The Bigger Question Behind the Fox News Debacle

With the Republican Party and many on the right lost in a "post-truth" era where "alternate facts" - a/k/a lies and untruths - are the stock in trade of Republican elected officials and much of the right wing media, right wing politicians (like Hitler's Nazi regime) would love to silence media outlets that continue to report the truth and expose deliberate right wing lies.   Into this push to silence critics and legitimate news outlets comes the Fox News debacle in the Dominion Voting Systems $1.6 billion libel lawsuit where internal emails and text messages show that the leading Fox anchors and talking heads as well as Rupert Murdoch knew full well that Donald Trump's claim theat the 2020 election was "stolen" were simply untrue.  Yet, rather than face the wrath of the MAGA base and the potential of lost viewers and falling ratings, these same individuals were under orders to disseminate Trump's lies with no regard for the harm the lies did to companies like Dominion or political stability in the nation.  Money and pleasing the viewership base, ultimately were all that mattered.  The case has put renewed focus on the Supreme Court ruling in New York Times v. Sullivan which made it more difficult for politicians in particular to use the threat of litigaion as means to silence critics.  A piece in Politico looks at the case and why right wing efforts to silence legitimate media outlets (which, of course, excludes Fox News) is dangerous for democracy.  Here are highlights:

As Oscar Wilde might have put it, it would take a heart of stone not to enjoy the massive facepalm that should be today’s semi-official Fox News emoji.

Thanks to a flood of texts and emails that became public last week, we learned that key members of the Fox News team — from owner Rupert Murdoch on down — knew that former President Donald Trump’s “rigged election” assertions about the 2020 race were flatly false, but that saying so was driving away viewers, with potentially disastrous results. (“The stock price is down,” Tucker Carlson wailed.) To protect its turf, one executive warned, it was critical to “respect our audience” — which meant giving voice to the conspiracy theories and, with rare exceptions, letting those theories go unchallenged.

Beyond the schadenfreude lies a significant legal issue, and one that reaches beyond Fox News. The revelations suggest that Fox is highly vulnerable to a defamation verdict in the $1.6 billion case brought by Dominion Voting Systems, whose machines were at the heart of the most bizarre election lunacies.

What the filings revealed was the equivalent of a courtroom confession, where the defendants in effect said: “Yes, we knew what we were airing was false, but we let the falsehoods air to keep our viewers happy.”

Why does this matter? Because — barring a powerful rebuttal from Fox — it means that Dominion has met a very high bar in defamation law. Because it’s in the public arena, Dominion has to prove that Fox knew they were airing lies, or “recklessly disregarded” the truth or falsehood of their reports.

It’s tempting to celebrate a verdict against Fox; “reckless disregard” might as well be its slogan. But a blow to the loudest media voice on the right would come at a time, ironically, when other conservatives have launched a fundamental attack on the free press that hits directly on the issue of defamation. At risk is a 58-year-old Supreme Court case that is a powerful protection of First Amendment rights: New York Times v. Sullivan.

The case, Justice William Brennan wrote, had to be framed in the context of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

To protect that principle, the court set down a new standard: When it comes to public officials, they had to prove not just that a statement was false and injurious, but that it was made with “actual malice” — an inartful term that meant not “ill will,” but that it was published with willful knowledge that it was false or with “reckless disregard.”

In recent years, New York Times v. Sullivan has gotten new scrutiny by powerful conservatives. In 2019, Supreme Court Justice Clarence Thomas argued for a reassessment, amid consideration of a libel lawsuit from a woman who accused Bill Cosby of sexual assault. In 2021, Justice Neil Gorsuch pointed to the radical change in the media landscape as a reason to reconsider the law . . . .

The call for weakening New York Times v. Sullivan is also emanating from conservatives in the more explicitly political arena. Trump, no stranger to litigation on both sides of the defamation issue, has argued for its overturn. It’s also now part of Florida Gov. Ron DeSantis’ nascent presidential campaign. In a roundtable discussion earlier this month, DeSantis said the ruling served as a shield to protect publications that “smear” officials and candidates. Indeed, the governor has gone further. A bill he proposed that has now been refiled in the Florida legislature would leave the press wide open to lawsuits, including by stating that comments made by anonymous sources would be presumed false in defamation suits.

In other words, if Woodward and Bernstein did not identify “Deep Throat,” or their countless other anonymous sources in Watergate reporting, their stories would have been presumed false under this bill. It would make the effective end of whistleblowers as a tool of investigative reporting.

None of this is to say that Fox News should escape judgment if its defense team cannot rebut the damaging evidence that is now on the record. But it doesn’t eliminate the need for great caution about the protection the Supreme Court gave the press nearly 60 years ago. In New York Times v. Sullivan, the court took away from public figures the power to bankrupt or intimidate their critics with a storm of litigation. We cannot put that power back in the hands of the powerful again.