Lying is profitable in media. Lawsuit against Fox News might fix that
Civil Rights champions have their “Brown v. Topeka,” defense lawyers have their “Miranda” and abortion foes have their “Dobbs.” But for a journalist, “Times v. Sullivan” is the gold legal standard, the hill you want to die on in its defense.
“Times v. Sullivan” is the foundation upon which public officials are held accountable. It does a lot of legal-ish things, but in practical terms it prevents bad actors from using the threat of expensive defamation payouts to discourage news outlets from investigating their wrongdoing.
This was the strategy of Southern public officials 60 years ago who were trying to hide their brutality toward Black people from the rest of the nation.
In 1960, the Times printed a full page ad in which a Black coalition asserted, among other things, that “In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.”
Although he was not named in the ad, Montgomery Commissioner L.B. Sullivan sued, saying he and his office had been defamed, and pointing to several minor inaccuracies that dramatized the city’s actions.
The Alabama trial judge took it upon himself to instruct jurors that the statements in the ad were damaging to Sullivan’s reputation, and as such "falsity and malice are presumed." Nor did they need to be “convinced” of malice on the part of those who wrote and published the ad copy to find in favor of Sullivan, which of course they did.
Although the ad copy contained minor factual errors, the Supreme Court overturned the case, noting that “erroneous statement is inevitable in free debate,” and “Criticism of official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes (public) official reputations.”
For a public official to win a libel case, the criticism must not only be false but made with knowledge that it was false, or “reckless disregard of whether it was false or not.”
The far-right movement has telegraphed to the current Supreme Court — which has been prone to taking its marching orders from far-right politicians — that it wants “Times v. Sullivan” overturned. Leading the charge is Florida Gov. Ron DeSantis, who wishes to quash criticism of his hostile takeover of the state education system.
DeSantis wants lesson plans that are consistent with his own political opinions, whether or not those political opinions are consistent with fact. Donald Trump has voiced similar frustrations over First Amendment protections, which prevent him from employing bullying lawsuits against political enemies.
But these attacks on First Amendment case law come at an inconvenient time for Fox News celebrities who, we now know, believed none of the election-denying garbage they were peddling to their listeners.
Their own emails and text messages have come back to haunt them, as they simultaneously dismissed election deniers as “idiots,” while complaining that telling a truth that their viewers didn’t want to hear would damage Fox’s “brand” and hurt its stock price.
Spewing nonsense about voting machines that wantonly changed Trump votes to Biden votes prompted a $1.6 billion lawsuit on behalf of Dominion Voting Systems Corp., which argues that Fox hosts knew the truth, and studiously avoided it.
The Fox network’s defense is, of course, the same court case that DeSantis et al. would have the Supreme Court overturn. Fox lawyers contend “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by ‘New York Times v. Sullivan’.”
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So to be consistent with the wishes of its conservative overlords, the Supreme Court might be called upon to rule that the First Amendment protections as outlined in “Times v. Sullivan” are to be enjoyed by Fox News — but no one else. This will be an interesting needle to try to thread.
Yet even a generous reading of “Times” might not be enough to save Fox. When the cameras weren’t rolling, Fox stars including Tucker Carlson, Laura Ingraham and Sean Hannity by their own words were clearly aware of the truth, which they knowingly disregarded.
Fox will certainly argue that this is irrelevant — its celebrities were just “reporting” what others were saying. This may well work, but if it does, “Times” might indeed need some fine tuning.
The landmark ruling came at a high tide of public discourse. Gone were the sloppy factual errors and malignant insults of the 19th century press. Far in the future was social media, and an entire news network predicated on misinformation.
Neither the courts nor Walter Cronkite could have anticipated an era in which lying would be so profitable. The answer to this problem, naturally, would be to take the profit out of falsehoods disguised as news — something Dominion might help accomplish.
Tim Rowland is a Herald-Mail columnist.
This article originally appeared on The Herald-Mail: Dominion lawsuit against Fox News might fine-tune Times v. Sullivan
