Opinion | The Bigger Question Behind the Fox News Debacle

As Oscar Wilde might have put it, it would take a heart of stone not to enjoy the massive facepalm that should be today’s semi-official Fox News emoji.

Thanks to a flood of texts and emails that became public last week, we learned that key members of the Fox News team — from owner Rupert Murdoch on down — knew that former President Donald Trump’s “rigged election” assertions about the 2020 race were flatly false, but that saying so was driving away viewers, with potentially disastrous results. (“The stock price is down,” Tucker Carlson wailed.) To protect its turf, one executive warned, it was critical to “respect our audience” — which meant giving voice to the conspiracy theories and, with rare exceptions, letting those theories go unchallenged.

Beyond the schadenfreude lies a significant legal issue, and one that reaches beyond Fox News. The revelations suggest that Fox is highly vulnerable to a defamation verdict in the $1.6 billion case brought by Dominion Voting Systems, whose machines were at the heart of the most bizarre election lunacies. (No, the election was not stolen by Hugo Chavez, George Soros or the Clintons.) What the filings revealed was the equivalent of a courtroom confession, where the defendants in effect said: "Yes, we knew what we were airing was false, but we let the falsehoods air to keep our viewers happy.”

Why does this matter? Because — barring a powerful rebuttal from Fox — it means that Dominion has met a very high bar in defamation law. Because it’s in the public arena, Dominion has to prove that Fox knew they were airing lies, or “recklessly disregarded” the truth or falsehood of their reports.

It’s tempting to celebrate a verdict against Fox; “reckless disregard” might as well be its slogan. But a blow to the loudest media voice on the right would come at a time, ironically, when other conservatives have launched a fundamental attack on the free press that hits directly on the issue of defamation. At risk is a 58-year-old Supreme Court case that is a powerful protection of First Amendment rights: New York Times v. Sullivan.

In 1960, the NAACP took out a full-page fundraising ad in the New York Times, which criticized the Montgomery, Ala. police department’s treatment of protesters. The ad made a few minor factual errors — how many times Martin Luther King Jr. had been arrested, what songs the protestors sung. Montgomery County police commissioner L.B. Sullivan, who was not mentioned in the ad, sued the newspaper and won a judgment of $500,000 — the equivalent of nearly $5 million today. It was part of a wave of defamation suits brought across the South by public officials who were clearly intending to silence or bankrupt critics in and out of the press.

It was against this background that a unanimous Supreme Court overturned the verdict in 1964. But it went much further. The case, Justice William Brennan wrote, had to be framed in the context of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

To protect that principle, the court set down a new standard: When it comes to public officials, they had to prove not just that a statement was false and injurious, but that it was made with “actual malice” — an inartful term that meant not “ill will,” but that it was published with willful knowledge that it was false or with “reckless disregard.” (An example: We got an anonymous tip that the governor was beating his children, so we broadcast it.) That standard was not enough for Justices Hugo Black, Arthur Goldberg, and William Douglas, who argued that the First Amendment protection was absolute and unconditional — even lies were protected. The court later expanded the media’s protection from defamation suits so that “public figures” meant pretty much anyone in the public eye, from celebrities to business executives.

In recent years, New York Times v. Sullivan has gotten new scrutiny by powerful conservatives. In 2019, Supreme Court Justice Clarence Thomas argued for a reassessment, amid consideration of a libel lawsuit from a woman who accused Bill Cosby of sexual assault. In 2021, Justice Neil Gorsuch pointed to the radical change in the media landscape as a reason to reconsider the law: “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets, has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

While these justices did not make an explicitly ideological or partisan point, Federal Appeals Judge Lawrence Silberman did. In a remarkably blunt dissent in 2021 where he called for overturning New York Times v. Sullivan, Silberman wrote:

“Although the bias against the Republican Party — not just controversial individuals — is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), the New York Times and the Washington Post, are virtually Democratic Party broadsheets. And the news section of the Wall Street Journal leans in the same direction. The orientation of these three papers is followed by the Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television — network and cable — is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”

The call for weakening New York Times v. Sullivan is also emanating from conservatives in the more explicitly political arena. Trump, no stranger to litigation on both sides of the defamation issue, has argued for its overturn. It’s also now part of Florida Gov. Ron DeSantis’ nascent presidential campaign. In a roundtable discussion earlier this month, DeSantis said the ruling served as a shield to protect publications that “smear” officials and candidates. Indeed, the governor has gone further. A bill he proposed that has now been refiled in the Florida legislature would leave the press wide open to lawsuits, including by stating that comments made by anonymous sources would be presumed false in defamation suits.

In other words, if Woodward and Bernstein did not identify “Deep Throat,” or their countless other anonymous sources in Watergate reporting, their stories would have been presumed false under this bill. It would make the effective end of whistleblowers as a tool of investigative reporting. The bill’s sponsor told POLITICO it was also explicitly intended to spur a legal challenge to New York Times v. Sullivan¸ with the goal of overturning it.

None of this is to say that Fox News should escape judgment if its defense team cannot rebut the damaging evidence that is now on the record. But it doesn’t eliminate the need for great caution about the protection the Supreme Court gave the press nearly 60 years ago. In New York Times v. Sullivan, the court took away from public figures the power to bankrupt or intimidate their critics with a storm of litigation. We cannot put that power back in the hands of the powerful again.