(New York) An unlikely collision of ideas is brewing between Fox News and Republican presidential hopefuls over journalists’ rights.
In defending itself in a defamation lawsuit over how it covered up false allegations surrounding the 2020 presidential election, the network is relying on a nearly 60-year-old Supreme Court decision that makes it more difficult to prosecute media organizations.
Former President Donald Trump and Florida Governor Ron DeSantis, two favorites of many Fox News viewers, have pleaded for the court to review the case, which is considered a fundamental milestone in US defamation law.
“It’s ironic that Fox is leaning on a landmark case that was designed to help the media act as a watchdog in a democracy and is under attack from Governor DeSantis, Donald Trump and other figures who don’t ‘have not spared their attacks on journalists,’ said Jane Hall, professor of communications at American University.
Explosive evidence has emerged from court filings in recent weeks, exposing a rift between what Fox was telling its viewers about the false claims of voter fraud and what hosts and executives were saying about them behind the scenes.
“Sydney Powell is lying,” Fox News host Tucker Carlson said in a text message to a producer, referring to a lawyer defending Donald Trump’s claims.
“Really crazy stuff. And damaging,” Fox Chairman Rupert Murdoch wrote in an email about a press conference by Mr.me Powell and former New York Mayor Rudy Giuliani, another lawyer who defended Mr. Trump
Aside from revelations about Fox’s inner workings, the result could have broad implications for media organizations because of how they and the courts have come to rely on the libel law that Fox uses as a shield.
In its $1.6 billion lawsuit, voting machine maker Dominion Voting Systems claims Fox repeatedly aired allegations that the company helped rig the general election against Donald Trump, while many members of the media organization privately believed the claims were false.
Fox says the law allows it to broadcast such allegations if they are newsworthy.
An important precedent
In a 1964 decision on a case involving the New York Times, the United States Supreme Court has significantly limited the ability of public officials to sue for defamation. She ruled that news outlets are protected from a libel judgment unless it can be proven that they published with “actual malice” – knowing something was untrue or acting with “reckless disregard”. as to whether it was true or not.
In one example of how the law was applied, the drafters of the Times admitted last year that an editorial mistakenly linked former Republican vice-presidential candidate Sarah Palin’s rhetoric to a mass shooting in Arizona. Mme Palin lost her libel suit because she couldn’t prove the newspaper erred without caring about the truth.
Some free speech advocates worry that the Dominion-Fox lawsuit could ultimately give a conservative Supreme Court a chance to revisit the standard set in the case, known as New York Times Co. v. Sullivan. Although the case was one of the court’s most enduring precedents, the newly empowered Tory Majority has signaled its willingness to challenge what had been deemed established law – as it did last year in revoking the right to abortion.
Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have publicly expressed interest in reviewing the precedent.
“My wish is for the parties to work things out and for this matter to go away,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota.
“I don’t see anything good coming out of it. »
The bar is high for proving defamation — and it’s deliberate, attorney Lee Levine said. Dominion must show that a reasonable audience could conclude that someone at Fox was making those allegations, not just the interview subjects, he said.
But still, according to Mr. Levine, Dominion has the strongest defamation record he has seen in 40 years of involvement in the matter.