Chip Minemyer: When reputations, politics, media rights collide

Mar. 31—The concept of defamation is in the spotlight, with important election- related cases playing out in national and local courtrooms.

Dominion Voting Systems sued Fox News over its reporting relative to the 2020 presidential election — claiming the network allowed supporters of Republican Donald Trump to make statements Fox officials knew to be false.

Fox lawyers say the network was simply reporting on newsworthy allegations — including that Dominion was created for the purpose of rigging a Venezuela election in favor of Hugo Chavez, and then did the same for Democrat Joe Biden in the U.S.

If the case goes to trial this month as scheduled, the outcome could impact a 60-year-old standard for libel and the media. Now, court precedent says media companies must be guilty of "actual malice" — the conscious decision to print false information in a bid to damage someone's reputation, or acting with "reckless disregard" for the truth.

"A ruling against Fox would be a major blow to media freedoms generally, subjecting news outlets to the prospect of outsize liability whenever they report on newsworthy allegations that turn out to be false," William Barr, U.S. Attorney General in the Trump administration, wrote in an op-ed piece published in the Wall Street Journal.

Barr argued that "a ruling against Fox would severely weaken the First Amendment protection that all news media enjoy."

Public officials and public figures must show that "actual malice" has occurred to win judgments against media organizations or individual journalists. This media protection dates to 1964, and a Supreme Court ruling in the case of New York Times Co. v. Sullivan.

A local case involves two individuals who do not have media protections, but who are public officials or figures suing each other for defamation over comments and images from their 2022 Pennsylvania House election battle.

In Cambria County, Democratic state Rep. Frank Burns and his 2022 challenger, Republican Renee Billow, filed libel lawsuits over allegations made during last year's election.

Billow sued Burns ahead of Election Day last November, claiming he damaged her reputation with campaign messages that said she "scammed" a federal pandemic mortgage relief program, as The Tribune-Democrat's Dave Sutor has reported. Billow also cited images that appeared to show her in a prison mugshot-style photograph, although she had not been arrested.

Last week, Burns counter- sued, accusing Billow, the Friends of Renae Billow and the Cambria County Republican Committee of defamation and false light invasion of privacy.

In her campaign ads, Billow said, "Frank Burns is lying."

In a partial ruling last October, Cambria County Judge Linda Fleming ordered the Burns campaign to remove ads from Facebook but ruled that they could run on TV.

His new lawsuit claims "false light" — defined as "portraying an individual unflatteringly in words or pictures as someone or something that person is not," according to the First Amendment Encyclopedia — over images that suggested Burns owned substandard rental properties.

The parties were back before Fleming in February. The judge is expected to rule soon over whether Billow's lawsuit will go to trial.

In his lawsuit, Burns is also seeking a jury trial, as Sutor reported.

At the national level, attorneys for Fox News are hoping the Dominion lawsuit does not go to trial.

Dominion is seeking $1.6 billion in damages, claiming that the network's reports that included allegations by pro-Trump individuals that Dominion helped rig the 2020 election resulted in "significant financial harm" to the company, as the Associated Press reported.

In a response to Barr's claims that a ruling against Fox would be a blow to all news organizations, Dominion invoked the essence of that 1964 Supreme Court ruling that protects media from many lawsuits:

"As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies."

Court filings made public in recent weeks show divisions between some on-air personnel and Fox executives over false claims being made by guests on the network about the 2020 election — and pressure applied to the network by political forces.

The network has been accused of airing false statements to avoid pushing away Trump-supporting viewers.

"We never reported those to be true," Fox lawyer Erin Murphy said. "All we ever did was provide viewers the true fact that these were allegations that were being made."

Now, Fox News finds itself on the opposite side of the argument from individuals — including Florida Gov. Ronald DeSantis, a potential GOP presidential candidate, and the network's longtime ally, Trump — who have sought to limit protections for journalists in defamation cases.

A ruling could establish a new benchmark for defamation — that truth outranks what Fox News argued is at risk: "The media's absolute need to the cover the news."

Jane Hall, a communications professor at American University, told the Associated Press: "It is ironic that Fox is relying on a landmark case that was designed to help the news media play the watchdog role in a democracy and is under attack by Gov. DeSantis, Donald Trump and other figures who have been untethered in their attacks on journalists as enemies of the people."

Chip Minemyer is the publisher of The Tribune-Democrat and The Times-News of Cumberland, Md. He can be reached at 814-532-5111. Follow him on Twitter @MinemyerChip.