court justices Clarence Thomas and Neil Gorsuch. At Mr. DeSantis’s urging, the Florida Legislature is considering a pair of bills that would directly challenge the standard as well as eliminate some protections for journalists in Florida.

These critics argue that the actual malice standard is a recent judicial invention that primarily protects left-leaning outlets. They are wrong: While the Supreme Court rightly held that the First Amendment requires the standard in its 1964 New York Times v. Sullivan decision, it is actually grounded in a much older, distinctly American tradition.

In the United States, there is a deep historic connection between actual malice and our democracy’s anti-monarchist roots. Before the ratification of the Constitution, British libel law was, as the legal scholar Akhil Reed Amar writes, “all about protecting His Majesty” from criticism and “the product of a residually monarchial, aristocratic and deeply deferential legal and social order.” Not even the truth was a defense against libel claims. Colonial Americans began to chafe at this regime well before the Revolutionary War. Most notably, in the 1730s, two Colonial New York grand juries and a petit jury refused to indict or convict an independent publisher for criticizing a Crown authority.

Early after the founding, standards strikingly similar to our contemporary actual malice standard began to emerge, as the media lawyer Matthew Schafer has explained. In 1804, Alexander Hamilton argued and a judge accepted that libel “is a defamatory publication, made with a malicious intent” and that American press freedoms convey the right to publish the truth, “with good motives, and for justifiable ends,” about government officials. Other courts embraced similar formulations at the start of the 19th century. In the early 20th century — and well before the Supreme Court’s decision in Sullivan — state courts around the country effectively adopted the actual malice standard for public officials and candidates for office.

Actual malice allows Americans to speak truth to power, in ways that are not possible in countries with less robust free-speech protections. It explains why some books critical of President Vladimir Putin of Russia or naming financiers of terrorism have been published in the United States and not in Britain. And it’s why judges in democracies around the world have cited Sullivan.

Without actual malice, activists and journalists could face financial repercussions for publicly criticizing government officials, whether local or federal, and they would have to think twice before doing so. That’s why people across the political spectrum oppose efforts to undermine the actual malice standard. The owner of a conservative Florida talk radio station recently said the Florida bills weakening the standard would be the “death of conservative talk” there. And Bill Barr, an attorney general under Mr. Trump, warned that conservatives would be foolish to weaken the actual malice standard, which protects conservative media outlets from, as he perceives it, “left-wing plaintiffs’ lawyers.”

In the Dominion lawsuit, the actual malice standard worked, allowing what appeared to be a meritorious case through to discovery and, had the case not settled, trial. To make its argument, Dominion was entitled to see and make public mountains of evidence suggesting that, beyond just publishing false claims, Fox News knew the sources for its claims about Dominion were unreliable, disregarded internal and external fact checks and continued to publish claims of fraud in a desperate attempt to keep viewers from flocking to other networks.

Lawyers like to say that bad facts make bad law — that egregious, outlier cases tend to force changes in the law that won’t be right in a majority of circumstances. But for all the ways in which the Dominion case is an outlier, the good news is that the settlement undercuts the misguided argument that actual malice works like a “get out of jail free” card, allowing the press to spread lies without consequence.

Dominion v. Fox News could be the rare case where bad facts will help us keep good law.

John Langford and Rachel Goodman are lawyers and Rebecca Lullo is an impact associate at Protect Democracy.

Source photograph by Chip Somodevilla/Getty Images.

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