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Fox News stands in legal peril. It says defamation loss would harm all media

Posters bearing the images of Bret Baier, Martha MacCallum, Tucker Carlson, Laura Ingraham, and Sean Hannity, from left, adorn the front of Fox Corp.'s headquarters in New York City. The stars' panic as viewers fled after the 2020 elections has become a core element of a $1.6 billion defamation suit against Fox.
Drew Angerer
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Posters bearing the images of Bret Baier, Martha MacCallum, Tucker Carlson, Laura Ingraham, and Sean Hannity, from left, adorn the front of Fox Corp.'s headquarters in New York City. The stars' panic as viewers fled after the 2020 elections has become a core element of a $1.6 billion defamation suit against Fox.

Outside legal observers say the Fox News Channel finds itself in real legal jeopardy in a $1.6 billion defamation lawsuit brought by an election tech company over lies broadcast about the 2020 presidential race.

The amount and weight of evidence is perhaps without equal among other major, recent defamation cases.

"How often do you get 'smoking gun' emails that show, first, that persons responsible for the editorial content knew that the accusation was false, and also convincing emails that show the reason Fox reported this was for its own mercenary interests?" says Rutgers University law professor Ronald Chen, an authority on constitutional and media law.

Fox News has endured one humiliation after another from the rolling revelations in the case brought by Dominion Voting Systems. Private communications made public in legal filings demonstrate the network's producers, stars and executives — even controlling owner Rupert Murdoch — knew the claims they were broadcasting were false, and at times unhinged. A trial in the case is slated for next month.

Fox attorney: "We don't suppress the speech that we don't think is right"

Fox's legal team is grounding much of its defense in a claim that it was merely reporting allegations by the most newsworthy public official of all, then-President Donald Trump.

"We err on the side of speech because the more and more speech you have, the better chance of having people actually getting the opportunity to point out what's right and what's wrong," attorney Erin Murphy, one of the senior figures on Fox's defense team, tells NPR in an interview. "And that's why we don't suppress the speech that we don't think is right."

A loss for Fox would make it harder for all journalists to serve the public, she says.

"At the end of the day, it's going to hinder the ultimate objective of the First Amendment, of getting to the truth," Murphy argues.

The case may serve as a test for the elasticity of that argument.

Dominion alleges great reputational harm from false accusations

Fox News was the first major television outlet to project that then-Democratic nominee Joe Biden would win Arizona on election night 2020, which all but put victory out of Trump's reach. Dominion has alleged that Fox embraced the conspiracy theories about election fraud to try to make up for angering millions of pro-Trump viewers with the Arizona call. Many peeled away to other right-wing outlets.

In the ensuing weeks, Fox repeatedly invited Trump ally and attorney Sidney Powell on its programs to allege Dominion's voting systems had switched votes from Trump to Biden. Yet Fox hosts and executives privately dismissed her as unreliable and unhinged. Powell had shared with hosts Lou Dobbs and Maria Bartiromo a memo to justify her allegations. Even the memo's author called the claims "pretty wackadoodle."

Top executives, including Murdoch and Fox News CEO Suzanne Scott, told one another they could not bluntly confront their viewers with the facts because that could alienate them further.

Dominion says the baseless claims of fraud have destroyed its reputation for electoral integrity with much of the voting public.

"To simply say Fox is a bunch of liars ... is a slippery slope"

Even with that record, set out with voluminous documentation, some media lawyers say Fox's attorneys may be right in predicting that a loss would constrict the media's freedoms.

"No matter how much I might personally deplore what Fox is alleged to have done, I worry a lot more about the longer term-ramifications," says University of Minnesota media law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press.

"To simply say Fox is a bunch of liars — that they shouldn't be allowed to get away with this and their wild speculations should not be reported and should not be protected — I just think that that is a slippery slope," says Kirtley.

Were Fox to lose, "there would be a scramble by other news organizations to distance themselves from Fox's techniques and Fox's editorial decisions," Kirtley says. "But the problem is that by lifting the veil on the editorial decision-making process, we are now going to see all news organizations called into question going forward." She says she believes such a verdict finding Fox liable for defamation would encourage more such cases.

Dominion's legal team shared a statement stating that the voting tech company believes in the First Amendment and its protections, but that Fox crossed a line after the 2020 election: "As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies."

