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NEW YORK (AP) – Fox News is on an unexpected collision course with the two Republican presidential front-runners over reporters’ rights.
In defending itself in a major defamation lawsuit over how it covered false allegations about the 2020 presidential election, the network is relying on a nearly 60-year-old Supreme Court ruling that makes it difficult to successfully sue media organizations for defamation.
Former President Donald Trump and Florida Governor Ron DeSantis, two favorites of many Fox News viewers, recommended that the court reconsider the standard, which is considered a basic offense in American defamation law.
“It is ironic that Fox is relying on a landmark case designed to help the media play a democratic watchdog role and is being attacked by Gov. DeSantis, Donald Trump and other people who were not arrested for their attacks on journalists. as enemies of the people,” said Jane Hall, a communications professor at American University.
Eye-catching evidence has emerged in court papers in recent weeks that reveals a dividing screen between what Fox was telling its viewers about false claims of election fraud and what executives and management were saying about them behind the scenes. “Sydney Powell is a liar,” Fox News host Tucker Carlson said in a text to a producer, referring to one of the attorneys who disputed Trump’s claims.
In an email a few weeks after the 2020 election, the Chairman of Fox Corp. Rupert Murdoch described a news conference that included Powell and former New York City Mayor Rudy Giuliani, another lawyer who pushed the election lie: “Really crazy stuff. And it hurts.”
Aside from the revelations about Fox’s inner workings, the outcome could have far-reaching implications for media organizations because of how they and the courts rely on the corruption law that Fox uses as a shield.
In its $1.6 billion lawsuit, voting machine maker Dominion Voting Systems says Fox has repeatedly raised allegations that the company helped rig the election for Trump even though many in the news organization privately believe the allegations are false.
Fox says the law allows it to reveal these allegations if they are relevant.
In a 1964 decision in a case involving the New York Times, the United States Supreme Court severely limited the ability of government officials to sue for defamation. It ruled that news outlets are protected from a libel suit unless they can be proven to have published it with “actual malice” – knowing something to be false or acting with “reckless disregard” for whether it was true or not.
In one example of how the law was used, Times editors admitted last year that an editor mistakenly linked a speech by former Republican vice president Sarah Palin to the mass shooting in Arizona. Palin lost her criminal case because she could not prove the newspaper was wrong without worrying about the truth.
Some free-speech advocates worry that the Dominion-Fox case could finally give the hardline Supreme Court an opportunity to revisit the standard set out in the case, known as New York Times Co. v. Sullivan. Although the case is one of the court’s longest-running cases, the newly empowered majority has shown a willingness to challenge what was thought to be a settled law – as it did last year in overturning abortion rights.
Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have publicly expressed interest in setting a different precedent.
Opposing the 2021 impeachment resolution, Gorsuch wrote that what began in 1964 as a decision to tolerate occasional errors to allow robust reporting “has turned into an ironclad subsidy for the publication of falsehoods of any kind and previously unimaginable magnitude.” He said that the modern media is very different today, and he suggested that it is less aware.
“My wish is that the parties settle and this case goes away,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota. “I don’t see any good coming out of it.”
The perceived power in the Dominion story also worries some newspaper supporters.
Dominion says Fox was actually torn between the fact that Joe Biden officially won the race and appeased viewers who wanted to believe Trump’s lies. In documents released last week, Murdoch pointed out that Fox as a network did not acknowledge the claims, but some of its commentators – Maria Bartiromo, Lou Dobbs, Jeanine Pirro and Sean Hannity – sometimes did.
Murdoch was among several at Fox to privately say they don’t believe claims made by Trump and his allies that widespread fraud cost him re-election. In his speech, Murdoch said he could have stopped the conspiring guests from going on air, but he didn’t.
“One of the safeguards is that even false speech by public figures is protected as long as the speaker believes it,” said First Amendment attorney Floyd Abrams. “But no one at Fox seems ready to say they believe what’s being said … and now there seems to be a lot of evidence that no one did. It’s a big blow.”
Fox’s entire prime-time lineup has privately disparaged Trump’s attorney Sidney Powell, according to court documents. Laura Ingraham, in a text to Carlson, called him a “nut.” In his speech, Hannity said he did not believe his views “for one second.” However, Powell was interviewed on Fox 11 times between Nov. 8 and Dec. 10, 2020, according to court documents.
Dominion’s lawyers say Fox argues that it has no legal responsibility to broadcast even the most outrageous allegations, knowing they are false, as long as they are considered news.
Fox said Dominion presented an extreme view of defamation, where the network had a duty not to report the allegations but to suppress or denounce them as false.
“Under Dominion’s approach, if the president falsely accuses the vice president of plotting to assassinate him, the media will be liable for reporting the allegations as newsworthy as long as someone in the newsroom thinks it’s funny,” Fox’s lawyers said in court papers.
“A law like that would stop the media in its tracks,” Fox said.
There’s a lot of room to prove defamation — and that’s intentional, says First Amendment attorney Lee Levine. Dominion must show that a reasonable audience could conclude that someone from Fox made the allegations, not just the interview subjects, he said.
Still, Levine said, Dominion has the strongest defamation case he’s seen in 40 years of involvement in the subject.
George Freeman, executive director of the Media Law Resource Center, said Fox should address a little-known standard of “neutral reporting” that dates back to a court case from the 1970s. It states that news organizations should not be discouraged from reporting important news even if there are serious doubts about the truth, as long as the information comes from reliable and reputable sources.
But the United States Supreme Court has not weighed in on that argument, and many lower courts have rejected it. It’s also unclear whether the defense will legally apply in Dominion’s lawsuit against Fox.
There is a feeling in Republican circles that Sullivan’s stance goes too far in protecting the news organizations.
DeSantis last month urged the Supreme Court to review defamation laws, saying they are used to smear politicians and discourage people from running for office. A bill being considered in the Florida Legislature would further weaken standards in the state. Trump said last year that the court should view his defamation suit against CNN as a “perfect vehicle” to review the submissions.
Some media laws encourage the University of Minnesota’s Kirtley to talk to them privately, people who are often eager to support the media in defamation cases, are worried about supporting Fox publicly in the voting machine case.
Many see the case as an act to hold Fox and Trump supporters accountable for what happens after the 2020 election, she said.
“I don’t think a conspiracy to disrespect is the right way to deal with this, and you have to think about what damage can be done to the legal system if Dominion wins,” he said.
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