First Amendment history hurts Fox News

Update: A settlement has been announced in Dominion Voting Systems' lawsuit against Fox News.

If no settlement can be reached in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News, the ensuing trial will prove to be one of the most important in the history of First Amendment law. On Sunday, the start of the trial was delayed by 24 hours, and reports of a possible settlement spread. 

Defamation cases are notoriously difficult to win against media outlets because the plaintiffs must prove both that a claim was false and that it was made with "actual malice" — that is, either "with knowledge that it was false or with reckless disregard of whether it was false or not." In this case, a number of factors favor Dominion. First, because Fox News' claims that Dominion had rigged the 2020 election against then-President Donald Trump were false, as with the other tenets of the Big Lie, Davis ruled that Dominion only needs to prove that Fox News acted with "actual malice." Second, there is a wealth of evidence that the key figures at Fox News knew that their public accusations against Dominion were false, yet made them despite that knowledge to please their audience. Finally, Fox News has already been scolded by the judge for withholding important information about the title of board member Rupert Murdoch.

It is easy, amidst the high drama of a landmark free speech case, to lose sight of how we got where we are. The First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So what does it mean to "abridg[e] the freedom of... the press"? How can courts and policymakers remain faithful to the Constitution while protecting those who may be wronged by a dishonest or corrupt media outlet?

In this case, a number of factors favor Dominion.

Below are some key cases from American history that either have helped shape how that question is answered — or which help illustrate the nuances of First Amendment law.

01

New York Times Co. v. Sullivan (1964)

When Salon reached out to Leonard M. Niehoff, a professor at the University of Michigan Law School who specializes in the First Amendment, he replied that "it's tempting to answer your question not by citing three cases but by suggesting reading Sullivan three times. The decision casts a lot of light on the Dominion case."

Niehoff is alluding to New York Times Co. v. Sullivan, a landmark Supreme Court decision that simultaneously protected America's free press and stopped white supremacists from using frivolous litigation to silence their critics. The case's roots can be traced back to 1960 when The New York Times ran a full-page piece by Dr. Martin Luther King, Jr.'s supporters that criticized the police in Montgomery, Alabama for engaging in racist violence against civil rights protesters. White supremacists often responded to critical newspaper coverage by filing frivolous defamation lawsuits, usually by nitpicking an article's factual errors and suing to intimidate publishers into not running pro-civil rights content.

On this occasion, however, the wealthy right-wingers who lined up to back Montgomery police commissioner L. B. Sullivan's intimidatory litigation found their money was wasted. Despite winning early trials due to pro-Southern audiences that were openly hostile to civil rights — first in an Alabama jury trial, then with the Supreme Court of Alabama — the segregationists were shocked when the Supreme Court unanimously ruled against them in 1964. It found that in order to sustain a defamatory accusation, the plaintiffs must prove that the claim was false and that the individual(s) making it did so with either "actual malice" or recklessly.

"Consider: Sullivan seeks to create room for the media to make good faith mistakes when telling important stories," Niehoff explained. "Is this a case of good faith mistakes? Were these journalists trying to get the story right but getting it wrong for understandable reasons? Or is this a different kind of case altogether?"

Niehoff also noted that, as with Sullivan, the Dominion case is also a microcosm of where America is at this point in its history. "Sullivan had its origins in the civil rights movement and recognized the threat that southern officials would weaponize libel cases to resist it," Niehoff wrote to Salon. "Sullivan is a case about a great social struggle and the role of the media in advancing it. The Dominion case has its origins in a lie about an election outcome. It is a case about a great fraud, where the plaintiff claims the media helped perpetuate it. One can appropriately wonder what the Dominion case says about where we've strayed to as a society."

02

Ginzburg v. Goldwater (1970)

This is a situation where, although a court case did not directly set a legal precedent, it set a chill through an entire industry as effectively as if the court had ordered it.

 

Ginzburg v. Goldwater began when 1964 Republican presidential nominee sued Fact magazine for running an article surveying psychiatrists and concluding that he was mentally unfit for the presidency. A jury ultimately agreed with Goldwater that Fact had defamed him by claiming that it had proved he was psychologically incapable of being president, and the American Psychiatric Association (APA) went one step further: It issued the so-called "Goldwater Rule," which prohibits psychiatrists from publicly diagnosing public officials unless they have also personally treated them. Some experts argue this was unjust both to psychiatrists and to the American public that needs their insights.

 

"A psychiatrically-impaired POTUS is capable of doing so much harm," Dr. David Reiss, a psychiatrist and expert in mental fitness evaluations who along with Lee contributed to the book "The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President," told Salon. "In my opinion, it is irresponsible for mental health professionals not to inform the public and initiate discussion regarding concerns based upon objective facts (not speculation)."

03

New York Times Co. v. United States (1971)

When former US military analyst Daniel Ellsberg published The Pentagon Papers in 1971, he blew the lid off of the American government's longstanding policy of dissimulating with the public about the Vietnam War. Yet the act of publishing a classified government report that revealed American errors in warmaking also, not surprisingly, upset the United States government. In this Supreme Court case, the bench had to rule whether freedom of the press included the ability to publish information that the government insisted must be kept secret.