It's hard for plaintiffs to win defamation suits but that could change

Media outlets rarely lose defamation cases in court. Under a 1964 U.S. Supreme Court decision involving the New York Times, plaintiffs have to prove the claims made about them were false and damaging to their reputation. Additionally, they have to prove that those making the statements in question either knew the assertions were untrue or had good reason to know they were untrue, and willfully ignored that information. That's known as "actual malice," under the late Justice William Brennan's decision.

Brennan also argued Americans should have latitude to get some things wrong in talking about public officials and politics, in order to ensure free and robust debate.

Two current Supreme Court justices, Neil Gorsuch and Clarence Thomas, have indicated they would be open to making it easier for plaintiffs to prevail in defamation suits. A third, Elena Kagan, published her own musings years before she joined the court that the protections for the press might be too strong.

The idea of "actual malice," Murphy says, requires Dominion to prove specific people directly involved with the broadcasts knew the statements they aired were wrong. For instance, Murdoch's sworn statements that he had dismissed the claims of election fraud as bogus, and affirmed under oath that some of his star hosts had nonetheless endorsed them publicly, carries no legal weight, she says.

"Anybody would have to acknowledge that what the president and his lawyers were doing was newsworthy in and of itself, regardless of whether the allegations were ultimately going to be anything they could prove," Murphy says. She invoked what journalists consider the safe ground of "neutral reporting" — just telling their audiences what others are saying.

Law professor: The financial motives to present lies "probably destroy" Fox's defense

In its legal briefs, Fox leans heavily on the idea that news organizations must be allowed to convey allegations by major public figures to their audiences — even wild allegations. Rutgers' Chen says that doesn't hold up if Fox was motivated by profit instead of the newsworthiness of the claims being presented in its programs.

"The fact that there was arguably a motive by Fox to publish these accusations against Dominion based on its own economic interests in retaining Trump viewers would, if believed by the jury, probably destroy that argument," Chen says.

He's not the only legal scholar skeptical of Fox's argument that a loss would ripple through journalism.

"Even if Dominion makes their case and convinces a jury to shovel truckloads of Fox's money to [the election tech company], nothing in this case presents a meaningful threat to the First Amendment," says Charles Glasser, who was global media counsel for Bloomberg News for 14 years and now teaches journalism and media law at New York University. "It really comes down to the facts about how the story was crafted and disseminated."

In his sworn responses to questioning from Dominion attorney Justin Nelson, Fox Corp. boss Murdoch acknowledged that four of his star hosts — Dobbs, Bartiromo, Jeanine Pirro and Sean Hannity — had endorsed the baseless claims of election fraud, at least "a bit" in the case of Hannity. He referred to them as commentators. Opinions have even more latitude under case law than straight-ahead reporting. (Dobbs left his post at Fox Business Network a day after a second election tech company, Smartmatic, filed its own $2.7 billion defamation suit against Fox. That case is not as far along as Dominion's.)

Yet Fox News anchors Bret Baier and Martha MacCallum also were deeply concerned about the loss of viewers and deliberated about how to win them back, evidence uncovered by Dominion's attorneys and separate reporting by the New York Times' Peter Baker show.

Legendary media lawyer sees Fox News case as "bizarre" exception to the norm

When news outlets do lose defamation cases, they often result in retractions or apologies and settlements while they're still on appeal. The two most prominent defamation cases of recent years resulted in divergent outcomes.

In 2017, Rolling Stone magazine settled separate cases filed by a University of Virginia dean and a campus fraternity after a collapse of standards in reporting on what turned out to be a source's fabricated account of campus rape.

A year ago, the New York Times prevailed against former Alaska Gov. Sarah Palin after an editorial wrongly linked her advertisements from her political action committee to a mass shooting months later.

"Generally speaking, it is not a good idea to permit a wholesale inquiry into newsroom decisions as a whole, and also I include ownership as part of that inquiry," James Goodale, the legendary New York Times general counsel who advised the paper to publish the Pentagon Papers, tells NPR in an email. "Newsroom decisions, including ownership decisions as to news judgment, should be protected by the First Amendment."

Libel and defamation cases override such protections, he notes.

"The Dominion case is such a strange case it provides an exception to the general rule," Goodale says. "Let us hope we don't see such a bizarre case as this one again."

Copyright 2023 NPR. To see more, visit https://www.npr.org.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.