Fox's $787.5 million fake news scandal no reason to make libel a weapon| Expert
Aimee Edmondson is author of "In Sullivan's Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle." She is a professor at E.W. Scripps School of Journalism and director of graduate studies.
Dominion Voting System’s settlement with Fox News slammed the door on two years of anticipation and breathless commentary about the most closely watched libel suit against the media in decades.
Given the record-breaking $787.5 million that Fox agreed to pay for spreading false claims that the 2020 election was rigged, former President Donald J. Trump has taken yet another hit, this time relating to his fantastical assertions that he won the vote.
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The legal fight between Dominion and Fox focused attention on the landmark U.S. Supreme Court ruling in 1964 that established America’s modern standard for libel and protecting free speech and free press: New York Times v. Sullivan.
As author of a book on the Sullivan case, I offer three points of commentary in the wake of Fox’s settlement with Dominion:
Remember history
We shouldn’t erode current safeguards for speech and debate
Fox settled, but it’s not off the hook
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History
Abuse of libel — using it as a weapon against free press and to chill speech — prompted change in the Civil Rights Era. Before Sullivan was decided in 1964, New York Times’ then-Executive Editor Turner Catledge said he “was terrified of this new weapon” southern white supremacists were wielding against the national press.
Scores of libel suits were filed by public officials in Alabama, Mississippi and elsewhere as the civil rights movement was heating up. The libel suit filed by Montgomery, Alabama’s police chief L.B. Sullivan was the first to make it to the nation’s high court, revising libel law and bringing it under the purview of the First Amendment. Sullivan sued because he was angry at the Times for exposing the brutality of his police force against Black activists and civil rights protesters. In the Sullivan case, the Supreme Court vastly expanded legal protections for the press to report on controversial and newsworthy topics without fear of crippling libel suits. Under Sullivan, plaintiffs must prove that any false information reported to the public was done so with “actual malice.” That means journalists reported something knowing it was false or that they acted with “reckless disregard for the truth.” Real journalists don’t do this.
Sullivan protects the press and even opinion commentary, as long as there are no demonstrably false facts asserted into an opinion piece. This legal protection has become more vital than ever in our hyper-partisan environment and this age of alternative facts.
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Thanks to Dominion’s suit, the public learned that celebrity presenters on Fox said via texts and emails that they doubted the veracity of the stolen election conspiracy theories. Yet the cable giant continued to air the false claims for weeks. Fox avoided a tough, embarrassing trial by settling.
Protect Sullivan
Sullivan is vulnerable because some want to make it easier to sue the media.
False reporting by Fox does not mean we should toss well-established protections of free press in Sullivan. The massive settlement by Fox shows that media accountability is viable under the current standard for libel.
Let’s not go backward, to the days when libel was abused. If we do, the adverse effects would harm a wide range of speakers including Christian media, talk radio and small publications with no legal budgets.
Fox fight not over
In the Dominion settlement, it has been reported that Fox is forking over roughly 20 percent of its cash and “cash equivalent” value. But this legal drama is far from over. Other libel cases based on faulty reporting of the 2020 election are still scheduled to go to court.
Dominion has defamation suits pending against Fox competitors Newsmax and OAN, as well as the MyPillow Chief Executive Mike Lindell, Overstock.com founder Patrick Byrne, and two former Trump lawyers who peddled the “Big Lie.”
Fox still faces a $2.7 billion libel suit from another voting machine company, Smartmatic, which says the cable giant “decimated” it with the barrage of false reporting.
Sullivan is still at risk, and it should be protected so real journalists can do their jobs in a democracy still deserving of the name.
Aimee Edmondson is author of "In Sullivan's Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle." She is a professor at E.W. Scripps School of Journalism and director of Graduate Studies.
This article originally appeared on The Columbus Dispatch: Fox's $787.5 million fake news scandal no reason to make libel a weapon| Expert