 

In his concurring opinion, Justice Hugo Black laid out the reasons why the courts must err on the side of allowing the press to criticize the state:

 

"The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government," Black explained. "The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

04

Gertz v. Robert Welch, Inc (1974)

"The decision is a bit of a libel buffet, offering up lots of principles that are somewhat disconnected from each other," Niehoff told Salon about the Gertz decision. "But it seems to me possible that the case's approach to damages and other issues could prove important [to Dominion]."

The story behind Gertz begins in 1968, when a lawyer named Elmer Gertz decided to represent the family of Ronald Nelson, who had been gunned down by Chicago police officer Richard Nuccio. Because Nuccio was ultimately convicted of second-degree murder, Nelson's family was suing him for damages. The John Birch Society opposed Gertz's advocacy, however, and falsely published that he was actually working for Communist front organizations as part of a conspiracy to destroy America's police force. They also falsely claimed that Gertz had rigged the trial to get Nuccio's conviction and that he himself had a criminal record. Gertz sued American Opinion (the publication which advanced these Bircher ideas) and, although he won a jury verdict and $50,000 award, lost his libel suit because a judge found he had not proved "actual malice." The Supreme Court later affirmed the lower court's ruling. As a result, America does not apply the standard of "strict liability" (holding someone accountable for the consequences of their actions regardless of their intentions) in defamation cases.

05

Harte-Hanks Communs. v. Connaughton (1989)

As the Gertz case helps illustrate, one of the key variables in determining whether defamation occurred is ascertaining the presence or absence of "actual malice." While the courts found that Gertz did not meet that standard, the same was not true for Daniel Connaughton, a candidate for Hamilton, Ohio Municipal Judge in 1983. When it looked like Connaughton was going to win the election because the incumbent's Director of Court Services was arrested on bribery charges, a local newspaper owned by Harte-Hanks Communications that supported the incumbent decided to change that. Soon they ran a front-page story that falsely accused Connaughton of orchestrating the arrest through "dirty tricks." Among other things, it dishonestly stated that Connaughton had offered a member of the grand jury bribes in exchange for her assistance with the investigation. Connaughton sued Harte-Hanks and won both in a district court and in a Court of Appeals, as the evidence proved Harte-Hanks had intentionally published something false in order to harm Connaughton's reputation — a clear example of "actual malice."

When Niehoff was asked to list important First Amendment cases, he made a point of singling Connaughton.

"There, the Supreme Court clarified the kinds of evidence that can show the presence of actual malice," Niehoff told Salon. "It turns out that the evidence looks a fair amount like the same sort of evidence a plaintiff would use in a simple negligence case. The actual malice standard provides important protection, but, once you get to trial, it's probably less protection than is generally understood. The case also clarifies how appellate courts should review adverse jury verdicts, which may ultimately be a factor here."

06

Aequitron Medical, Inc. v. CBS, INC. (1997)

When CBS News ran a segment in 1989 about infant heart rate and respiration monitors, they probably didn't imagine that they'd be discussing that news story in court eight years later. Yet the company Aequitron was not happy about the segment, accusing CBS News of making a number of false statements about their company and the tests CBS News had used to determine that they were faulty. As in the Sullivan case, the underlying issue here was whether a number of smaller alleged factual errors in the original CBS News story added up to defamatory. Citing precedent – and, in particular, the need for Aequitron to prove actual malice — the United States Southern District Court of New York ultimately dismissed the case. More than anything else, the decision was based on the fact that many of the story's claims were substantially true and that Aequitron was a public figure open to criticism.

 

"In the present case, it is undisputed that Aequitron is a corporate plaintiff and that CBS is a media defendant," the judge ruled. "The defamatory material is a matter of legitimate public interest, as it affects the health and well-being of babies and is subject to federal regulation. Thus, the actual malice standard applies."

 

07

Texas Beef Group v. Winfrey (1998)

In another case that involved public health questions, Oprah Winfrey was sued by four ranching families and their cattle companies for a 1996 story about mad cow disease. In particular, the families were upset that Winfrey had declared that she would never eat another hamburger, with the companies arguing that beef prices plummeted as a result of her declaration. Yet her program never mentioned Texas or the Amarillo plaintiffs; it instead reported how nearly 10 people in Britain had died from the dangerous virus. Instead the lawsuit was brought to court as a test of a so-called "veggie libel" law in Texas. Starting in the 1990s, nearly a dozen states passed laws rendering it illegal to publicly make false statements about the safety of food, with Texas joining the parade in 1995. According to then-agriculture commissioner Rick Perry at the time, "The economic livelihood of our beef producers is at stake, and I trust agriculture can count on the attorney general's office to enforce the laws of the state of Texas."

 

At the last second, however, the judge presiding over the case decided that the "veggie libel" law could not be applied in this case, forcing the plaintiffs to instead prove defamation under normal criteria instead of merely needing to prove financial losses. This was all that Oprah needed to prevail.