Attorney Joseph D. Steinfield lives in Keene and Jaffrey. He can be reached at joe@joesteinfield.com.
In 1964, the Supreme Court decided New York Times v. Sullivan. Before that decision, American defamation law, meaning libel and slander, followed the common law. If someone “published” a false statement likely to damage an identifiable person’s reputation, then with hardly any exceptions the only question for the jury was “how much do we award?” And the jury’s discretion was extremely broad. No formula exists for measuring harm to reputation in dollars, but juries were entrusted with the exercise of common sense based on their own lived experience.
Justice Brennan’s opinion in the Sullivan case fundamentally changed defamation law by holding that imposing liability without fault runs afoul of the First Amendment. The case involved an Alabama police commissioner, and the Court established the “actual malice” rule for public officials suing for defamation. That term is inapt since the rule has nothing to do with “malice” in the sense of ill will. Rather, it means that the public official must prove that the person (or company) making the defamatory statement knew the statement was false or acted with “reckless disregard,” of whether it was true or false. Not “should have known” but actually knew.
The principle underlying the Sullivan ruling is that public officials make up our government, and we should feel free to criticize government without fear of costly litigation, and hefty damage awards resulting from innocent mistakes. In the following years, the Court extended the actual malice rule to so-called “public figures” and ruled, further, that even the private individual has to show some degree of fault, as each state may determine, in most states negligence, meaning not being careful.
In recent years, there have been rumblings about Sullivan’s actual malice rule, especially from Justice Thomas and, more recently, from Justice Gorsuch. Right now, however, they are overshadowed by concerns with Section 230, the federal law that protects internet platforms such as Twitter, Facebook, Google, and all the others. Based on comments from several justices during two recent hearings, it doesn’t look like the Court will rule against the internet service providers, not because they are enamored of Section 230 but because fixing it is better done by Congress than by the Court.
In a lawsuit now pending in Delaware state court, the Sullivan case and its evidentiary requirements are playing out in real-time. In U.S. Dominion v. Fox News, the claim is that Fox knowingly broadcast false statements charging Dominion with making and selling voting machine systems that rigged the 2020 presidential election. Such statements were made or promoted on Fox by lawyers Sidney Powell and Rudy Giuliani, and by Fox newscasters Lou Dobbs, Sean Hannity, Maria Bartiromo, and others.
At the outset, Fox asked the court to dismiss the case on the grounds that it was truthfully reporting what other people were saying. If it had Section 230 at its back, Fox might have a point, at least when it comes to online “guests” like Powell and Giuliani. But Fox is not an internet platform serving as a virtual bulletin board. Like a newspaper, it owns what it says. On December 16, 2021, the judge denied the motion.
That ruling meant that the parties could proceed with discovery, and over the last year they exchanged documents and took depositions. Fox then filed a motion for summary judgment, which differs from a motion to dismiss because, with the documents and deposition testimony at hand, Fox contends that Dominion cannot show “actual malice” by “clear and convincing evidence,” which is the burden of proof in public figure cases. (Dominion’s brief in opposition appears to acknowledge its public figure status.)
Filing this type of motion is common in defamation cases. Defamation defendants, particularly media entities, want nothing less than to proceed to the next stage, a jury trial.
Discovery is ordinarily done in private, but once it gets filed in court as part of the summary judgment process, it becomes open to the public. So, we now know what Fox people were emailing and texting during the relevant time frame. Tucker Carlson called the charges against Dominion “ludicrous” and “off the rails.” He wrote to Fox prime-time host Laura Ingraham, “Sidney Powell is lying … I caught her.” A network VP used the words “mind blowingly nuts,” while Sean Hannity referred to the accusers as “F’ing lunatics.”
But at the same time, when a Fox reporter challenged a false report about Dominion, Carlson urged Hannity to “get her fired” because such comments would hurt the company’s stock price and lose the trust of loyal viewers. In other words, what goes on offline stays offline, and the news is just another commodity.
The “actual malice” requirement creates a challenge, but it is not an insurmountable barrier. Here, it is extremely unlikely that Fox will win the case on summary judgment, which leaves two possibilities. One is that the parties will settle the case, and the other is that they will face off in court in April.
Dominion is claiming damages of $1.6 billion, so the settlement price would be high. The cost of a jury trial could be even higher, and no doubt Dominion’s lawyers will be well-armed with evidence to support the $1.6 figure.
I hope the case goes to trial. If it does, it will provide a daily civics lesson and a reminder that freedom of the press, while a precious part of the Constitution, is not absolute.