Dominion’s lawsuit isn’t a Slam Dunk — But it’s not Fox News’ defense either

“If it belongs to Fox, the more ‘credible’ the lie, the more they have the right to disseminate it. However, the First Amendment does not give broadcasters the right to knowingly spread lies or disregard the truth,” a Dominion spokesperson said in a statement. “As our complaint alleges, Fox chose to sell a false story about Dominion to enhance its ratings. Now, by erroneously invoking the First Amendment, Fox is trying to change the story to cover up its complicity — from the top down — to knowingly spread lies. . Instead of acting responsibly and showing remorse, Fox has instead doubled down by publicly stating that they pride themselves on their Dominion-related coverage. We are confident that the truth will ultimately benefit and we will hold Fox accountable for the enormous and irreparable damage they have inflicted on Dominion.”

At this time, there is no sign of settlement and based on court records (as well as Fox’s decision to hire heavyweight litigators). Dan Webb), the case looks as if it could actually go to trial. It’s scheduled to begin in April 2023 in a Delaware state court, and two legal issues are likely to get a lot of attention: standards of error and defense of opinion. Some background information here is very helpful. Defamation is the publication of false statements that damage the reputation of a person or organization, and courts have developed principles to balance the interests of reputation and speech. What has emerged is a maze-like area of ​​law in which the plaintiff is generally unlikely to win, by proving multiple factors while resisting the other party’s defense.

The standard of error is one of those factors. Officials and public figures must prove that a libel statement was published with the knowledge that it is false or with disregard for its truth or falsehood (this is often referred to as the real malice). Dominion could be considered a public figure, assuming, for example, that the court concluded that the company was prominent in its field before Fox made it a household name. Furthermore, Dominion’s complaint and pre-trial actions justified that Fox acted with genuine malice and in its judgments about other things move the court held that Dominion had pleaded in full for that stage of the proceedings.

Undoubtedly, during investigations and interrogations, along with Fox’s efforts to collect emails and messages, Dominion is probing the extent to which Fox employees knew they made false statements. facts or publish them recklessly without regard for their truth or falsehood. The latter ask for proof about their “high level of awareness of possible forgery.” This will take into account whether Fox’s sources are trustworthy, whether Fox ignored obvious indications that the claims were false, whether Fox fully investigated the facts and motives. which form the statements. Reckless disregard is often a combination of these factors, and it’s possible that Dominion could prove it, based on what we know so far.

Next, defend the opinion. One of Fox’s arguments is that its coverage is more of opinion and exaggeration than fact. It’s a play on the sweeping First Amendment defenses of such wording. “There is no such thing as a false idea”, the Supreme Court once Was observed, added, “However malicious an opinion may seem, we depend on its correction not on the conscience of judges and juries but on the competition of opinions. other ants.” But these safeguards were not established, because the Court then note“wholesale defamation waiver for anything that can be labeled ‘opinion’.”

The difficulty is distinguishing opinion and exaggeration statements from factual statements. In short, facts can be true or false, and opinions are a matter of belief. In the Dominion litigation, some of the statements in question are true or false and others are expressions of belief implying unverified facts — one of which may be sued. Furthermore, for any opinion based on stated facts, events must be accurately presented and reasonably explained. Otherwise, as the Supreme Court hold, “Even if the speaker states facts on which he bases his opinion, if those facts are inaccurate or incomplete, or if his assessment of them is false, then that statement can still imply a false claim of truth.” This is definitely going to be a problem for Fox.

However, the open test, assuming yes, it will come at a time of growing concern about the role of disinformation in politics — and as defamation laws are being weaponized across the country. to score points and to exact revenge on the critics. Two exhibits: Former Republican congressman Devin Nunes recently sued CNN for $435 million and Mr. for 77.5 million dollars, in response to their critical comments about him; and Joe Arpaio, former Arizona sheriff, sued New York Times for nearly 150 million dollars after publishing a column calling him “a sadist masquerading as a public servant.” These suits were politically motivated and activism, and they failed for good reason.

By contrast, the Dominion lawsuit has significantly more merit, and it could reshape the conservative media landscape by delineating some political discourse and news coverage of false claims — and by how to encourage news organizations, especially cable networks, to be more cautious with their live programming and their guests, especially how hosts react to guests making unfounded claims keep.

All of which is to say: No, the Dominion cases are not cases, but if I were drawn into them, the way they look now, I’d rather have Dominion’s arguments.

This article has been updated with a statement from Dominion.

Jonathan Peters is a professor of media law at the University of Georgia, where he is also dean of the Department of Journalism.

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