‘Incredibly damning:’ Fox News documents stun some legal experts
The disclosure of behind-the-scenes emails and texts greatly increased the chances that Dominion will win its $1.6 billion defamation lawsuit against Fox, experts say.
Dominion said the emails and texts show that Fox’s hosts and executives knew the claims being peddled by then-president Donald Trump’s lawyers Rudy Giuliani and Sydney Powell weren’t true — some employees privately described them as “ludicrous” and “mind blowingly nuts”— but Fox kept airing them to keep its audience from changing channels.
If so, the messages could amount to powerful body of evidence against Fox, according to First Amendment experts, because they meet a critical and difficult-to-meet standard in such cases.
“You just don’t often get smoking-gun evidence of a news organization saying internally, ‘We know this is patently false, but let’s forge ahead with it,’” said RonNell Andersen Jones, a University of Utah professor who specializes in media law.
Under New York Times v. Sullivan, a 1964 Supreme Court ruling that has guided libel and defamation claims for nearly 60 years, a plaintiff like Dominion must show that a defendant like Fox published false statements with “actual malice” — meaning that it was done “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Based on the messages revealed last week, “I think that Dominion both will and should prevail,” said Laurence Tribe, a former Harvard law professor. “If anything, the landmark this case is likely to establish will help show that New York Times v. Sullivan” is not an impossible legal hurdle to clear, as some critics have claimed.
'While it’s true that the Supreme Court [in Sullivan] has set a high bar for plaintiffs, a high bar doesn’t mean no bar,” said Sonja R. West, a First Amendment scholar at the University of Georgia law school “What we’re seeing in this case looks an awful lot like the exception that proves the rule. The First Amendment often protects speakers who make innocent or even negligent mistakes, but this does not mean they can knowingly tell lies that damage the reputation of others.”
In fact, Fox has cited the ruling in its defense, arguing that its reporting and commentary on Dominion were legitimate newsgathering activities that Sullivan was designed to protect.
Fox said in a statement that Dominion has used “cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law,” In the network’s own brief seeking summary judgment, Fox’s lawyers argued: “It is plain as day that any reasonable viewer would understand that Fox News was covering and commenting on allegations about Dominion, not reporting that the allegations were true.”
Fox’s attempt to defend itself with Sullivan notably clashes with efforts by some prominent conservatives to undo the ruling. Trump has said numerous times it should be easier for people to claim libel against the news media. Florida Gov. Ron DeSantis (R) has backed state legislation to do just that. Supreme Court justices Clarence Thomas and Neil M. Gorsuch have also suggested the Sullivan standard should be revisited.
The “actual malice” standard makes it hard to win defamation lawsuits because of the difficulty in demonstrating a reporter or publisher‘s state of mind before publication. It places the burden on the plaintiff to prove that the reporter was not simply just wrong, but knew it and proceeded regardless.
Dominion’s lawsuit against Fox has already progressed further than many defamation suits, said Charles Harder, an attorney who has represented Trump and his wife Melania in libel cases. He said judges often dismiss such suits before the start of discovery — the process of collecting of internal documents by the plaintiff that resulted in Fox texts and emails being made public last week. Dominion’s representatives spent months obtaining the emails and text messages and conducting depositions with the Fox hosts and executives who were cited in the brief disclosed last week.
“The key here is that Dominion was allowed to take discovery and obtain the internal communications at Fox,” said Harder, who also represented professional wrestler Hulk Hogan in an invasion-of-privacy action that resulted in a $140 million verdict against Gawker Media in 2016. “Too many plaintiffs, likely with meritorious cases, have their cases dismissed early and are denied the opportunity to obtain evidence to prove their claims.”
Unless Fox can persuade Delaware Superior Court Judge Eric M. Davis to dismiss the case or strikes a settlement agreement with Dominion, it will probably have to face a jury. That could prove perilous, said Harder.
“In my experience, juries have no sympathy for media companies that knowingly cause harm to others,” he said.
Last year a jury in Connecticut in October ordered Alex Jones to pay $965 million to the families of children killed in the Sandy Hook massacre, whom he had repeatedly lied about on his shows. Amid a jury trial in 2017, Disney-owned ABC News paid a beef producer more than $177 million to settle allegations that it had slandered the company by describing one of its meat products as “pink slime” on-air.
Fox has questioned Dominion’s claim to $1.6 billion in damages, arguing that the figure is many times greater than Dominion’s net worth. “The record confirms that Dominion has not suffered any economic harm at all,” Fox wrote in a brief. “Its financials are better than ever.”
Yet some legal scholars are stunned by the behind-the-scenes statements collected by Dominion, and how blatantly Fox’s insiders expressed doubts about what their company was putting on the air.
“Those of us who study these sorts of defamation claims against the media are much more accustomed to cases that have a variety of pieces of circumstantial evidence of reckless disregard for the truth,” Andersen Jones said. “This filing is different.”
She noted that the internal messages show key figures at Fox casting aspersions on Fox’s own decisions. They also show an unusually clear timeline and motivation, she said, noting that Fox continued to broadcast allegedly defamatory statements even after Dominion had alerted the network that the claims were false. There’s also evidence that Fox executives decided to keep broadcasting the false statements because they feared losing viewers if they didn’t.
“We just don’t have examples of major media cases with this kind of evidentiary record,” she said.
West put it even more starkly.
The messages, she said, are “incredibly damning.”
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