The aftershocks of the 2020 presidential election continue to reverberate politics and the mediabuilding to a crescendo in a high-profile libel lawsuit.
The trial is scheduled to begin the week of April 16, 2023, in the case of US Dominion, Inc v Fox News Network. The lawsuit rests on whether false claims Fox hosts and their guests made about Dominion’s voting machines after President Joe Biden was elected were defamatory. Dominion is suing Fox for $1.6 billion.
Fox News hosts said on air that there were “voting irregularities” with Dominion’s voting machines — while privately saying that such claims were baseless.
The statements have already been proven false. Delaware Supreme Court Justice Eric M. Davis ruled on March 31, 2023that it is “CRYSTALLY clear that none of the statements regarding Dominion about the 2020 election are true.”
The question now is whether the rulings have damaged Dominion’s reputation enough to lead to the level of libel.
I am a longtime journalist and journalism professor which teaches the realities and challenges of defamation laws as they relate to the news industry. Being accused of slander is one of a journalist’s worst nightmares, but it’s much easier to throw around as an accusation than to actually prove guilt.
Slander occurs when someone posts or publicly broadcasts untruths about a person or a company in a way that damages their reputation to the point of damage. When the false statements are written, it is legally considered libel. For example, when the falsehoods are spoken or broadcast in a live TV broadcast, it’s called slander.
To be considered defamation, information or allegations must be presented as fact and disseminated for others to read or see and the person or company must be identified and the information offered in a reckless manner contempt for the truth.
Defamation plaintiffs can be private, ordinary people who must prove that the report was made in negligence in order to win their lawsuit. Public people such as celebrities or politicians have a higher burden of proof, which is summed up as actual malice or overt intent to damage a reputation.
The ultimate defense against libel is the truth, but there are others.
Mind that is non-provable fact is protectedFor example.
Neutral reporting – a legal term that means the media reports honestly, if inaccuratelyabout public figures – can legally protect journalists.
But Davis rejected both arguments in the federal Dominion case.
Davis determined that Fox was broadcasting falsehoods when Trump supporters could claim on air that Dominion had manipulated voting machines to boost President Joe Biden’s vote. He also said that these actions damaged the Dominion’s reputation.
Prove real malice
The key question for the jury will be whether Fox broadcasters knew the statements were false when they aired them. If they did, it would mean they acted with actual malice, the standard required to make a case of defamation for a public person, entity or figure.
The U.S. Supreme Court established actual malice as a legal criterion for libel in 1964 when LB Sullivan, an Alabama police commissioner, found his reputation damaged by a civil rights ad in The New York Times that contained a number of inaccuracies. Sullivan sued and was awarded $500,000 by a jury. The state Supreme Court upheld the decision and the Times appealed.
The US Supreme Court reigned in 1964 that libel evidence required evidence that the ad creator had serious doubts about the veracity of the statement and published it anyway, with the aim of damaging the subject’s reputation.
Simply put, the burden of proof shifted from the accused against the accuser.
And that’s a hurdle most can’t overcome when claiming defamation.
Why proving libel is so hard
It is incredibly difficult to prove in court that someone has caused harm by publishing facts that ultimately turn out to be untrue.
Usually falsehoods in a story are the result of insufficient information at the time of reporting.
Sometimes an article’s inaccuracies are the result of poor reporting. Other times, the errors are the result of actual negligence.
This happened when Rolling Stone magazine published an article in 2014 about the gang rape from a student at the University of Virginia. It turned out that many parts of the story were not true and not well vetted by the magazine.
Nicole Eramo, the former fellow dean of students at the University of Virginia, sued Rolling Stone, claiming the story was false and claiming she knew about and covered up a gang rape at a fraternity on campus. She reached a settlement about the 2017 lawsuit.
Doesn’t meet the malice standard
There are also some recent examples of a defamation lawsuit that falls short of the actual malice standard.
This includes Alaskan politician Sarah Palin, who sued The New York Times about the publication of an editorial in 2017 that falsely claimed that her political rhetoric had led to a mass shooting. The jury said the information may have been inaccurate, but it failed to prove actual malice.
Long before he became president, Donald Trump had dismissed a 2011 libel suit after a New Jersey appeals court said so there was no evidence one book author showed real malice when he cited three unnamed sources who estimated that Trump was a millionaire, not a billionaire.
It is so difficult for public figures to meet the actual malice and defamation standard to prove that most defamation defendants spend most of their legal prep time proving they are not actually in the public eye. According to the court, their reputation is not as fragile as that of a private individual.
Private individuals must only prove negligence to be successful in a libel lawsuit. That means that someone has not seriously tried to check whether a statement was true or not before publishing it.
Slander cases that continued
However, some public figures have prevailed in proving libel.
American actress Carol Burnett won the very first defamation suit against the National Inquirer when a jury ruled that a 1976 gossip column describing her as intoxicated during an encounter in a restaurant with former Secretary of State Henry A. Kissinger was known to be false when it was published.
Recently, Cardi B won a libel lawsuit against a celebrity news blogger who posted videos depicting the Grammy-winning rapper used cocainehad herpes and participated in prostitution.
The Dominion case
Whether Dominion can prove actual malice is for the jury to decide, but Fox experts helped the prosecution’s case by acknowledging that they knew the information was false before they aired it and left a copious trail of comments such as : “this dominion stuff is total bs.”
Fox’s position is that despite knowing that guests’ claims about Dominion were false, the claims were newsworthy.
Does this qualify as actual malice or just bad journalism?
The decision could send vibrations through the political media landscape for years to come.